Whether the United States Department of Labor Has the Authority to Control the Disclosure of Federal Employee Compensation Act Records Held by the United States Postal Service ( 2012 )

Whether the United States Department of Labor Has
the Authority to Control the Disclosure of Federal
Employee Compensation Act Records Held
by the United States Postal Service
The Federal Employee Compensation Act gives the Department of Labor the authority to control and
limit the disclosure of FECA records held by the United States Postal Service, and DOL’s FECA
regulations prohibit USPS from disclosing FECA records in a manner inconsistent with DOL’s
Privacy Act routine uses.
The Labor Department’s regulatory regime for FECA records is consistent with and furthers the
purposes of the Privacy Act.
Neither the Postal Reorganization Act nor the National Labor Relations Act authorizes USPS to control
the disclosure of FECA records.
November 16, 2012
MEMORANDUM FOR THE SOLICITOR
DEPARTMENT OF LABOR
The U.S. Department of Labor (“DOL”), through its Office of Workers’ Com-
pensation (“OWCP”), is responsible for administering the Federal Employee
Compensation Act (“FECA”). See Letter for Virginia Seitz, Assistant Attorney
General, Office of Legal Counsel, from M. Patricia Smith, Solicitor of Labor,
DOL at 1 (Jan. 23, 2012) (“Request Letter”). DOL has established a government-
wide system of records that contains all records created in the process of filing and
resolving FECA claims, including those held by other agencies. It has asserted
control over those records, and provided that they will generally be kept confiden-
tial. DOL has also published a notice pursuant to the Privacy Act of 1974 that
enumerates the circumstances in which FECA records may be disclosed. (These
circumstances are known as “routine uses.”) The United States Postal Service
(“USPS” or “Postal Service”) is the largest federal agency whose employees are
covered by FECA. Id. Like other agencies covered by FECA, USPS maintains
certain records related to the FECA claims its employees file. USPS has taken the
position that it has authority to control the FECA records in its possession, and it
has published its own Privacy Act notice listing routine uses that would permit it
to disclose its FECA records when DOL’s regulations would not. In light of this
conflict, you asked whether DOL has authority to control and limit the disclosure
of FECA records held by the Postal Service. Request Letter at 1.1
1
The request for this opinion came solely from DOL, and USPS declined to offer its views when
contacted by this Office. However, both DOL and USPS submitted extensive views letters on this
dispute to the Office of Management and Budget in October, 2010, and DOL provided those letters to
us. We considered those letters in preparing this opinion.
1
Opinions of the Office of Legal Counsel in Volume 36
We conclude that FECA gives DOL such authority, and that DOL’s FECA
regulations prohibit USPS from disclosing FECA records in a manner inconsistent
with DOL’s routine uses. We further conclude that DOL’s regulatory regime for
FECA records is consistent with and furthers the purposes of the Privacy Act.
USPS thus may not establish routine uses for FECA records that result in disclo-
sures that would not be permitted under DOL’s regulations. Finally, we disagree
with USPS’s arguments that the Postal Reorganization Act and the National Labor
Relations Act (“NLRA”) provide it with authority to control the disclosure of
FECA records.
I.
Two statutory schemes are particularly relevant to our analysis: FECA and the
Privacy Act. Initially passed in 1916, FECA is now codified in chapter 81 of title
5 of the United States Code.2 It “provides a comprehensive system of compensa-
tion for federal employees who sustain work-related injuries.” United States v.
Lorenzetti, 467 U.S. 167, 168 (1984). FECA grants the Secretary of Labor or her
designee exclusive authority to “administer[] and decide all questions arising
under” FECA. 5 U.S.C. § 8145 (2006); see Mathirampuzha v. Potter, 548 F.3d 70,
81 (2d Cir. 2008) (“Congress has vested the Secretary of Labor or her delegate
with exclusive authority to ‘administer[] and decide all questions arising under the
FECA.’” (quoting 5 U.S.C. § 8145) (alteration in original)). The Secretary has
delegated this authority to OWCP. See DOL, Delegation of Authorities and
Assignment of Responsibilities to the Director, Office of Workers’ Compensation
Programs, 74 Fed. Reg. 58,834, 58,834 (Nov. 13, 2009). FECA also authorizes the
Secretary to “prescribe rules and regulations necessary for the administration and
enforcement of [the Act].” 5 U.S.C. § 8149 (2006).
FECA and the accompanying DOL regulations establish a process through
which federal employees can submit claims of workplace-related injury or disease
to DOL for adjudication and compensation. Generally, the process involves
submission of a notice of a covered injury or disease accompanied by a claim form
with supporting evidence, followed by investigation and adjudication of the claim
by OWCP. If a claim is accepted, the employee receives relief in the form of
benefits and possible reassignment. See generally id. §§ 8101–8152 (2006 &
Supp. V 2011); Questions and Answers about the Federal Employees’ Compensa-
tion Act (FECA), available at http://www.dol.gov/owcp/dfec/regs/compliance/
DFECfolio/q-and-a.pdf (last visited Nov. 13, 2012).
Two features of this process are significant here. First, while DOL manages
much of the claims process, a claimant’s employing agency is also required to
2
See Pub. L. No. 64-267, 39 Stat. 742 (1916). FECA’s text frequently references its subchapters.
Because only the first subchapter is relevant here, we refer to that subchapter as “FECA” for ease of
reading.
2
Labor Department Control of Disclosure of FECA Records Held by USPS
participate. For example, the statute requires injured employees to provide notice
of and information about their injuries to their “immediate superior[s],” 5 U.S.C.
§ 8119, and instructs that, “immediately after an injury to an employee which
results in his death or probable disability, his immediate superior shall report to the
Secretary of Labor,” id. § 8120. See also, e.g., 20 C.F.R. § 10.100 (2012) (describ-
ing employee procedure for notifying supervisor of traumatic injury); id. § 10.110
(describing employing agency responsibilities when employees file such notices).
Employing agencies, including USPS, also contribute to the fund through which
injured employees are compensated. See 5 U.S.C. § 8147(b) (requiring agency
contributions to a general compensation fund); 39 U.S.C. § 2003(g) (2006)
(regulating timing of mandatory USPS deposits in the general fund).
Second, during the claims process, both the claimant and the employing agency
create and submit numerous records documenting the employee’s compensation
claim. The Secretary has substantial control over the information included in these
records. For example, in addition to giving the Secretary broad general authority to
administer and regulate FECA, the statute specifically permits the Secretary to
determine the required content in the immediate superior’s report of an employee
injury, and to require the filing of supplementary reports. See 5 U.S.C. § 8120. The
statute also instructs covered employees to submit their FECA claims “on a form
approved by the Secretary . . . [that] contain[s] all information required by the
Secretary.” Id. § 8121. DOL regulations further prescribe the forms that initiate
claims for compensation, the respective responsibilities of the employer and
employee in filling out these forms, and the timing and manner of their transmittal.
See, e.g., 20 C.F.R. § 10.7; id. § 10.111; id. § 10.102. The regulations also permit
employees and employing agencies to submit additional relevant evidence, such as
medical reports or other investigative materials. See, e.g., id. § 10.115. In addition,
during claim adjudication, an employing agency must submit any relevant facts in
its possession, may contest facts submitted by the claimant, and may conduct
certain independent assessments of the claimed injury or disability. See id.
§§ 10.117 & 10.118.
DOL has explained orally that, as a result of their involvement in the FECA
claims process, employing agencies typically have physical custody of certain
FECA records, including the records the employing agency gathers or creates
when an employee files a claim. In addition, during claim adjudication, DOL may
provide employing agencies with records it obtains from an injured employee.
According to DOL, employing agencies are given access to FECA records because
those agencies play a significant role in the submission and adjudication of FECA
claims and are generally responsible for their payment. See 5 U.S.C. § 8147(b).
The Privacy Act of 1974, 5 U.S.C. § 552a, is the second statutory scheme
relevant to this dispute. It was passed “to protect the privacy of individuals
identified in information systems maintained by Federal agencies,” and governs
the “collection, maintenance, use, and dissemination of information by such
agencies.” Pub. L. No. 93-579, § 2(a)(5), 88 Stat. 1896, 1896 (1974). The Privacy
3
Opinions of the Office of Legal Counsel in Volume 36
Act applies to any “record” kept in an agency “system of records.” The Act
defines a “record” as any information maintained by an agency pertaining to an
individual and linked to that individual through some means of specific identifica-
tion. See 5 U.S.C. § 552a(a)(4) (2006). It defines a “system of records” as any
group of records under the control of an agency from which information is
retrieved through use of an individual’s name or other identifying information. See
id. § 552a(a)(5). To promote transparency, the Privacy Act requires agencies to
publish a notice in the Federal Register announcing the establishment or revision
of their systems of records (commonly called a “system-of-records notice”) and
providing detailed information about the characteristics of each system, including
the sources and categories of the records the systems contain and the agency’s
procedures governing their use. See id. § 552a(e)(4).
As a general matter, the Privacy Act prohibits agencies from disclosing any
record contained in a system of records absent the written request or written
consent of the person to whom the records pertain. See id. § 552a(b). There are
exceptions to this general rule, including an exception permitting disclosures for a
“routine use.” Id. § 552a(b)(3). “Routine use” of a record is defined as “the use of
such record for a purpose which is compatible with the purpose for which it was
collected.” Id. § 552(a)(7). To employ the “routine use” exception, an agency must
describe all routine uses under which the agency will disclose records in the
relevant system-of-records notice. See id. § 552a(e)(4)(D). The requirement that a
published routine use be compatible with the purpose for which the record was
collected is known as the Privacy Act’s “compatibility requirement.”
To fulfill its obligations under the Privacy Act, DOL has published a system-
of-records notice covering FECA records. This notice, entitled “DOL/GOVT-1,
Office of Workers’ Compensation Programs, Federal Employees’ Compensation
Act File” (“DOL/GOVT-1”), describes the records DOL/GOVT-1 covers and the
routine uses for which they may be disclosed. Records covered by DOL/GOVT-1
may include, for example, DOL forms filed in connection with a FECA claim,
underlying medical records, payment records, hearing transcripts, demographic
information, investigative material, and consumer credit reports. See DOL,
Publication of Five New Systems of Records; Amendments to Five Existing
Systems of Records, 77 Fed. Reg. 1728, 1738 (Jan. 11, 2012) (republishing
DOL/GOVT-1 with amendment providing for an additional routine use). The
DOL/GOVT-1 system-of-records notice expressly states that DOL/GOVT-1
includes FECA records in the possession of other agencies. See id. at 1738
(DOL/GOVT-1 includes “[c]opies of claim forms and other documents” and in
some instances “original forms” related to FECA claims that are “maintained by
the employing agency”); see also DOL, Publication in Full of all Notices of
Systems of Records Including Several New Systems, 67 Fed. Reg. 16,816, 16,823
(April 8, 2002) (“It is presumed that most, if not all, federal agencies maintain
systems of records comprising a portion of [DOL/GOVT-1].”); DOL, Use and
Disclosure of [FECA] Claims File Material, 63 Fed. Reg. 56,752, 56,753 (Oct. 22,
4
Labor Department Control of Disclosure of FECA Records Held by USPS
1998) (“When . . . claim forms are submitted to the OWCP . . . all materials
relating to that claim or injury, whether in the possession of the OWCP or the
agency, are covered by DOL/GOVT-1, and thus subject to OWCP’s exclusive
control.”).
DOL has established twelve universal routine uses for records maintained in
any of its systems of records, and has supplemented that basic list with seventeen
routine uses specifically applicable to DOL/GOVT-1. 77 Fed. Reg. at 1729–30
(universal routine uses); id. at 1739–40 (DOL/GOVT-1 routine uses). DOL/
GOVT-1 further specifies that FECA records cannot be disclosed under a specific
routine use unless “the purpose of the disclosure is both relevant and necessary
and is compatible with the purpose for which the information was collected.” Id. at
1739.
Like DOL, USPS has published a system-of-records notice for the FECA rec-
ords in its possession, entitled “Office of Workers’ Compensation Programs
(OWCP) Record Copies.” This system of records overlaps with the system created
by DOL/GOVT-1. It includes FECA records related to claims filed by USPS
employees, such as “[r]ecords and supporting information related to the claim,
including copies of Department of Labor forms, postal forms and correspondence,
and automated payment and accounting records.” USPS 100.850, System of
Records, 70 Fed. Reg. 22,516, 22,530 (April 29, 2005). This USPS system-of-
records notice incorporates nine of the routine uses that USPS applies to all of its
systems of records. See id. at 22,521. There are substantial differences between the
disclosures allowed by DOL’s and USPS’s routine uses, and USPS’s routine uses
conflict with the routine uses in DOL/GOVT-1 because they allow some disclo-
sures that would not be permitted under DOL/GOVT-1.
II.
We first address whether FECA gives DOL exclusive authority to regulate the
disclosure of all FECA records—and therefore bars USPS from regulating the
disclosure of its FECA records in a manner that is inconsistent with DOL regula-
tions—or whether USPS’s status as an uniquely independent establishment in the
federal government gives it authority to control disclosure of the FECA records in
its possession. We then consider whether USPS’s regulation of FECA record
disclosure is barred by, or is inconsistent with, the purposes of, the Privacy Act.
Finally, we address whether USPS’s information disclosure obligations under the
NLRA give it the authority to establish a routine use permitting disclosure of
FECA records to labor unions when such disclosure is necessary for collective
bargaining.
5
Opinions of the Office of Legal Counsel in Volume 36
A.
DOL and USPS disagree about which agency has authority over FECA records
in the custody of the Postal Service and thus the responsibility to establish routine
uses for those records under the Privacy Act. See Request Letter at 1. DOL
contends that “it alone has authority over . . . FECA records for Privacy Act
purposes,” and that, as a result, “OWCP’s regulations and Privacy Act System of
Records Notice listing the routine uses of FECA file information extend govern-
ment-wide and cover the Postal Service.” Id. USPS, however, argues that it has
exclusive authority over FECA records in its custody. See Statement of the United
States Postal Service in Support of its Authority to Release Copies of OWCP
Records at 2–7 (Oct. 6, 2010) (“USPS Statement”) (attached to Request Letter).
USPS asserts that it is an agency with a uniquely independent status in the federal
government, “free from many facets of the federal bureaucracy,” including many
federal record-keeping statutes. Id. at 3. On this basis, it claims that it has authority
to control the disclosure of FECA records in its possession, even where disclosure
would not be permitted under DOL/GOVT-1’s routine uses. Id.
In our view, FECA gives DOL authority to control the disclosure of FECA
records in USPS’s possession. As set forth above, see supra p. 2, FECA gives the
Secretary of Labor exclusive authority to administer the FECA program, 5 U.S.C.
§ 8145, and to “prescribe rules and regulations necessary for the administration
and enforcement of [FECA],” id. § 8149. Although the text of FECA does not
explicitly address the maintenance and disclosure of FECA records, it does create
a claims process that expressly contemplates the creation of records related to
FECA claims, including by employing agencies, see supra pp. 2–3, and gives
DOL broad authority to prescribe the rules and regulations necessary to administer
that process, see id. For many years, DOL has held—and its regulations have
reflected—the view that its authority to regulate the FECA process includes
authority to control access to and disclosure of FECA records. We believe this is a
reasonable reading of the statute.
DOL’s predecessor, the United States Employees’ Compensation Commission,
long ago determined that its authority to administer and enforce FECA includes
the authority to regulate the maintenance and disclosure of the records the FECA
process generates, and further determined that regulating such disclosure was an
important part of administering FECA. Decades before Congress restricted
disclosure of personally-identifiable information through the Privacy Act, the
Compensation Commission relied on FECA’s broad grant of regulatory authority
to promulgate regulations making FECA records confidential. See 20 C.F.R. § 1.1
(1938) (“[FECA] authorizes the [United States Employees’ Compensation]
Commission to make necessary rules and regulations for the enforcement of the
Act and to decide all questions arising under the Act.”); see also id. § 1.21(a)
(1938) (“[Employment compensation] records and papers pertaining to
any . . . injury or death are confidential and no official or employee of a Govern-
6
Labor Department Control of Disclosure of FECA Records Held by USPS
ment establishment . . . shall disclose information from or pertaining to such
records to any person.”); 20 C.F.R. § 1.21 (1974) (same). DOL and other prede-
cessor entities have promulgated and enforced similar regulations ever since.
At present, DOL has two regulations that address the confidentiality, custody,
and control of FECA records. The first, 20 C.F.R. § 10.10, is entitled “Are all
documents relating to claims filed under the FECA considered confidential?”3 It
provides:
All records relating to claims for benefits, including copies of such
records maintained by an employer, are considered confidential and
may not be released, inspected, copied or otherwise disclosed except
as provided in the Freedom of Information Act [“FOIA”] and the
Privacy Act of 1974 or under the routine uses provided by
DOL/GOVT-1 if such release is consistent with the purpose for
which the record was created.
The second regulation, 20 C.F.R. § 10.11, is entitled “Who maintains custody and
control of FECA records?” It provides:
All records relating to claims for benefits filed under the FECA, in-
cluding any copies of such records maintained by an employing
agency, are covered by the government-wide Privacy Act system of
records entitled DOL/GOVT-1 (Office of Workers’ Compensation
Programs, Federal Employees’ Compensation Act File). This system
of records is maintained by and under the control of OWCP, and, as
such, all records covered by DOL/GOVT-1 are official records of
OWCP. The protection, release, inspection and copying of records
covered by DOL/GOVT-1 shall be accomplished in accordance with
the rules, guidelines and provisions of this part [i.e., DOL’s FECA
regulations], as well as those contained in 29 CFR parts 70 and 71
[i.e., DOL’s FOIA and general Privacy Act regulations], and with
the notice of the system of records and routine uses published in the
Federal Register. All questions relating to access/disclosure, and/or
amendment of FECA records maintained by OWCP or the employ-
ing agency, are to be resolved in accordance with this section.
As DOL explains, these regulations reflect the “careful control over the disclo-
sure of documents from [FECA] case files” that OWCP has maintained for
“decades.” DOL’s Position Statement at 1 (Oct. 1, 2010) (“DOL Statement”)
3
The FECA regulations were amended to their current interrogative form in 1997 to make them
easier to use. See DOL, Claims for Compensation under the Federal Employees’ Compensation Act, 62
Fed. Reg. 67,120, 67,120 (proposed Dec. 23, 1997) (to be codified at 20 C.F.R. pt. 10).
7
Opinions of the Office of Legal Counsel in Volume 36
(attached to Request Letter). Consistent with this view, a DOL Notice of Final
Rulemaking announcing a revision to an earlier version of 20 C.F.R. § 10.11 notes
that DOL “considers all records collected because a claim was filed seeking
benefits under FECA[] to be official records of the Department and, with one
limited exception, covered by DOL/GOVT-1.” DOL, Use and Disclosure of
Federal Employees’ Compensation Act Claims File Material, 63 Fed. Reg. 56,752,
56,753 (Oct. 22, 1998).4 The Notice further asserts that all materials covered by
DOL/GOVT-1 are “subject to OWCP’s exclusive control.” Id. DOL reaffirmed
this view when it finalized the regulation in its current form. See DOL, Claims for
Compensation Under the Federal Employees’ Compensation Act, 63 Fed. Reg.
65,284, 65,286 (Nov. 25, 1998).
Under the two regulations reproduced above, the Postal Service lacks authority
over the disclosure of FECA records in its possession. Both regulations expressly
cover “copies” of FECA records maintained by employing agencies other than
DOL; and both make clear that FECA records are confidential, and that “routine
use” disclosure is permissible only “under the routine uses provided by
DOL/GOVT-1.” 20 C.F.R. § 10.10; id. § 10.11.5 The plain text of these regulations
thus bars USPS from disclosing FECA records under a “routine use” that is
inconsistent with the DOL/GOVT-1 notice.6
These regulations constitute a valid exercise of DOL’s statutory authority under
FECA. As noted above, FECA grants the Secretary broad authority to “adminis-
ter[] and decide all questions arising under” FECA, and to “prescribe rules and
regulations necessary for the administration and enforcement of [FECA].” 5
U.S.C. §§ 8145, 8149. And FECA records are an integral part of the FECA
process. As DOL explains, “[t]he records maintained in [DOL/GOVT-1] are
created as a result of and are necessary to” DOL’s statutory duties of “processing
and adjudicating claims” for federal workers’ compensation. 67 Fed. Reg. at
16,827. In light of the importance of FECA records to the processing and adjudi-
cation of claims, DOL reasonably concluded that the question of when and how to
disclose FECA records “aris[es] under” FECA, and falls within the Secretary’s
jurisdiction. 5 U.S.C. § 8145; cf. Chevron, U.S.A., Inc. v. Natural Res. Def.
4
The “limited exception” referenced in the notice permits agencies to retain FECA forms in the
personnel folders of employees, in accordance with guidelines issued by the Office of Personnel
Management, if those forms were not submitted to OWCP. 63 Fed. Reg. at 56,753.
5
Because the DOL-USPS disagreement at issue does not concern disclosures of FECA records
under FOIA or provisions of the Privacy Act other than the routine use exception, we do not address
those issues. Cf. 5 U.S.C. § 552a(b)(1)–(2), (4)–(12) & (d) (2006) (providing for disclosure of Privacy
Act records other than through a “routine use”).
6
Even if the regulations were ambiguous, we would defer to DOL’s reasonable interpretation of
them. See Auer v. Robbins, 519 U.S. 452, 461–62 (1997) (the Secretary of Labor’s interpretation of a
DOL regulation, advanced in a legal brief, is “controlling unless plainly erroneous or inconsistent with
the regulation” (internal quotation marks omitted)).
8
Labor Department Control of Disclosure of FECA Records Held by USPS
Council, Inc., 467 U.S. 837, 843–44 (1984) (an agency’s reasonable construction
of a statute it is charged with administering is entitled to deference). The reasona-
bleness of DOL’s conclusion is supported by DOL’s consistent guarantee of the
confidentiality of FECA records since 1938. Cf. Good Samaritan Hosp. v. Shalala,
508 U.S. 402, 417 (1993) (the “consistency of an agency’s position is a factor in
assessing the weight that the position is due”); see supra p. 6 (describing history).
It was likewise reasonable for DOL to conclude that regulations protecting the
confidentiality and restricting the disclosure of FECA records are “necessary” for
the Act’s administration. 5 U.S.C. § 8149; cf. Chevron, 467 U.S. at 843–44. FECA
records often contain sensitive medical and health information, see, e.g., 20 C.F.R.
§ 10.115(f) (requiring submission of medical report), and disclosure of such
information may implicate significant individual privacy interests, cf. Plain Dealer
Pub. Co. v. Dep’t of Labor, 471 F. Supp. 1023, 1026 (D.D.C. 1979) (protecting
documents in an active OWCP claims file under FOIA exemption for “personnel
and medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy”). Protecting the confidentiality
of such information, except where DOL has determined that disclosure is con-
sistent with the purposes of FECA, serves those privacy interests. And prohibiting
other agencies from disclosing FECA records outside of DOL’s framework
ensures that these confidentiality interests are protected wherever the records are
physically maintained.
DOL’s protection of FECA records is also consistent with its efficient imple-
mentation of the Act. If DOL cannot ensure the confidentiality of FECA records,
employees may be deterred from submitting all information necessary to evaluate
their claims, to the detriment of DOL’s adjudication process. Cf. id. (describing
the serious harm that would result from public release of an OWCP claims file);
see also DOL Statement at 8 (“DOL does not want to risk an employee being less
than forthcoming in his workers’ compensation claim because he fears the
information will . . . not be held close[ly] by OWCP or that the information may
somehow be used against him in another, unrelated, proceeding.”).
In its submission to OMB, USPS challenges DOL’s control of the FECA rec-
ords in its possession, claiming that DOL control over the Postal Service’s copies
of FECA records would “improperly ignore[] the Postal Service’s unique inde-
pendence from many federal statutes and regulations.” USPS Statement at 1.
USPS contends that DOL’s exercise of authority over its FECA records would be
burdensome, requiring USPS to seek DOL’s permission every time it wishes to
disclose a FECA record, and would intrude on the Postal Service’s statutory
independence. Id. at 2–4. In making these arguments, USPS relies on 39 U.S.C.
§ 410(a) (2006), a provision of the Postal Reorganization Act of 1970, as amend-
ed, 39 U.S.C. §§ 101–5605 (2006 & Supp. V 2011) (“PRA”). That provision states
that, “[e]xcept as provided in subsection (b) of this section, and except as other-
wise provided in this title . . . no Federal law dealing with public or Federal
contracts, property, works, officers, employees, budgets, or funds . . . shall apply
9
Opinions of the Office of Legal Counsel in Volume 36
to the exercise of the powers of the Postal Service.” Id. § 410(a). USPS notes that
it views all records in its possession as USPS “property,” and has therefore
historically relied on section 410(a) as authority for its independence from statutes
regulating records (e.g., the Federal Records Act, 44 U.S.C. §§ 3101–3107
(2006)). USPS Statement at 3–4.
We agree that the Postal Service has a unique status within the federal govern-
ment. But it has no general characteristic that exempts its FECA records from
DOL’s regulatory regime. Instead, the question whether the Postal Service is
subject to the burdens and obligations imposed by FECA is a matter of statutory
interpretation. And here, Congress, through the PRA, expressly subjected USPS to
FECA, and thus to DOL’s control of FECA records.
Although the PRA relieved USPS from its obligation to comply with “many . . .
statutes governing federal agencies,” it also “specifically subjected [USPS] to
some others.” U.S. Postal Serv. v. Flamingo Indus. (USA), Inc., 540 U.S. 736, 741
(2004). Indeed, the PRA provision USPS cites, section 410(a), states that the
Postal Service is exempt from various federal laws “except as otherwise provided
in this title.” 39 U.S.C. § 410(a) (emphasis added). Another provision of the
relevant title, 39 U.S.C. § 1005(c), expressly provides that “[o]fficers and
employees of the Postal Service shall be covered by subchapter I of chapter 81 of
title 5, relating to compensation for work injuries.” 39 U.S.C. § 1005(c) (2006).
And subchapter I of chapter 81 of title 5 codifies the FECA statute, including
(among other things) the Secretary of Labor’s authority to enforce and administer
FECA. 5 U.S.C. § 8149. Thus, under the PRA’s plain language, USPS officers and
employees are “covered” by FECA, including the provisions authorizing the
Secretary of Labor to issue regulations governing FECA records. 39 U.S.C.
§ 1005(c).7 Far from exempting USPS from DOL’s authority to administer FECA,
the PRA clarifies that USPS falls within the ambit of DOL’s FECA authority.8
7
By stating that FECA benefits will be provided to USPS “officers and employees,” the PRA
necessarily subjects USPS to the obligations that FECA imposes on employers, including the
obligation to abide by DOL’s regulations regarding disclosure of FECA records.
8
In its views letter for OMB, USPS cites a 2002 statement in which DOL asserted that it has
“control over [the FECA system of records] to the same extent as the Office of Personnel Management
[OPM] has control over systems of records containing federal employee personnel records.” USPS
Statement at 5 (quoting DOL, Publication of all Notices of Systems of Records, 67 Fed. Reg. 16,816,
16,823 (April 8, 2002) (internal quotation marks omitted)). USPS then notes that OPM specifically
disclaims authority over USPS personnel files, and contends that, by comparing its control over FECA
records to OPM’s control over personnel records, DOL must have been conceding that its control over
FECA records does not extend to USPS files. Id. But DOL plainly has not disclaimed authority over
FECA records in USPS’s possession. Instead, in its 2002 statement, DOL appears to be pointing out
that its authority over the FECA system of records is generally similar to OPM’s authority over
personnel records, and (in particular) that its authority extends to files held by other agencies. See
5 C.F.R. § 293.301 (2012). Furthermore, OPM disclaims authority over USPS personnel files because
USPS has an independent personnel system, see 39 U.S.C. § 410(a). In contrast, USPS does not have
an independent employee compensation system, but rather is subject to FECA.
10
Labor Department Control of Disclosure of FECA Records Held by USPS
B.
DOL also suggests that the Privacy Act independently gives it authority to
control the disclosure of FECA records through DOL/GOVT-1. See DOL’s Reply
to USPS at 1–2 (undated) (“DOL Reply”) (attached to Request Letter). Specifical-
ly, DOL notes that OMB, the agency with authority to oversee implementation of
the Privacy Act, has issued guidance that would forbid USPS from either creating
a system of records that overlaps with DOL’s government-wide system of FECA
records or establishing inconsistent routine use exceptions. USPS counters that
OMB’s guidance does not apply to it. See USPS Statement at 4–6.
We agree that OMB’s guidance suggests that DOL’s assertion of exclusive
control over the disclosure of FECA records under its government-wide system-
of-records notice is consistent with and furthers the purposes of the Privacy Act.
However, for the reasons explained below, we decline to resolve whether OMB’s
guidance actually binds USPS in this situation.
The Privacy Act gives OMB the authority to “develop and, after notice and
opportunity for public comment, prescribe guidelines and regulations for the use
of agencies in implementing [the Privacy Act],” and to “provide continuing
assistance to and oversight of the implementation of [the Privacy Act].” 5 U.S.C.
§ 552a(v) (2006). One OMB Privacy Act guidance document recognizes the
category of government-wide systems of records, and directs other agencies not to
publish their own systems of records that duplicate such government-wide
systems:
Government[-]wide Systems of Records. Certain agencies publish
systems of records containing records for which they have govern-
ment[-]wide responsibilities. The records may be located in other
agencies, but they are being used under the authority of and in con-
formance with the rules mandated by the publishing agency. . . .
Agencies should not publish systems of records that wholly or partly
duplicate existing government[-]wide systems of records.
OMB Circular A-130, Transmittal No. 1, Management of Federal Information
Resources, 58 Fed. Reg. 36,068, 36,078 (July 2, 1993). Under this guidance,
agencies may not publish—and therefore cannot utilize—separate routine uses for
records that are part of a government-wide system maintained by another agency.
See 5 U.S.C. § 552a(b)(3), (e)(4)(D) (permitting routine uses as “described under
subsection (e)(4)(D),” which requires their publication in systems-of-records
notices). OMB’s guidance thus seeks to ensure that the only routine use disclo-
sures of records in government-wide systems will be those established in the
relevant system-of-records notice.
OMB expanded on this guidance in a later document implementing a Presiden-
tial Memorandum issued by President Clinton on May 14, 1998, which directed
11
Opinions of the Office of Legal Counsel in Volume 36
heads of executive departments and agencies to conduct, “in accordance with
instructions to be issued by [OMB],” a variety of tasks related to Privacy Act
requirements. Memorandum on Privacy and Personal Information in Federal
Records, 1 Pub. Papers of Pres. William J. Clinton 759, 759 (May 14, 1998).
OMB’s subsequent instructions stated in part:
[A]gency systems of records should not duplicate or be combined
with those systems which have been designated as “government
wide systems of records.” A government wide system of records is
one for which one agency has regulatory authority over records in
the custody of many different agencies. . . . Such government-wide
systems ensure that privacy practices with respect to those records
are carried out in accordance with the responsible agency’s regula-
tions uniformly across the federal government. For example, a civil-
ian agency subject to the personnel rules of the Office of Personnel
Management should manage its official personnel folders in accord-
ance with the government wide notice published by OPM for those
records, OPM/GOVT-1. The custodial agency need not, and should
not, publish a system of records which covers the same records.
Memorandum for Heads of Departments and Agencies, from Jacob J. Lew,
Director, Office of Management & Budget, Re: Instructions on Complying with
President’s Memorandum of May 14, 1998, “Privacy and Personal Information in
Federal Records,” Att. B (Jan. 7, 1999) (“Memorandum 99-05”).
These OMB documents demonstrate that DOL’s assertion of authority over
FECA records is consistent not only with FECA, but also with the purposes of the
Privacy Act, as interpreted by OMB in Circular A-130 and Memorandum 99-05.
DOL’s designation of DOL/GOVT-1 as a government-wide system of records, see
supra p. 7; 67 Fed. Reg. at 16,825, comports with OMB’s definition, see Memo-
randum 99-05, Att. B (defining government-wide system of records as a system
including records for which a single agency has government-wide responsibili-
ties). Thus, under the terms of OMB’s guidance, DOL/GOVT-1 should be the sole
system that includes FECA records, in order to ensure uniform privacy protection
for such records across the government. See Memorandum 99-05, Att. B (“[G]ov-
ernment-wide systems ensure that privacy practices with respect to those records
are carried out in accordance with the responsible agency’s regulations uniformly
across the federal government.”). DOL’s FECA regulations further these Privacy
Act objectives.
We do not determine here, however, whether OMB’s guidance either binds
USPS or provides an independent source of authority for DOL’s exclusive control
over FECA records. As USPS points out, while the Privacy Act itself applies to
the Postal Service, “no regulation issued under [the Privacy Act] shall apply to the
Postal Service unless expressly made applicable.” 39 U.S.C. § 410(b). According
12
Labor Department Control of Disclosure of FECA Records Held by USPS
to USPS, the OMB guidance fails this test. USPS Statement at 4. In our view, it is
unclear whether either Circular A-130 or Memorandum 99-05 has been “expressly
made applicable” to the Postal Service. Although the relevant portion of Circular
A-130, Appendix I, does not mention USPS by name, it defines “agency” by
express cross-reference to the Privacy Act, which includes USPS within its
definition of “agency.” See 5 U.S.C. § 552a(a)(1).9 Circular A-130 also states that
it “applies to all agencies subject to the Act.” 58 Fed. Reg. at 36,075 (emphasis
added). Memorandum 99-05, for its part, likewise uses the term “agency” without
specifically mentioning USPS, but does so while discussing Privacy Act obliga-
tions, which (given the Privacy Act’s inclusion of USPS in its definition of
“agency”) might include USPS. Memorandum 99-05, Att. B. It is thus not
immediately apparent whether the guidance in either document has been made
“expressly applicable” to USPS. As set forth in Part II.A above, however, FECA
by itself gives DOL the authority to control the disclosure of FECA records held
by USPS. Accordingly, we need not decide whether OMB’s regulations inde-
pendently give DOL the same authority.10
C.
USPS’s final argument is that the NLRA requires it to maintain a routine use
permitting disclosure of FECA records to labor unions. USPS points out that it is
the “only federal entity subject to the National Labor Relations Act,” a statute that
governs certain aspects of the employer-employee relationship, including collec-
tive bargaining. USPS Statement at 7.11 USPS argues that the NLRA requires it “to
provide unions with otherwise confidential information”—including FECA
records—“when that information is relevant to the unions’ role in collective
bargaining.” Id. at 8. USPS thus concludes that it must be authorized to establish a
routine use permitting, “[a]s required by applicable law,” disclosure of OWCP
records “to a labor organization when needed by that organization to perform its
9
The Privacy Act’s definition of “agency” cross-references and incorporates by reference the FOIA
definition of “agency” in 5 U.S.C. § 552(e), which, after amendment, is now contained in 5 U.S.C.
§ 552(f)(1) (2006). See Pub. L. No. 99-570, § 1802(b), 100 Stat. 3207, 3207-049 (1986); Pub. L. No.
104-231, § 3, 110 Stat. 3048, 3049 (1996). There is no dispute that FOIA’s definition of “agency”
covers USPS.
10
DOL also devotes a substantial portion of its OMB submission to arguing that, under the Privacy
Act’s compatibility requirement, “routine use” disclosures are permissible only for purposes closely
related to the purpose for which records were collected, and that some of USPS’s routine uses—
including the one providing for disclosures of FECA records related to collective bargaining—do not
meet this standard. See DOL Statement at 6. Our conclusion that FECA gives DOL authority to control
disclosure of FECA records means that, whether or not USPS’s routine uses satisfy the compatibility
requirement, USPS may not promulgate its own routine uses for FECA records. Thus, we need not
resolve this issue here.
11
Other federal entities are covered by the Federal Service Labor-Management Relations Act, 5
U.S.C. §§ 7101–7135 (2006 & Supp. V 2011).
13
Opinions of the Office of Legal Counsel in Volume 36
duties as the collective bargaining representative of Postal Service employees.” 70
Fed. Reg. at 22,521; see USPS Statement at 9.
For two reasons, we do not believe that the NLRA gives USPS authority to
establish a routine use permitting disclosure to labor unions for purposes related to
collective bargaining. First, as set forth above, FECA gives DOL broad authority
over the FECA process, including the power to control disclosure of FECA
records. The NLRA, in contrast, does not directly address the disclosure of FECA
records, and nothing in its text suggests that it should be read to displace DOL’s
authority over the government-wide FECA system of records. As a result, the best
way to harmonize DOL’s broad authority over FECA records with the possibility
that the NLRA (or some other statute) might sometimes require those records’
disclosure is to presume that the entity with control of the records—DOL—will
authorize the disclosure of FECA records when and if disclosure is in fact
required. See infra note 14. USPS’s potential disclosure obligations under the
NLRA, in other words, do not give rise to an inference that USPS must have
independent authority to promulgate routine uses for FECA records.
Second, as a practical matter, the potential for conflict between USPS’s obliga-
tions under the NLRA and FECA is insufficient to support an inference that
Congress intended to authorize USPS to control disclosure of the FECA records in
its possession. It is true that the NLRA imposes on employers a duty to “bargain
collectively,” 29 U.S.C. § 158(a)(5) (2006), which includes a broad obligation “to
provide relevant information needed by a labor union for the proper performance
of its duties as the employees’ bargaining representative.” Detroit Edison Co. v.
NLRB, 440 U.S. 301, 303 (1979); see also USPS Statement at 8. But this duty
requires the provision of information, not particular documents, and it is not
absolute. See, e.g., Detroit Edison, 440 U.S. at 318 (the duty to disclose infor-
mation can be outweighed by legitimate privacy interests in the requested
information); cf. NLRB v. U.S. Postal Serv., 841 F.2d 141, 146 (6th Cir. 1988)
(NLRB I) (applying Detroit Edison to evaluate privacy interests involved in
disclosure of records covered by USPS collective bargaining routine use); NLRB v.
U.S. Postal Serv., 660 F.3d 65, 66 (1st Cir. 2011) (NLRB II) (USPS employees
have a “legitimate and substantial privacy interest in their test scores” which the
NLRB must balance against the union’s interests); NLRB II, 660 F.3d at 77
(USPS’s routine use authorizing disclosure of certain records neither mandates
disclosure nor “defeat[s] all expectations of privacy” in the covered information).12
12
USPS itself has recognized that the NLRA’s disclosure obligation is not absolute. See NLRB v.
U.S. Postal Serv., 660 F.3d 65, 68 (1st Cir. 2011) (referencing USPS argument that the NLRA did not
require it “to release employee test scores unconditionally under the routine use exception”). The cases
USPS cites in its OMB submission are not to the contrary. Three of those cases recognize that the
NLRA’s disclosure obligations are not absolute. See NLRB v. U.S. Postal Serv., 888 F.2d 1568, 1572 &
n.3 (11th Cir. 1989) (the NLRA’s disclosure obligations do not absolutely require disclosure of all
relevant information in all cases); NLRB I, 841 F.2d at 146 (“[T]he union’s right to disclosure of
relevant information is not absolute.”); U.S. Postal Serv. v. Nat’l Ass’n of Letter Carriers, 9 F.3d 138,
14
Labor Department Control of Disclosure of FECA Records Held by USPS
To be sure, employers cannot simply refuse to give unions sensitive information;
rather, employers must accommodate a union’s reasonable request for information
while protecting the privacy interests involved by, for example, obtaining
employee consent to disclosure, redacting records, or submitting records in a
summary format. See, e.g., Detroit Edison, 440 U.S. at 317 (consent); Oil,
Chemical & Atomic Workers, Local Union No. 6 v. NLRB, 711 F.2d 348, 363
(D.C. Cir. 1983) (redaction); U.S. Testing Co. v. NLRB, 160 F.3d 14, 21 (D.C. Cir.
1998) (redaction); Pa. Power and Light Co., 301 N.L.R.B. 1104, 1107 (1991)
(summary).
Relevant here, the privacy interests in FECA records, which often include
medical reports, are substantial. See DOL Statement at 7; see also, e.g., U.S.
Testing, 160 F.3d at 21; Oil, Chemical & Atomic Workers, 711 F.2d at 363. And,
in most (if not all) cases, a union’s need for information about FECA claims in
collective bargaining will not require receipt of individual FECA records of a
given employee, but instead will be capable of satisfaction through a compilation,
summary, or aggregation of anonymized information concerning one or more
employees.13 It thus seems likely that the balance between privacy interests and the
union’s need for information would not generally require the disclosure of the
records under Detroit Edison. Cf. id. at 319 (weighing the “sensitive nature” of the
information requested in that case against the “minimal burden” that a privacy-
protecting accommodation would have placed on the union).14 The very limited
144 (D.C. Cir. 1993) (noting the Detroit Edison exception to the NLRA’s disclosure requirement); id.
at 149–50 (Randolph, J., dissenting) (same). The fourth case denied an NLRB order requiring
disclosure of certain personnel files on the grounds that they were not needed for collective bargaining,
and thus did not consider Detroit Edison balancing. See NLRB v. U.S. Postal Serv., 128 F.3d 280, 283–
85 (5th Cir. 1997).
13
There may be circumstances in which a specific FECA record is essential to determination of an
employee’s individual grievance; and because an employer’s obligation to provide information extends
through the term of any collectively bargained agreement, see NLRB v. Acme Indus. Co., 385 U.S. 432,
436 (1967), the NLRA might require disclosure of the record to a union assisting an employee with his
or her grievance. However, the Privacy Act authorizes the disclosure of FECA records to a union in
that setting with employee consent. See 5 U.S.C. § 552a(b).
14
If a situation did arise in which the Detroit Edison balance tipped in favor of disclosure of a
FECA record, DOL would have to consider how best to reconcile the NLRA with the Privacy Act. The
NLRA might be interpreted as either (i) requiring DOL to create a routine use permitting disclosure in
such circumstances (if concerns about the Privacy Act’s compatibility requirement could be over-
come); or (ii) in effect creating a statutory exception to the Privacy Act’s general confidentiality
requirement, a kind of legislatively-created routine use, permitting disclosure in those circumstances.
Cf. OMB, Privacy Act Guidelines, 40 Fed. Reg. 28,949, 28,954 (July 9, 1975) (disclosures expressly
required by laws other than FOIA are “in effect congressionally-mandated ‘routine uses’”); U.S. Postal
Serv. v. Nat’l Ass’n of Letter Carriers, 9 F.3d 138, 143 (D.C. Cir. 1993) (opinion of Silberman, J.)
(USPS could have an obligation under the NLRA to publish a routine use); Dep’t of Def. v. FLRA, 510
U.S. 487, 506 n.3 (1994) (Ginsburg, J., concurring) (suggesting that agencies have discretion to publish
their routine uses, but noting possibility of obligatory routine uses raised in Letter Carriers). On the
other hand, it may be that under the PRA, the NLRA would not in fact require USPS to disclose FECA
records to a union if doing so would violate DOL’s FECA regulations. The PRA states that USPS’s
15
Opinions of the Office of Legal Counsel in Volume 36
potential for conflict between USPS’s NLRA obligations and DOL’s FECA
regulations is a further reason why we would not treat Congress’s decision to
apply the NLRA to USPS as an indicator that USPS must have authority to
regulate the disclosure of the FECA records in its possession.15
III.
In sum, we conclude that DOL has authority to control the disclosure of FECA
records, including those in the possession of USPS, and that DOL’s exercise of
this authority is consistent with and furthers the purposes of the Privacy Act. We
further conclude that USPS is not separately authorized to control the disclosure of
FECA records by virtue of its independent status within the federal government, or
by the NLRA.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
“[e]mployee-management relations shall . . . be subject to” the NLRA only “to the extent not
inconsistent with the provisions of [title 39].” 39 U.S.C. § 1209(a) (2006); DOL Reply at 3. Title 39, in
turn, subjects USPS to both the Privacy Act and FECA. The PRA might thus be interpreted to require
USPS to comply with the NLRA generally, but to make an exception to the extent that the NLRA
required a disclosure barred under the Privacy Act or FECA. Cf. Letter Carriers, 9 F.3d at 147
(Williams, J., concurring) (noting possibility that PRA may require NLRA disclosures only to the
extent not barred by the Privacy Act). While the application of OMB’s Privacy Act’s guidance to USPS
is uncertain, see supra Part II.B, FECA, as administered by DOL pursuant to its statutory authority,
plainly prohibits USPS from disclosing FECA records in contravention of DOL’s FECA regulations.
Accordingly, under the PRA, USPS is arguably not required to disclose FECA records in contravention
of DOL’s FECA regulations promulgated under FECA. This is, however, another issue we are not
required to resolve.
15
USPS also claims that it may be required to disclose FECA records in proceedings before the
United States Equal Employment Opportunity Commission (“EEOC”) and the United States Merit
Systems Protection Board (“MSPB”), and that limiting disclosure in such proceedings would be
“unworkable and contrary to Congressional intent.” USPS Statement at 6–7. However, USPS does not
point to any provision in the statutes establishing the EEOC or the MSPB that would confer disclosure
authority on USPS, let alone override the authority conferred on DOL by FECA. We further note that
DOL has already published a routine use that allows the production of otherwise private records to a
“court or adjudicative body” where such disclosure is necessary. 77 Fed. Reg. at 1730. It may be that
the EEOC and the MSPB would constitute “adjudicative bod[ies],” and therefore that such disclosures
are already authorized.
16