Disclosure of Employee Appraisals to a Member of the Defense Nuclear Facilities Safety Board ( 2015 )

Disclosure of Employee Appraisals to a Member
of the Defense Nuclear Facilities Safety Board
In the circumstances presented here, the organic statute of the Defense Nuclear Facilities
Safety Board requires the Chairman to grant a requesting Board member access to
written performance appraisals of Senior Executive Service employees.
In these circumstances, the Privacy Act does not bar the disclosure of those appraisals to
the requesting Board member.
May 21, 2015
MEMORANDUM OPINION FOR THE ACTING CHAIRMAN
DEFENSE NUCLEAR FACILITIES SAFETY BOARD *
The Defense Nuclear Facilities Safety Board (“Board”) was established
in 1988 as an independent establishment in the Executive Branch charged
with advising the Secretary of Energy about public health and safety
protections at defense nuclear facilities. See National Defense Authoriza-
tion Act, Fiscal Year 1989, Pub. L. No. 100-456, sec. 1441(a)(1), §§ 311–
12, 102 Stat. 1918, 2076–78 (1988) (codified as amended at 42 U.S.C.
§§ 2286(a), 2286a(a) (2012)). The Board is composed of five members,
one of whom is designated by the President as its Chairman. 42 U.S.C.
§ 2286(b)(1), (c)(1). The Chairman acts as the Board’s “chief executive
officer,” and, “subject to such policies as the Board may establish, . . .
exercise[s] the functions of the Board with respect to . . . the appointment
and supervision of employees of the Board” and other specified matters.
Id. § 2286(c)(2). Each of the Board’s members is entitled to “equal re-
sponsibility and authority in establishing decisions and determining ac-
tions of the Board”; “full access to all information relating to the perfor-
mance of the Board’s functions, powers, and mission”; and one vote. Id.
§ 2286(c)(5).
In light of this division of authority between the Board and the Chair-
man, and in light of the restrictions imposed by the Privacy Act of 1974,
5 U.S.C. § 552a, your office asked us to clarify the scope of the Chair-
man’s authority to disclose written performance appraisals of Senior
Executive Service (“SES”) employees to a Board member who has asked
* Editor’s Note: Some names and titles have been redacted from this opinion to protect
the privacy of individuals.
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39 Op. O.L.C. 1 (2015)
to see them. See Letter for Karl R. Thompson, Principal Deputy Assistant
Attorney General, Office of Legal Counsel, from Peter S. Winokur, Chair-
man, Defense Nuclear Facilities Safety Board at 1 (Aug. 4, 2014). This
question was prompted by a disagreement between the requesting Board
member, who asserts that the Board’s organic statute grants him a right
to view the appraisals, and the Office of General Counsel (“OGC”), which
contends both that the organic statute does not grant the member a right
to view the appraisals and that the Privacy Act prohibits their disclosure.
See id. at 1–2. 1 We conclude that in the circumstances presented here,
the Board’s organic statute requires the Chairman to grant the requesting
Board member access to SES performance appraisals, and that the Privacy
Act does not bar their disclosure.
I.
We begin with the Board’s organic statute, 42 U.S.C. §§ 2286–2286l,
leaving aside for the moment any restrictions on disclosure the Privacy
Act may impose. Section 2286(c) of this statute sets forth the respective
authorities of the Board’s Chairman and its members. Paragraph (2),
1 The Board member and OGC set forth their views in a series of memoranda submit-
ted to the Chairman. See Memorandum for Peter S. Winokur, Chairman, Defense Nuclear
Facilities Safety Board, from the Office of General Counsel, Defense Nuclear Facilities
Safety Board, Re: Disclosure of Senior Executive Service Performance Appraisals
(May 22, 2014) (“OGC Memorandum”); Memorandum for Peter S. Winokur, Chairman,
Defense Nuclear Facilities Safety Board, from a Member, Defense Nuclear Facilities
Safety Board, Re: Analysis of Enabling Statute in Light of a Member’s Request for Access
to Performance Appraisals (May 29, 2014) (“Member Memorandum”); Memorandum for
Peter S. Winokur, Chairman, Defense Nuclear Facilities Safety Board, from the Office of
General Counsel, Defense Nuclear Facilities Safety Board, Re: Disclosure of Senior
Executive Service Performance Appraisals—Reply to Board Member Analysis (June 3,
2014) (“OGC Reply”); Memorandum for Peter S. Winokur, Chairman, Defense Nuclear
Facilities Safety Board, from a Member, Defense Nuclear Facilities Safety Board, Re:
Reply to [OGC] Memo of June 3, 2014 (June 4, 2014) (“Member Reply”). We also
requested and received the views of the Office of Management and Budget (“OMB”) and
the Office of Personnel Management (“OPM”) about the issues addressed in this opinion.
See Memorandum for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of
Legal Counsel, from Steven D. Aitken, Deputy General Counsel, OMB (Oct. 17, 2014);
Memorandum for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, from Kamala Vasagam, General Counsel, OPM (Mar. 11, 2015). The Board has
agreed to be bound by our decision. See Affirmation of Board Voting Record, Doc. No.
2014-136 (Sept. 11, 2014).
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Disclosure of Employee Appraisals to a Member of the DNFSB
which concerns the Chairman, provides that, “[i]n accordance with para-
graph (5), the Chairman shall be the chief executive officer of the Board
and, subject to such policies as the Board may establish, shall exercise the
functions of the Board with respect to” three administrative matters: “(A)
the appointment and supervision of employees of the Board; (B) the
organization of any administrative units established by the Board; and (C)
the use and expenditure of funds.” Id. § 2286(c)(2). The referenced “para-
graph (5),” in turn, describes the authorities of the Board’s members. It
states that “[e]ach member of the Board . . . shall (A) have equal respon-
sibility and authority in establishing decisions and determining actions of
the Board; (B) have full access to all information relating to the per-
formance of the Board’s functions, powers, and mission; and (C) have
one vote.” Id. § 2286(c)(5).
As both the requesting Board member and OGC agree, section
2286(c)(5)(B) grants each Board member a right of access to records
that “relat[e]” to the Board’s “functions, powers, [or] mission,” and
implicitly imposes on the Chairman the duty to grant a member’s re-
quest for access to such records. See Member Memorandum at 1; OGC
Memorandum at 5. The Board member and OGC disagree, however, over
whether the requested performance appraisals are subject to this statutory
right of access. The Board member argues that one of the “functions of
the Board” is “the appointment and supervision of employees,” and that
the appraisals relate to this function because they would assist the Board
in “effectively establish[ing] appropriate policies” concerning employee
supervision. Member Memorandum at 1 & n.3; see Member Reply at 1.
OGC, in contrast, argues that the Board’s “functions” are limited to
certain “substantive policy decisions” relating to defense nuclear facili-
ties, while “the Chairman alone is responsible for . . . administrative
areas” such as employee supervision. OGC Memorandum at 4–5; see
OGC Reply at 5. Moreover, OGC questions whether viewing perfor-
mance appraisals would assist in or otherwise “relate” to the formulation
of policy concerning employee supervision. See OGC Reply at 2–3.
We conclude that, in the circumstances presented here, the Board’s or-
ganic statute is best read to grant the requesting Board member a right of
access to SES performance appraisals. To start, we think that the text of
section 2286(c)(2) makes plain that one of the Board’s “functions” is to
formulate policies concerning the supervision of employees. By its terms,
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39 Op. O.L.C. 1 (2015)
this provision deems employee supervision one of the “functions of the
Board,” albeit one to be exercised by the Chairman. And it expressly
authorizes the Board to “establish” “policies” to which the Chairman is
“subject” when supervising employees. Further reinforcing the Board’s
authority in this area, section 2286(c)(2) states that the Chairman must
conduct his supervision “in accordance with paragraph (5)”—that is, the
paragraph detailing each Board member’s authority to participate in
Board decisions and obtain full access to pertinent information. Read
naturally, these provisions thus make clear that one of the Board’s func-
tions is to “establish” “policies” regarding employee supervision. As a
result, under section 2286(c)(5)(B), Board members are entitled to access
information that “relates to” that function. See BedRoc Ltd., LLC v. Unit-
ed States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statu-
tory text, and ends there as well if the text is unambiguous.”).
OGC disputes this conclusion on two principal grounds. First, OGC
observes that section 2286(c)(2) designates the Chairman as “chief execu-
tive officer of the Board,” and directs him to “exercise the functions of the
Board” with respect to administrative matters, including employee super-
vision. In OGC’s view, this language indicates that “the Chairman alone
is responsible” for all matters relating to the supervision of employees.
OGC Memorandum at 5; see id. at 1. But as just noted—and as OGC
elsewhere concedes—Congress expressly qualified the Chairman’s ad-
ministrative authority by requiring him to exercise that authority “subject
to such policies as the Board may establish,” and “in accordance with
paragraph (5).” See OGC Reply at 3 (acknowledging that “[b]y stating
that the Chairman exercises his administrative duties subject to the
Board’s policies, Congress maintained some level of Board control over
the Chairman,” including with respect to the “supervision of personnel”).
Furthermore, in a prior opinion, this Office rejected the argument that a
statute designating a board’s chairperson “‘Chief Executive Officer,’” and
directing him to “‘exercise the . . . functions of the Board,’” granted the
chairperson “complete authority over all aspects of the [Board]” except
those expressly vested in the Board as a whole. Division of Powers and
Responsibilities Between the Chairperson of the Chemical Safety and
Hazard Investigation Board and the Board as a Whole, 24 Op. O.L.C.
102, 104, 107 (2000) (“Chemical Safety Board ”) (quoting 42 U.S.C.
§ 7412(r)(6)(B)). Despite such language, we explained, “the very nature
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Disclosure of Employee Appraisals to a Member of the DNFSB
of the chairperson’s office as the executor and administrator of the
Board’s decisions and policies” rendered him “subject in the exercise of
his functions and duties as chairperson to oversight by the Board as a
whole.” Id. at 104. We indicated that this conclusion also followed from a
“basic premise governing deliberative bodies”—namely, “that the majori-
ty rules”—and from the “general understanding of what it means to be a
CEO”; in particular, that such an officer is “subordinate in legal authori-
ty” to the board “as a matter of corporate common law.” Id. at 105, 107
(internal quotation marks omitted). Here too, we think that the Chairman
is, as the statute says, “subject to” the Board’s policymaking authority
when he supervises employees. 2
Second, OGC contends that, whatever the scope of the Board’s authori-
ty, the Board’s statutory “functions” are limited to those listed in a sepa-
rate provision of its organic statute, 42 U.S.C. § 2286a(b), which states
that “[t]he Board shall perform the following functions,” and lists several
substantive responsibilities relating to inspection and review of defense
nuclear facilities. See OGC Memorandum at 3 & n.3; OGC Reply at 5.
The language of this provision, however, is not on its face definitional or
exclusive. Moreover, reading section 2286a(b) as an exhaustive list of the
Board’s functions would generate a conflict with other provisions of the
organic statute. As we have noted, section 2286(c)(2) expressly deems
“the appointment and supervision of employees” and several additional
matters to be “functions of the Board”; likewise, section 2286b authorizes
the Board to “hire such staff as it considers necessary to perform the
functions of the Board,” 42 U.S.C. § 2286b(b)(1)(A), an authorization that
presumably permits the Board to hire employees to perform administra-
tive tasks. We therefore think that section 2286a(b) is better read as an
enumeration of certain substantive Board functions for which the Board
alone is responsible, while section 2286(c)(2) lists additional administra-
2 To be sure, the Chairman possesses “a degree of managerial autonomy on which
the Board, in the proper exercise of its powers, cannot trench.” Chemical Safety Board,
24 Op. O.L.C. at 105. This autonomy extends, for instance, to “minute administrative
problems” and “some day-to-day aspects of Board affairs” that are “unrelated to the
Board’s effective execution of its statutory responsibilities.” Id. at 104–05. Because it
is clear that the Board has the authority to “establish” “policies” concerning employee
supervision, however, we need not consider the scope of the Chairman’s managerial
autonomy, or whether a Board member has a right to obtain records that relate only to
matters within the scope of that autonomy.
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39 Op. O.L.C. 1 (2015)
tive functions for which the Board shares responsibility with the Chair-
man.
Having concluded that one of the Board’s functions is to formulate
policies concerning employee supervision, we further conclude that the
requested SES performance appraisals “relat[e] to” that function. Id.§ 2286(c)(5)(B). The phrase “relate to” has a “broad common-sense
meaning,” Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 739
(1985), and denotes some “connection or relation” between two items,
Webster’s New World College Dictionary 1225 (5th ed. 2014). The re-
questing Board member has asserted that viewing SES appraisals
would assist the Board in evaluating alleged complaints about “the
execution of the performance appraisal system,” and in “establish[ing]
appropriate policies” to address those complaints. Member Memorandum
at 1 & n.3; see Member Reply at 1. OGC questions this assertion, noting
both that the Board already has access to the “performance appraisal
system”—a system containing the names, positions and “Executive
Performance Agreements” of each SES employee, but not their perfor-
mance appraisals—and that an employee committee charged with evalu-
ating employee dissatisfaction completed its work without viewing
performance appraisals. OGC Reply at 2–3. But we think it reasonable to
conclude that the Board’s oversight of employee supervision, and its
formulation of policies on the subject, would be assisted by observing
how employee supervision is carried out in practice. Indeed, by stating
that the Chairman must carry out the Board’s administrative functions
“[i]n accordance with paragraph (5)”—the provision containing the
Board members’ right of access—Congress suggested that Board mem-
bers were entitled to obtain information about the manner in which the
Chairman carries out those functions. Consequently, we conclude that the
SES performance appraisals “relate” to the Board’s function of making
policy about employee supervision, and thus that the statute’s full-access
provision, considered on its own, requires the Chairman to grant the
Board member’s request for access to those appraisals. 3
3OGC suggests that if Board members have full access to information about the
Chairman’s management of the SES appraisal system under section 2286(c)(5)(B), they
must also have “equal responsibility and authority” for making appraisal decisions, and
“one vote” on such decisions, under section 2286(c)(5)(A) and (C). OGC Reply at 3. But
we conclude only that the Board’s functions include “establish[ing]” “policy” concern-
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Disclosure of Employee Appraisals to a Member of the DNFSB
II.
We now consider whether the Privacy Act imposes any restriction on
the disclosure of SES performance appraisals to the requesting Board
member. The Privacy Act prohibits an agency or its officers from dis-
closing “any record which is contained in a system of records by any
means of communication to any person,” unless “the individual to whom
the record pertains consents,” or one of twelve exceptions applies.
5 U.S.C. § 552a(b), (i). The Act defines a “record” as “any item, collec-
tion, or grouping of information about an individual that is maintained by
an agency, including, but not limited to, his . . . employment history,” that
“contains his name . . . or other identifying particular.” Id. § 552a(a)(4).
And it defines a “system of records” as “a group of any records under the
control of any agency from which information is retrieved by the name of
the individual or by . . . other identifying particular.” Id. § 552a(a)(5).
The Board is an agency subject to the Act, Energy Research Found. v.
Def. Nuclear Facilities Safety Bd., 917 F.2d 581, 585 (D.C. Cir. 1990),
and each SES performance appraisal contains “information about an
individual[’s] . . . employment history” and may be retrieved by the
individual’s name. See OGC Memorandum at 8. Accordingly, the Pri-
vacy Act prohibits the appraisals’ disclosure unless the subject of each
appraisal consents or one of the Act’s enumerated exceptions applies.
The Privacy Act’s first exception—commonly referred to as the “need
to know” exception—authorizes an agency to disclose an otherwise pro-
tected record “to those officers and employees of the agency which main-
tains the record who have a need for the record in the performance of their
duties.” 5 U.S.C. § 552a(b)(1). The requesting Board member is plainly
an officer of the Board, the agency that “maintains” the SES appraisals.
See id. § 552a(a)(3) (defining “maintain,” for purposes of the Privacy Act,
to mean “maintain, collect, use, or disseminate”); id. § 4312(a) (requiring
each agency to “develop one or more performance appraisal systems”
and use that system to evaluate SES employees); 5 C.F.R. §§ 293.401,
ing employee supervision, and that the Board may obtain information about appraisals
insofar as it relates to that policymaking function. We do not consider whether the Board
may lawfully participate in employee supervision on an individual basis, or whether it
may obtain information that relates exclusively to such individual supervision. See supra
note 2.
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39 Op. O.L.C. 1 (2015)
293.402(b) (2014) (requiring each agency to “provide for maintenance of
performance-related records for [its] employees,” including employees in
“Senior Executive Service positions”). The first exception thus applies if
the Board member has a “need to know” the contents of the appraisals.
Consistent with the views summarized above, OGC contends that because
employee supervision is not among the Board’s functions, Board members
do not have a “need to know” that would justify their examining the
performance appraisals. See OGC Memorandum at 9. The Board member
disagrees. See Member Memorandum at 1. As we have explained above,
we believe that the Board’s official functions include, at a minimum, de-
veloping and setting policies regarding employee supervision. And for
many of the same reasons that SES performance appraisals “relate” to the
Board’s performance of this policymaking function, we conclude that the
requesting Board member has a “need” for those records in carrying out
his official duties.
This conclusion rests largely on an analysis of the statutory term
“need.” Although this term often refers to something that is indispensable
or required, it can also refer to something that is merely useful or desira-
ble. See Webster’s New World College Dictionary 977 (defining “need” as
“something useful, required or desired that is lacking”). Legal texts fre-
quently use the word in this broader sense. Cf., e.g., McCulloch v. Mary-
land, 17 U.S. (4 Wheat.) 316, 413, 415 (1819) (construing the word
“necessary” in the Necessary and Proper Clause to mean “convenient,”
“useful,” or “conducive”); Cellular Telecomms. & Internet Ass’n v. FCC,
330 F.3d 502, 504 (D.C. Cir. 2003) (deferring to agency’s interpretation
of “necessary” in telecommunications statute as referring to “a strong
connection” between means and ends). Congress, moreover, indicated that
it intended this term to be read broadly in the “need to know” exception.
The Privacy Act’s Senate committee report states that the exception was
intended to disallow disclosure “for personal, political, or commercial
motives unrelated to the agency’s administrative mission.” S. Rep. No.
93-1183, at 52 (1974) (emphasis added). It was not, the report’s authors
stressed, designed to be so demanding as to “imped[e] the day-to-day
internal operation of the agency and its offices throughout the country.”
Id. at 70; see H.R. Rep. No. 93-1416, at 12 (1974) (“It is not the Commit-
tee’s intent to impede the orderly conduct of government[.]”).
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Disclosure of Employee Appraisals to a Member of the DNFSB
Courts have generally applied the “need to know” exception in a man-
ner consistent with this broader understanding of the term “need.” The
Tenth Circuit, for instance, held in Pippinger v. Rubin that agency inves-
tigators “need[ed]” to know information that “put the investigation in
context, and might potentially have enabled them to connect the infor-
mation . . . with other data already known to them.” 129 F.3d 519, 530
(10th Cir. 1997); see id. (“To hold otherwise would slice the bread of the
‘need to know’ exception far thinner than we believe Congress intend-
ed.”). Similarly, the D.C. Circuit held in Bigelow v. Department of De-
fense that once “doubts . . . had been raised in [a military commander’s]
mind” about his subordinate’s loyalty, the commander had a need to know
information that would enable him to “make sure [the subordinate] was
worthy of trust.” 217 F.3d 875, 877 (D.C. Cir. 2000). Other courts have
likewise concluded that agency officials had a “need” for information
whose exact value was uncertain or only incremental. See, e.g., Britt v.
Naval Investigative Servs., 886 F.2d 544, 549 n.2 (3d Cir. 1989) (supervi-
sor had a need to know information on the basis of which he “might need
to reevaluate” his subordinate’s responsibilities); Shayesteh v. Raty, No.
2:05-CV-85 TC, 2007 WL 2317435, at *4 (D. Utah 2007) (prosecutors
had a need to know information that was “relevant to determining whether
[the defendant’s] funds might be subject to forfeiture”); Viotti v. U.S. Air
Force, 902 F. Supp. 1331, 1337 (D. Colo. 1995) (staff members had a
need to know the reason their supervisor had been removed). In each case,
the court permitted disclosure of records that held significant and articu-
lable, but not indispensable, value to an agency official. 4
4 Although it is true, as OGC contends, that in the employment context courts have
frequently found the requisite “need to know” based on an employer’s interest in taking
action affecting a particular employee, see OGC Memorandum at 8–9, they have also
deemed sufficient other needs relating to the supervision of agency employees or contrac-
tors. See, e.g., Reuber v. United States, 829 F.2d 133, 138, 139–40 (D.C. Cir. 1987)
(agency officials had a need to know whether a contractor took proper disciplinary actions
in order to confirm the contractor’s “awareness of the delicate circumstances and its
commitment to better in-house discipline”); Schmidt v. U.S. Dep’t of Veterans Affairs,
218 F.R.D. 619, 631–32 (E.D. Wis. 2003) (agency employees had a need to know em-
ployees’ Social Security numbers in order to implement an emergency-record system);
Ciralsky v. CIA, 689 F. Supp. 2d 141, 155 (D.D.C. 2010) (investigative panel had a need
to view a Jewish employee’s personnel file to aid its investigation into anti-Semitism at
the agency); Viotti, 902 F. Supp. at 1337. There is thus no requirement that information
disclosed under the “need to know” exception be intended to inform a personnel action
concerning the employee whose information was disclosed.
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39 Op. O.L.C. 1 (2015)
We think that the requesting Board member has a comparable need for
the SES performance appraisals. As we have discussed, the member seeks
the appraisals in order to enable him to assess alleged complaints about
the performance appraisal system and to develop policies that would
address those complaints. Like the requesters in Pippinger and Bigelow,
the member has articulated a specific determination that he believes the
records would enable him to make. That determination is one for which
the member bears responsibility, in his capacity as one of five coequal
leaders of the agency charged with setting policies concerning the super-
vision of employees. See Bigelow, 217 F.3d at 877 (considering whether
“the official examined the record in connection with the performance of
duties assigned to him”). He has reasonably asserted that it would be
difficult to make the determination in the absence of the requested rec-
ords. See Pippinger, 129 F.3d at 530 (noting “inherent difficulty” of con-
ducting investigation without the information at issue). That determina-
tion is “generally related to the purpose for which the record[s] [are]
maintained,” Privacy Act Guidelines, 40 Fed. Reg. 28,949, 28,954 (July 1,
1975), as it concerns whether the appraisals are serving their designated
purposes fairly and effectively. And there is no indication that the mem-
ber’s stated motives in seeking the record are pretextual. Cf. Boyd v.
Snow, 335 F. Supp. 2d 28, 38–39 (D.D.C. 2004) (denying summary judg-
ment to an agency where it was “far from clear” that the agency had
disclosed a record “for the reason [it] offered” during litigation). In these
circumstances, it would place an unwarranted burden on the member’s
exercise of his policymaking role if he could not have access to the infor-
mation he seeks. We therefore conclude that the “need to know” excep-
tion permits the records’ disclosure. 5
III.
For the foregoing reasons, we conclude that the Board’s organic statute
requires, and the Privacy Act allows, the Chairman to grant the requesting
Board member access to SES performance appraisals. The Chairman
therefore must grant the member’s request for access. See Relationship
5Because we find the Privacy Act’s first exception applicable, we need not consider
whether any of its other exceptions applies, or what the outcome would be if the Privacy
Act barred disclosure of records to which the Board’s organic statute gave the requesting
Board member a statutory right of access.
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Disclosure of Employee Appraisals to a Member of the DNFSB
Between Section 203(d) of the Patriot Act and the Mandatory Disclosure
Provision of Section 905(a) of the Patriot Act, 26 Op. O.L.C. 107, 112–13
(2002) (concluding that where one statute “mandates disclosure” of cer-
tain information, and another statute “sets forth a permissive grant of
authority” to disclose that information, the result is that information
subject to both statutes “must be disclosed”). We note that, upon obtain-
ing these records, the Board member will be required to adhere to any
applicable requirements concerning the records’ subsequent use or disclo-
sure, including restrictions found in the Privacy Act and any other appli-
cable laws or regulations.
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
11