B-197851.OM, MAY 12, 1980

B-197851.OM: May 12, 1980

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DIRECTOR OF PERSONNEL: THIS RESPONDS TO YOUR REQUEST FOR OUR OPINION ON WHETHER THERE IS A LEGAL BASIS FOR PLEDGES OF CONFIDENTIALITY TO PROTECT COUNSELING RECORDS AND EXIT INTERVIEW FORMS MAINTAINED BY THE COUNSELING AND CAREER DEVELOPMENT BRANCH OF YOUR OFFICE. ARE AS FOLLOWS: 1. THE CONFIDENTIALITY OF THESE RECORDS IS SPECIFICALLY PROTECTED BY STATUTE AND STATUTORY REGULATIONS WHICH LIMIT DISCLOSURE TO SPECIFIED CIRCUMSTANCES. 2. WHILE THESE RECORDS ARE NOT SPECIFICALLY PROTECTED BY STATUTE. IS LEGALLY SUPPORTABLE. 3. WHICH IS UNSIGNED. WE DO NOT BELIEVE THAT A PLEDGE OF CONFIDENTIALITY IS LEGALLY SUPPORTABLE FOR THIS FORM. A MORE DETAILED EXPLANATION OF OUR VIEWS AS TO EACH CATEGORY OF MATERIALS IS SET FORTH BELOW.

B-197851.OM, MAY 12, 1980

CONFIDENTIALITY OF COUNSELING RECORDS (B-197851-O.M.)

DIRECTOR OF PERSONNEL:

THIS RESPONDS TO YOUR REQUEST FOR OUR OPINION ON WHETHER THERE IS A LEGAL BASIS FOR PLEDGES OF CONFIDENTIALITY TO PROTECT COUNSELING RECORDS AND EXIT INTERVIEW FORMS MAINTAINED BY THE COUNSELING AND CAREER DEVELOPMENT BRANCH OF YOUR OFFICE.

THE MATERIALS INVOLVED FALL INTO THREE CATEGORIES. THESE CATEGORIES, AND OUR BASIC CONCLUSIONS AS TO THE VIABILITY OF A CONFIDENTIALITY PLEDGE FOR EACH CATEGORY, ARE AS FOLLOWS:

1. CLIENT RECORDS RELATING TO COUNSELING FOR ALCOHOL AND DRUG ABUSE PROBLEMS. AS YOU KNOW, THE CONFIDENTIALITY OF THESE RECORDS IS SPECIFICALLY PROTECTED BY STATUTE AND STATUTORY REGULATIONS WHICH LIMIT DISCLOSURE TO SPECIFIED CIRCUMSTANCES.

2. CLIENT RECORDS RELATING TO THE "BROAD" EMPLOYEE COUNSELING SERVICES PROGRAM PROVIDED FOR IN FEDERAL MANAGEMENT LETTER 792-9. WHILE THESE RECORDS ARE NOT SPECIFICALLY PROTECTED BY STATUTE, WE BELIEVE THAT A PLEDGE OF CONFIDENTIALITY FOR THEM, ALONG THE SAME LINES AS THE ALCOHOL AND DRUG ABUSE RECORDS, IS LEGALLY SUPPORTABLE.

3. THE EMPLOYEE EXIT QUESTIONNAIRE FORM COMPLETED BY PERSONS LEAVING GAO. THIS FORM, WHICH IS UNSIGNED, INCLUDES BACKGROUND INFORMATION ABOUT THE INDIVIDUAL AND HIS/HER REASONS FOR LEAVING GAO. WE DO NOT BELIEVE THAT A PLEDGE OF CONFIDENTIALITY IS LEGALLY SUPPORTABLE FOR THIS FORM.

A MORE DETAILED EXPLANATION OF OUR VIEWS AS TO EACH CATEGORY OF MATERIALS IS SET FORTH BELOW.

ALCOHOL AND DRUG ABUSE PROGRAM COUNSELING RECORDS

SECTION 201 OF THE COMPREHENSIVE ALCOHOL ABUSE AND ALCOHOLISM PREVENTION, TREATMENT, AND REHABILITATION ACT OF 1970, 42 U.S.C. SEC. 4561, AUTHORIZES ALCOHOL ABUSE PROGRAMS FOR FEDERAL EMPLOYEES, AS FOLLOWS:

"(A) THE CIVIL SERVICE COMMISSION SHALL BE RESPONSIBLE FOR DEVELOPING AND MAINTAINING, IN COOPERATION WITH THE SECRETARY (OF HEALTH, EDUCATION, AND WELFARE) AND WITH OTHER FEDERAL AGENCIES AND DEPARTMENTS, APPROPRIATE PREVENTION, TREATMENT, AND REHABILITATION PROGRAMS AND SERVICES FOR ALCOHOL ABUSE AND ALCOHOLISM AMONG FEDERAL CIVILIAN EMPLOYEES, CONSISTENT WITH THE PURPOSES OF THIS ACT. SUCH POLICIES AND SERVICES SHALL MAKE OPTIMAL USE OF EXISTING GOVERNMENTAL FACILITIES, SERVICES, AND SKILLS."

SECTION 413 OF THE DRUG ABUSE OFFICE AND TREATMENT ACT OF 1972, 21 U.S.C. SEC. 1180, AUTHORIZES DRUG ABUSE PROGRAMS FOR FEDERAL EMPLOYEES. BOTH THE ALCOHOL AND DRUG ABUSE PROGRAMS ARE COVERED BY SUBCHAPTER 792-5 OF THE FEDERAL PERSONNEL MANUAL.

BOTH STATUTES PROTECT THE CONFIDENTIALITY OF PROGRAM RECORDS IN SUBSTANTIVELY IDENTICAL TERMS. SEE SECTION 333 OF THE ALCOHOL ABUSE ACT, AS AMENDED, 42 U.S.C. SEC. 4582, AND SECTION 408 OF THE DRUG ABUSE ACT, AS AMENDED, 21 U.S.C. SEC. 1175. FOR EXAMPLE, SECTION 333(A) OF THE ALCOHOL ABUSE ACT PROVIDES:

"RECORDS OF THE IDENTITY, DIAGNOSIS, PROGNOSIS, OR TREATMENT OF ANY PATIENT WHICH ARE MAINTAINED IN CONNECTION WITH THE PERFORMANCE OF ANY PROGRAM OR ACTIVITY RELATING TO ALCOHOLISM OR ALCOHOL ABUSE EDUCATION, TRAINING, TREATMENT, REHABILITATION, OR RESEARCH, WHICH IS CONDUCTED, REGULATED, OR DIRECTLY OR INDIRECTLY ASSISTED BY ANY DEPARTMENT OR AGENCY OF THE UNITED STATES SHALL, EXCEPT AS PROVIDED IN SUBSECTION (E) OF THIS SECTION, BE CONFIDENTIAL AND BE DISCLOSED ONLY FOR THE PURPOSES AND UNDER THE CIRCUMSTANCES EXPRESSLY AUTHORIZED UNDER SUBSECTION (B) OF THIS SECTION."

FOR PURPOSES HERE RELEVANT, (FN1) DISCLOSURE OF SUBSECTION (A) RECORDS WITHOUT THE PATIENT'S (FN2) CONSENT IS LIMITED TO THE FOLLOWING CIRCUMSTANCES SPECIFIED IN SUBSECTION (B)(2):

"(A) TO MEDICAL PERSONNEL TO THE EXTENT NECESSARY TO MEET A BONA FIDE MEDICAL EMERGENCY.

"(B) TO QUALIFIED PERSONNEL FOR THE PURPOSE OF CONDUCTING SCIENTIFIC RESEARCH, MANAGEMENT AUDITS, FINANCIAL AUDITS, OR PROGRAM EVALUATION, BUT SUCH PERSONNEL MAY NOT IDENTIFY, DIRECTLY OR INDIRECTLY, ANY INDIVIDUAL PATIENT IN ANY REPORT OF SUCH RESEARCH, AUDIT, OR EVALUATION, OR OTHERWISE DISCLOSE PATIENT IDENTITIES IN ANY MANNER.

"(C) IF AUTHORIZED BY AN APPROPRIATE ORDER OF A COURT OF COMPETENT JURISDICTION GRANTED AFTER APPLICATION SHOWING GOOD CAUSE THEREFOR. ASSESSING GOOD CAUSE THE COURT SHALL WEIGH THE PUBLIC INTEREST AND THE NEED FOR DISCLOSURE AGAINST THE INJURY TO THE PATIENT, TO THE PHYSICIAN PATIENT RELATIONSHIP, AND TO THE TREATMENT SERVICES. UPON THE GRANTING OF SUCH ORDER, THE COURT, IN DETERMINING THE EXTENT TO WHICH ANY DISCLOSURE OF ALL OR ANY PART OF ANY RECORD IS NECESSARY, SHALL IMPOSE APPROPRIATE SAFEGUARDS AGAINST UNAUTHORIZED DISCLOSURE."

EACH STATUTE PROVIDES FOR THE ISSUANCE OF REGULATIONS TO EFFECTUATE THE DISCLOSURE RESTRICTIONS. REGULATIONS GOVERNING BOTH PROGRAMS, PRESCRIBED JOINTLY BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE AND THE SPECIAL ACTION OFFICE FOR DRUG ABUSE, APPEAR AT 42 C.F.R. PART 2, SUBCHAPTER A. THESE REGULATIONS GIVE BROAD APPLICATION TO THE STATUTORY CONFIDENTIALITY PROTECTIONS. FOR EXAMPLE, THE REGULATIONS DEFINE "PATIENT" AS ANY INDIVIDUAL, WHETHER REFERRED AS A PATIENT, CLIENT, OR OTHERWISE, WHO HAS APPLIED FOR OR BEEN GIVEN TREATMENT FOR DRUG OR ALCOHOL ABUSE (42 C.F.R. 52.11(1)), AND THEY DEFINE "RECORDS" AS INCLUDING -

"*** ANY INFORMATION, WHETHER RECORDED OR NOT, RELATING TO A PATIENT, RECEIVED OR ACQUIRED IN CONNECTION WITH THE PERFORMANCE OF ANY ALCOHOL ABUSE OR DRUG ABUSE PREVENTION FUNCTION, WHETHER SUCH RECEIPT OR ACQUISITION IS BY A PROGRAM, A QUALIFIED SERVICE ORGANIZATION, OR ANY OTHER PERSON." 42 C.F.R. SEC. 2.11(C).

THE REGULATIONS ALSO MAKE CLEAR THAT THE COURT ORDER AUTHORIZATION FOR DISCLOSURE REQUIRES THAT A COURT OF COMPETENT JURISDICTION ACTUALLY CONSIDER AND DETERMINE THE DISCLOSURE ISSUE. DISCLOSURE CANNOT BE BASED MERELY ON A REQUEST FOR INFORMATION BY ONE OF THE LITIGANTS OR SERVICE OF A SUBPOENA IN CONNECTION WITH LITIGATION. 42 C.F.R. SEC. 2.61.

WHILE THE ALCOHOL ABUSE AND DRUG ABUSE ACTS DO NOT DEFINE THE AGENCIES, DEPARTMENTS AND CIVILIAN EMPLOYEES TO WHICH THE FEDERAL PROGRAMS APPLY, IT SEEMS CLEAR THAT BROAD COVERAGE WAS INTENDED. THERE IS CERTAINLY NO BASIS TO EXCLUDE GAO AND ITS EMPLOYEES FROM THESE ACTS AND, IN FACT, WE UNDERSTAND THAT THE GAO PROGRAM IS VIEWED AS COMING WITHIN THE TWO ACTS.

IN SUM, WE BELIEVE THAT THE STATUTORY AND REGULATORY REQUIREMENTS DISCUSSED ABOVE ARE FULLY APPLICABLE TO GAO COUNSELING RECORDS RELATING TO ALCOHOL AND DRUG ABUSE PROBLEMS. THEREFORE, A PLEDGE OF CONFIDENTIALITY FOR SUCH RECORDS CONSISTENT WITH THOSE REQUIREMENTS (AND RECOGNIZING THE LIMITED AUTHORIZATIONS FOR DISCLOSURE) IS ENTIRELY JUSTIFIED.

CLIENT RECORDS RELATING TO THE BROAD EMPLOYEE COUNSELING PROGRAM

FEDERAL PERSONNEL MANUAL (FPM) LETTER 792-9 (MAY 23, 1979) AUTHORIZES THE ESTABLISHMENT BY FEDERAL AGENCIES OF A "BROAD" EMPLOYEE COUNSELING SERVICES PROGRAM AS AN ALTERNATIVE TO PROGRAMS COVERING ONLY ALCOHOL AND DRUG ABUSE. AS STATED IN SECTION II OF RPM LETTER 792-9, THE BROAD PROGRAM COVERS A RANGE OF MEDICAL-BEHAVIORAL PROBLEMS INCLUDING, IN ADDITION TO ALCOHOL AND DRUG ABUSE, PERSONAL/EMOTIONAL, FINANCIAL, MARITAL, FAMILY, AND LEGAL PROBLEMS. GAO HAS ADOPTED THE BROAD PROGRAM, AND THE QUESTION HERE CONCERNS THE STATUS OF CLIENT RECORDS DEVELOPED THROUGH THIS PROGRAM APART FROM RECORDS RELATING TO ALCOHOL AND DRUG PROBLEMS.

UNLIKE PROGRAMS LIMITED TO ALCOHOL AND DRUG ABUSE, THE BROAD COUNSELING PROGRAM IS NOT GOVERNED BY SPECIFIC STATUTORY AUTHORITY, (FN3) AND CLIENT RECORDS DEVELOPED THEREUNDER ARE NOT SUBJECT TO EXPRESS STATUTORY CONFIDENTIALITY PROTECTIONS. MOREOVER, WE ARE NOT AWARE OF ANY GENERALLY RECOGNIZED PRIVILEGE FROM DISCOVERY WHICH WOULD APPLY TO THESE RECORDS. (FN4) HOWEVER, THERE DOES APPEAR TO BE ANOTHER LEGAL ARGUMENT TO SUPPORT A PRIVILEGE (AND THEREFORE A PLEDGE OF CONFIDENTIALITY) FOR CLIENT RECORDS UNDER THE BROAD COUNSELING PROGRAM.

THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552, AND THE PRIVACY ACT, 5 U.S.C. SEC. 552A, WHILE NOT APPLICABLE TO GAO AS A MATTER OF LAW, ARE RELEVANT IN A GENERAL SENSE. SUBSECTION (B)(6) OF THE FOIA, 5 U.S.C. SEC. 552(B)(6), CONTAINS AN EXEMPTION FROM MANDATORY DISCLOSURE UNDER THAT ACT FOR -

"PERSONNEL AND MEDICAL FILES AND SIMILAR FILES THE DISCLOSURE OF WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY ***."

SUBSECTION (B) OF THE PRIVACY ACT, 5 U.S.C. SEC. 552AB), GENERALLY PROHIBITS THE DISCLOSURE OF INFORMATION ABOUT AN INDIVIDUAL FROM A SYSTEM OF AGENCY RECORDS RETRIEVABLE BY INDIVIDUAL IDENTIFIERS UNLESS THE INDIVIDUAL CONSENTS TO DISCLOSURE OR UNLESS ONE OF THE CONDITIONS OF UNILATERAL DISCLOSURE SPECIFIED IN SUBSECTION (B) IS MET. TWO OF THE CONDITIONS SO SPECIFIED IN SUBSECTION (B) MAY BE RELEVANT HERE. THESE ARE DISCLOSURE "(2) REQUIRED UNDER SECTION 552 OF THIS TITLE (THE FOIA)"; AND DISCLOSURE "(11) PURSUANT TO THE ORDER OF A COURT OF COMPETENT JURISDICTION."

THE NET EFFECT OF THE FOIA'S EXEMPTION (B)(6), QUOTED PREVIOUSLY, AND THE PRIVACY ACT'S CONDITION OF DISCLOSURE (B)(2) IS THAT IF AN AGENCY COULD DENY AN FOIA REQUEST FOR A PERSONNEL, MEDICAL OR SIMILAR RECORD ON THE BASIS THAT DISCLOSURE WOULD CONSTITUTE "A CLEARLY UNWARRANTED INVASION OF PRIVACY," IT IS PROHIBITED BY THE PRIVACY ACT FROM DISCLOSING THAT RECORD UNLESS ONE OF THE PRIVACY ACT'S CONDITIONS OF DISCLOSURE IS MET. PROVIDENCE JOURNAL CO. V. FEDERAL BUREAU OF INVESTIGATION, 460 F. SUPP. 762, 767-68 (D.F.I. 1978), REV'D ON OTHER GROUNDS, 602 F.2D 1018 (1ST CIR. 1979); CF., PLAIN DEALER PUB. CO. V. U. S. DEPARTMENT OF LABOR, 471 F. SUPP. 1023, 1030 (D.D.C. 1979). ANOTHER CONSEQUENCE IS THAT THE PRIVACY ACT PROHIBITION AGAINST DISCLOSURE CAN BE USED AS A DEFENSE TO DISCOVERY OR COMPULSORY PROCESS IN LITIGATION, UNLESS AND UNTIL A JUDGE ORDERS DISCLOSURE PURSUANT TO 5 U.S.C. SEC. 552AB)(11). SEE STILES V. ATLANTA GAS LIGHT CO., 453 F.SUPP. 798 (N. D. CA. 1978) (FN5).

BASED ON THE ABOVE, AN EXECUTIVE AGENCY SUBJECT TO THE FOIA COULD ASSERT A PRIVACY ACT PRIVILEGE FROM DISCOVERY IN THE CASE OF RECORDS THAT FALL WITHIN THE FOIA'S EXEMPTION (B)(6) - "PERSONNEL, MEDICAL AND SIMILAR FILES THE DISCLOSURE OF WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PRIVACY." OF COURSE, DISCLOSURE COULD BE ORDERED BY A COURT; BUT EVEN COUNSELING RECORDS RELATING TO DRUG AND ALCOHOL PROBLEMS ARE SUBJECT TO DISCLOSURE BY COURT ORDER. CAN GAO ASSERT A PRIVILEGE ALONG THESE LINES FOR ITS BROAD COUNSELING PROGRAM RECORDS AND, THEREFORE, GIVE A PLEDGE OF CONFIDENTIALITY TO THIS EFFECT? TWO ISSUES ARE RAISED HERE: (1) WHETHER BROAD COUNSELING RECORDS FALL WITHIN FOIA EXEMPTION (B)(6) AND, IF SO, (2) WHETHER GAO CAN ASSERT A PRIVILEGE BASED ON THIS APPROACH.

ARE BROAD COUNSELING PROGRAM RECORDS SUBJECT TO FOIA EXEMPTION (B)(6)?

IT IS CLEAR THAT BROAD PROGRAM COUNSELING RECORDS WOULD CONSTITUTE "PERSONNEL, MEDICAL *** (OR) SIMILAR FILES," THEREBY SATISFYING THE FIRST TEST UNDER EXEMPTION (B)(6). THESE RECORDS RELATE TO GAO EMPLOYEES, ARE MAINTAINED BY A COMPONENT OF OUR PERSONNEL OFFICE, AND ARE GENERATED AS PART OF A GAO PERSONNEL PROGRAM. THEY MAY EVEN DEAL WITH MEDICAL OR RELATED MATTERS TO SOME EXTENT.

APPLICATION OF THE SECOND TEST - WHETHER DISCLOSURE "WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PRIVACY" - CALLS FOR A BALANCING TEST, IN WHICH THE COURTS WILL "TILT THE BALANCE IN FAVOR OF DISCLOSURE." SEE E.G., RURAL HOUSING ALLIANCE V. U. S. DEPARTMENT OF AGRICULTURE, 498 F.2D 73, 77 (D.C. CIR. 1974). THE FACTORS TO BE BALANCED WERE EXPLAINED IN RURAL HOUSING ALLIANCE AS FOLLOWS:

"*** IN BALANCING INTERESTS THE COURT SHOULD FIRST DETERMINE IF DISCLOSURE WOULD CONSTITUTE AN INVASION OF PRIVACY, AND HOW SEVERE AN INVASION. SECOND, THE COURT SHOULD WEIGH THE PUBLIC INTEREST PURPOSE OF THOSE SEEKING DISCLOSURE, AND WHETHER OTHER SOURCES OF INFORMATION MIGHT SUFFICE. SUCH BALANCING IS UNIQUE FOR EXEMPTION 6; NORMALLY NO INQUIRY INTO THE USE OF INFORMATION IS MADE, AND THE INFORMATION IS MADE AVAILABLE TO ANY PERSON." ID.

THE BALANCE TO BE STRUCK IN THE CASE OF A DEMAND FOR BROAD PROGRAM COUNSELING RECORDS WOULD, OF COURSE, DEPEND IN PART ON THE "PUBLIC INTEREST PURPOSE" ASSERTED FOR DISCLOSURE. SINCE THIS IS AN UNKNOWN FACTOR, WE CANNOT OFFER DEFINITIVE ADVICE ON THE OUTCOME IN ANY PARTICULAR BALANCING EXERCISE. HOWEVER, JUDGING FROM THE EXISTING CASE LAW, IT IS LIKELY THAT A STRONG SHOWING IN FAVOR OF DISCLOSURE WOULD BE NECESSARY TO OVERCOME THE SUBSTANTIAL PRIVACY INTEREST AT STAKE WITH RESPECT TO THE COUNSELING RECORDS. IN THIS REGARD, SEVERAL CASES HAVE RECOGNIZED THAT INFORMATION OF THE TYPE WE WOULD EXPECT TO BE FOUND IN BROAD PROGRAM COUNSELING RECORDS IS ENTITLED TO A HIGH DEGREE OF PROTECTION.

RURAL HOUSING ALLIANCE V. U. S. DEPARTMENT OF AGRICULTURE, CITED ABOVE, DEALT WITH AN FOIA REQUEST FOR DISCLOSURE OF AN AGRICULTURE DEPARTMENT REPORT ON ITS INVESTIGATION OF HOUSING DISCRIMINATION. THE COURT OF APPEALS DESCRIBED THE REPORT AS CONTAINING "DETAILED AND INTIMATE CASE HISTORIES OF SPECIFIED, NAMED PERSONS," 498 F.2D AT 75, AND ELABORATED ON ITS CONTENT AS FOLLOWS:

"*** THE MATERIALS HERE CONTAIN INFORMATION REGARDING MARITAL STATUS, LEGITIMACY OF CHILDREN, IDENTITY OF FATHERS OF CHILDREN, MEDICAL CONDITION, WELFARE PAYMENTS, ALCOHOLIC CONSUMPTION, FAMILY FIGHTS, REPUTATION, AND SO ON ***." ID. AT 77. ALTHOUGH THE CASE WAS REMANDED FOR SPECIFIC APPLICATION OF THE BALANCING TEST, THE COURT OF APPEALS CONCLUDED THAT THE REPORT MET THE THRESHOLD REQUIREMENTS FOR APPLICATION OF FOIA EXEMPTION 6, I.E., DISCLOSURE WOULD CONSTITUTE A SEVERE INVASION OF PRIVACY. THIS WAS SO EVEN THOUGH THE NAMES OF THE INDIVIDUALS WERE TO BE DELETED SINCE THEIR IDENTITIES COULD BE ASCERTAINED BY SOME PERSONS INDIRECTLY THROUGH RELEASE OF THE UNDERLYING FACTS. ID. AT 76. FINALLY THE COURT NOTED THAT WHETHER THE INDIVIDUALS EXPECTED CONFIDENTIAL TREATMENT MIGHT BE A RELEVANT CONSIDERATION IN APPLYING THE BALANCING TEST. ID. AT 78, FN 21.

IN METROPOLITAN LIFE INSURANCE CO. V. USERV, 426 F.SUPP. 150 (D.D.C. 1976), THE COURT ENJOINED RELEASE OF CERTAIN INFORMATION RELATING TO METROPOLITAN'S AFFIRMATIVE ACTION PLANS (AAPS) LARGELY ON THE BASIS OF THE FOIA BALANCING TEST. THE COURT'S OPINION STATES IN PART:

"THE DISCLOSURE OF INFORMATION CONCERNING AN EMPLOYEE'S PROMOTION PROSPECTS, LACK OF PROMOTION PROSPECTS, JOB PERFORMANCE EVALUATIONS, AND PERSONAL PREFERENCES AND GOALS, AND THE REASONS FOR AN EMPLOYEE'S TERMINATION CONTAINED IN THESE PORTIONS OF THE AAPS WOULD CONSTITUTE A SUBSTANTIAL INVASION OF THE COMPANIES' EMPLOYEES' PERSONAL PRIVACY. THE DISCLOSURE OF NEGATIVE COMMENTS OR INFORMATION ABOUT AN EMPLOYEE ON THESE SUBJECTS COULD BE QUITE EMBARRASSING AND PAINFUL TO THE EMPLOYEE. WHILE MANY OF THE COMMENTS AND MUCH OF THE INFORMATION ARE FAVORABLE OR NEUTRAL, THE (B)(6) EXEMPTION WAS DESIGNED TO PROTECT INDIVIDUALS FROM A WIDE RANGE OF EMBARRASSING DISCLOSURES, NOT JUST THE DISCLOSURE OF DEROGATORY INFORMATION. INDEED, THE DISCLOSURE OF FAVORABLE INFORMATION COULD PLACE THE EMPLOYEE IN A VERY EMBARRASSING POSITION WITH OTHER, POSSIBLY JEALOUS, EMPLOYEES." 426 F.SUPP. AT 168 (FOOTNOTES OMITTED).

THE COURT WENT ON TO CONCLUDE THAT THIS SUBSTANTIAL INVASION OF PRIVACY OUTWEIGHED THE ASSERTED INTEREST IN PUBLIC DISCLOSURE - TO FURTHER EQUAL EMPLOYMENT OPPORTUNITY AND ELIMINATE DISCRIMINATION. ID. AT 169. THE COURT ALSO OBSERVED THAT EVEN WITH NAMES AND IDENTIFYING NUMBERS DELETED, IDENTIFICATION OF PARTICULAR INDIVIDUALS WAS POSSIBLE AND WOULD RESULT IN "A CLEARLY UNWARRANTED INVASION OF PRIVACY." ID. AT 167.

IN PLAIN DEALER PUBLISHING CO. V. U. S. DEPARTMENT OF LABOR, 471 F.SUPP. 1023 (D.D.C.1970), THE COURT HELD THAT FOIA EXEMPTION (B)(6) JUSTIFIED THE WITHHOLDING OF CERTAIN INFORMATION FROM THE FILES OF FEDERAL DISABILITY CLAIMANTS EMPLOYED BY THE OFFICE OF WORKERS' COMPENSATION PROGRAMS (OWCP):

"CONTRARY TO PLAINTIFFS' SUGGESTION THAT DISCLOSURE OF THE REQUESTED FILES WOULD INVOLVE EITHER NO INVASION OF PRIVACY OR ONLY AN INCIDENTAL ONE, THE COURT CONCLUDES THAT DISCLOSURE WOULD CREATE A SERIOUS INVASION OF PRIVACY OF OWCP-EMPLOYED CLAIMANTS. DISCLOSURE WOULD REVEAL THE INTIMATE DETAILS OF A CLAIMANT'S WORK-RELATED INJURY OR DISABILITY. WOULD ALSO REVEAL A CLAIMANT'S MEDICAL HISTORY, INCLUDING ANY RELATED INJURIES OR DISABILITIES, AND A CLINICAL PSYCHOLOGIST'S EVALUATION OF A CLAIMANT. IT WOULD FURTHER REVEAL IMPORTANT FACTS CONCERNING A CLAIMANT'S EMPLOYMENT HISTORY, INCLUDING HIS EARNING CAPACITY AND POTENTIAL, HIS VOCATIONAL OR EDUCATIONAL TRAINING, AND CANDID EVALUATIONS BY HIS SUPERVISOR.

"THESE REVELATIONS, IN VIOLATION OF A CLAIMANT'S EXPECTATION OF CONFIDENTIALITY IN THESE FILES *** WOULD LEAD TO EMBARRASSMENT AND PRACTICAL DIFFICULTIES, SUCH AS LOSS OF FRIENDS OR OTHER EMPLOYMENT OPPORTUNITIES. *** IT IS PLAIN THAT AN INDIVIDUAL OF NORMAL SENSIBILITIES WILL BE EMBARRASSED BY PUBLIC DISCLOSURE OF THESE CONFIDENTIAL INTIMATE DETAILS, PARTICULARLY BECAUSE IT IS UNLIKELY THAT THE FULL NATURE AND EXTENT OF HIS INJURY OR DISABILITY PREVIOUSLY WOULD HAVE BEEN KNOWN TO THE PUBLIC. ***" 471 F. SUPP. AT 1028.

WE BELIEVE THAT THE ABOVE CASES SUPPORT AT LEAST A STRONG PRESUMPTION IN FAVOR OF EXEMPTION (B)(6) COVERAGE FOR BROAD PROGRAM COUNSELING RECORDS, AND A SUFFICIENT BASIS FOR A GOOD FAITH PLEDGE OF CONFIDENTIALITY TO THE SAME EXTENT AS THE STATUTORY PROTECTIONS AFFORDED DRUG AND ALCOHOL ABUSE RECORDS.

CAN GAO ASSERT A PRIVILEGE BASED ON FOIA EXEMPTION (B)(6) AND THE PRIVACY ACT?

GAO HAS CONSISTENTLY TAKEN THE POSITION THAT, AS A LEGISLATIVE BRANCH AGENCY, IT IS NOT SUBJECT TO EITHER THE FOIA OR THE PRIVACY ACT. THEREFORE, IT COULD BE ARGUED THAT EVEN IF AN EXECUTIVE BRANCH AGENCY COULD PROTECT ITS BROAD PROGRAM COUNSELING RECORDS FROM DISCLOSURE BASED ON THE FOIA AND PRIVACY ACT, THESE STATUTES DO NOT CREATE A GENERAL EVIDENTIARY PRIVILEGE AVAILABLE TO AGENCIES WHICH ARE NOT TECHNICALLY SUBJECT TO THE ACTS. CF., KERR V. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, 511 F.2D 192, 197 (9TH CIR. 1975), AFF'D ON OTHER GROUNDS, 420 U.S. 394 (1976). HOWEVER, WE DO NOT BELIEVE THAT SUCH AN ARGUMENT WOULD PREVAIL. IN OUR VIEW, THE COURTS RECOGNIZE THAT THE PURPOSES UNDERLYING A PRIVILEGE BASED ON FOIA EXEMPTION (B)(6) AND THE PRIVACY ACT APPLY JUST AS MUCH TO GAO EMPLOYEES AS TO EXECUTIVE AGENCY EMPLOYEES, AND THAT THE COURT WOULD FASHION A PRIVILEGE FOR GAO BROAD COUNSELING PROGRAM RECORDS ON THIS BASIS. IN FACT, THE SUPREME COURT HAS HINTED THAT FOIA EXEMPTION (B)(6) MAY BE VIEWED AS REFLECTING GENERAL CONCEPTS OF PRIVILEGE FROM DISCOVERY. FEDERAL OPEN MARKET COMMITTEE V. MERRILL, U.S. , 47 U.S.L.W. 4892, 4895-96 AND FN. 16 (JUNE 28, 1979).

WHILE GAO IS NOT LEGALLY SUBJECT TO THE FOIA, REGULATIONS PROMULGATED BY OUR OFFICE DEALING WITH THE PUBLIC AVAILABILITY OF GAO RECORDS ENDORSE THE CONCERN FOR PROTECTION OF INFORMATION SUBJECT TO FOIA EXEMPTION (B)(6). THUS, THE GAO REGULATIONS CONTAIN AN EXEMPTION FROM DISCLOSURE THAT PARALLELS FOIA EXEMPTION (B)(6), AS FOLLOWS:

"(A) THE PUBLIC DISCLOSURE OF GAO RECORDS CONTEMPLATED BY THIS PART MAY NOT APPLY TO RECORDS, OR PARTS THEREOF, WITHIN ANY OF THE CATEGORIES LISTED BELOW. THESE EXEMPTIONS MAY BE WAIVED BY THE DIRECTOR, OP.

"(6) PERSONNEL AND MEDICAL FILES AND SIMILAR FILES THE DISCLOSURE OF WHICH COULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY. THIS EXEMPTION EXCLUDES FROM DISCLOSURE ALL PERSONNEL AND MEDICAL FILES, AND ALL PRIVATE OR PERSONAL INFORMATION CONTAINED IN OTHER FILES WHICH, IF DISCLOSED TO THE PUBLIC, WOULD AMOUNT TO A CLEARLY UNWARRANTED INVASION OF THE PRIVACY OF ANY PERSON. ***" 4 C.F.R. SEC. 81.5, 44 FED. REG. 47755 (AUGUST 15, 1979).

NONE OF THE REASONS WHICH UNDERLY GAO'S EXEMPTIONS FROM THE FOIA AND PRIVACY ACT IMPLY IN ANY WAY THAT GAO EMPLOYEES SHOULD BE ACCORDED A LESSER DEGREE OF CONFIDENTIALITY THAN EXECUTIVE AGENCY EMPLOYEES WITH RESPECT TO PERSONAL INFORMATION PERTAINING TO THEM. IT WOULD BE PARTICULARLY INCONGRUOUS TO APPLY SUCH A DISTINCTION BETWEEN GAO AND EXECUTIVE AGENCY EMPLOYEES IN THE CONTEXT OF THE BROAD COUNSELING PROGRAM SINCE ESSENTIALLY THE SAME PROGRAM APPLIES TO BOTH (FN6).

IN SUM, IT IS OUR OPINION THAT BROAD COUNSELING PROGRAM RECORDS MAINTAINED BY GAO WOULD BE SUBJECT TO A QUALIFIED PRIVILEGE FROM DISCOVERY AND, THEREFORE, A PLEDGE OF CONFIDENTIALITY WOULD BE APPROPRIATE. THE PLEDGE SHOULD NOT, OF COURSE, GO ANY FURTHER THAN THE PLEDGE APPLICABLE TO DRUG AND ALCOHOL ABUSE RECORDS.

EMPLOYEE EXIT QUESTIONNAIRE FORMS

THE FINAL CATEGORY OF RECORDS IS THE EMPLOYEE EXIT QUESTIONNAIRE FORM FILLED OUT BY EMPLOYEES WHO LEAVE GAO. WE UNDERSTAND THAT THE FORMS ARE MAINTAINED IN THE SAME LOCATION AS COUNSELING RECORDS, EVEN THOUGH THEY HAVE NO CONNECTION TO THE COUNSELING PROGRAMS DISCUSSED ABOVE. THE QUESTIONNAIRE SOLICITS CONSIDERABLE BACKGROUND INFORMATION ON EMPLOYEES AND THEIR REASONS FOR LEAVING GAO. IT CARRIES THE FOLLOWING LEGEND:

"YOUR ANSWERS TO THE QUESTIONS ASKED IN THIS QUESTIONNAIRE WILL BE COMPLETELY CONFIDENTIAL. PLEASE DO NOT SIGN THE QUESTIONNAIRE. YOUR COMPLETED QUESTIONNAIRE WILL NEVER IN ANY WAY BE ASSOCIATED WITH YOU EITHER BY BECOMING A PART OF YOUR PERSONNEL FILE OR BY ANY OTHER MEANS. AFTER YOU HAVE COMPLETED THE QUESTIONNAIRE PLEASE PLACE IT IN THE ENVELOPE PROVIDED TO YOU, SEAL THE ENVELOPE AND TURN IT IN TO THE PERSON SO DESIGNATED."

THE SAME FRAMEWORK AS DISCUSSED ABOVE CONCERNING THE BROAD COUNSELING RECORDS APPLIES TO THE EMPLOYEE EXIT QUESTIONNAIRE FORM. THAT IS, THE FORM IS NOT SPECIFICALLY PROTECTED BY A STATUTORY OR COMMON LAW PRIVILEGE AND ANY CLAIM OF PRIVILEGE WOULD HAVE TO ARISE BY OPERATION OF THE FOIA AND PRIVACY ACT. HOWEVER, WE HAVE IDENTIFIED A JUDICIAL PRECEDENT WHICH RATHER SPECIFICALLY REJECTS A CLAIM OF PRIVILEGE FOR THE TYPE OF INFORMATION COVERED BY THE EMPLOYEE EXIT QUESTIONNAIRE FORM. THE CASE IN POINT IS SEARS, ROEBUCK AND COMPANY V. GENERAL SERVICES ADMINISTRATION, 402 F. SUPP. 378 (D.D.C. 1975), REMANDED ON OTHER GROUNDS, 553 F.2D 1378 (D.C. CIR.), CERT. DENIED, 434 U.S. 826 (1977). THIS WAS A "REVERSE" FOIA SUIT IN WHICH SEARS SOUGHT TO PREVENT DISCLOSURE UNDER THE FOIA OF CERTAIN EQUAL EMPLOYMENT OPPORTUNITY REPORTS WHICH IT HAD SUBMITTED TO GSA. AMONG OTHER THINGS, SEARS CONTENDED THAT REPORTS ON WHY INDIVIDUALS HAD LEFT EMPLOYMENT WITH THE COMPANY SHOULD BE WITHHELD FROM DISCLOSURE UNDER FOIA EXEMPTION (B)(6). THE DISTRICT COURT REJECTED SEARS' CONTENTION UNDER THE BALANCING TEST APPLICABLE TO EXEMPTION (B)(6) QUESTIONS:

"ALL PARTIES AGREE THAT THE NAMES, ADDRESSES AND PHONE NUMBERS OF EMPLOYEES SHOULD BE DELETED. IN ADDITION, THE AGENCY PROPOSES TO DELETE CERTAIN OTHER IDENTIFYING INFORMATION AND COMMENTS. ***

"THE GSA DELETIONS WHICH THE INTERVENOR CHALLENGES FALL INTO TWO CATEGORIES - (1) COMMENTS INCLUDING REASONS APPLICANTS WERE NOT HIRED, REASONS EMPLOYEES LEFT SEARS, AND COMMENTS CONCERNING PROMOTIONS; AND (2) SERVICE, TERMINATION, AND PROMOTION DATES. THE COURT FINDS THAT THE FREEDOM OF INFORMATION ACT REQUIRES THAT GSA DISCLOSE MATERIAL CONTAINED IN BOTH CATEGORIES.

"THE AGENCY IN ITS REMAND OPINION AND THE GOVERNMENT IN ITS BRIEF IDENTIFIED RELATIVELY FEW PAGES WITH COMMENTS. MOREOVER, MOST OF THESE COMMENTS ARE HARMLESS AND CERTAINLY ARE NOT THE TYPE OF 'FILES THE DISCLOSURE OF WHICH WOULD CONSTITUTE A CLEARLY UNWARRANTED INVASION OF PERSONAL PRIVACY'. (IT IS ARGUED) THAT THE COMMENTS ARE IMPORTANT TO ASSESSING EMPLOYMENT DISCRIMINATION. AFTER WEIGHING THE PUBLIC INTEREST IN DISCLOSURE OF THESE COMMENTS AND TAKING INTO CONSIDERATION THE CHARACTER OF THE COMMENTS AS WELL AS THE UNLIKELIHOOD THAT IT WILL BE POSSIBLE FOR MEMBERS OF THE PUBLIC TO ATTACH THE COMMENTS TO PARTICULAR EMPLOYEES OF SEARS, THE COURT CONCLUDES THAT THE COMMENTS DO NOT FALL WITHIN EXEMPTION (B)(6)." 402 F. SUPP. AT 384-85.

THE COURT OF APPEALS AGREED WITH THE DISTRICT COURT'S CONCLUSIONS ON THIS ASPECT OF THE CASE. 553 F.2D AT 1383.

BASED ON THE SEARS CASE, IT APPEARS THAT A CLAIM OF PRIVILEGE FOR THE EMPLOYEE EXIT QUESTIONNAIRE USING THE FOIA (B)(6)/PRIVACY ACT RATIONALE WOULD PROBABLY FAIL AGAINST ANY REASONABLE ASSERTION OF INTEREST IN PUBLIC DISCLOSURE. WE KNOW OF NO OTHER BASIS FOR A CLAIM OF PRIVILEGE WITH REGARD TO THE QUESTIONNAIRE FORM. THEREFORE, WE DO NOT BELIEVE THAT THE PRESENT PLEDGE OF CONFIDENTIALITY FOR RESPONSES TO THE EMPLOYEE EXIT QUESTIONNAIRE IS LEGALLY SUPPORTABLE.

FN1 SUBSECTION (E) EXEMPTS FROM THE DISCLOSURE RESTRICTIONS INTERCHANGES OF RECORDS WITHIN THE ARMED FORCES OR WITHIN CERTAIN COMPONENTS OF THE VETERANS' ADMINISTRATION.

FN2 SUBSECTION (D) APPLIES THE DISCLOSURE RESTRICTIONS TO FORMER, AS WELL AS CURRENT, PATIENTS.

FN3 INSTEAD IT IS BASED ON THE GENERAL AUTHORITY UNDER 5 U.S.C. SEC. 7901 TO ESTABLISH AGENCY HEALTH SERVICE PROGRAMS FOR FEDERAL EMPLOYEES. SEE 57 COMP.GEN. 62 (1977).

FN4 THE CLOSEST CONCEPT APPEARS TO BE A SOCIAL WORKER-CLIENT PRIVILEGE, WHICH IS DISCUSSED IN AN ANNOTATION ENTITLED "COMMUNICATIONS TO SOCIAL WORKER AS PRIVILEGED," 50 A.L.P.3D 563 (1973). THE ANNOTATION DEFINES "SOCIAL WORKER" AS INCLUDING:

"*** CASEWORKERS OF PUBLIC AND PRIVATE FAMILY-SERVICE AND CHILD WELFARE AGENCIES, AND PROBATION AND PAROLE OFFICERS, AS WELL AS 'PRIVATE PRACTITIONERS' ENGAGED IN MARRIAGE AND CHILD COUNSELING IN SIMILAR ACTIVITIES ***." ID. AT 565.

HOWEVER, THE ANNOTATION IDENTIFIES VERY LITTLE JUDICIAL RECOGNITION OF A COMMON-LAW PRIVILEGE AS APPLIED TO THE RECORDS OR CONVERSATIONS OF PERSONS COVERED BY THE ABOVE DEFINITION. ANOTHER ANNOTATION, "PRIVILEGE IN JUDICIAL OR QUASI-JUDICIAL PROCEEDINGS, ARISING FROM RELATIONSHIP BETWEEN PSYCHIATRIST OR PSYCHOLOGIST AND PATIENT," 44 A.L.P. 3D 24 (1972), LIKEWISE PROVIDES VERY LITTLE SUPPORT FOR A NON STATUTORY PRIVILEGE.

IT IS CONCEIVABLE THAT PARTICULAR RECORDS DEVELOPED THROUGH THE BROAD GAO COUNSELING PROGRAM COULD BE SUBJECT TO A COMMON-LAW PRIVILEGE OR A PRIVILEGE ARISING UNDER STATE LAW. HOWEVER, THESE WOULD PROBABLY BE EXCEPTIONS. AS DISCUSSED ABOVE, THERE IS VERY LITTLE SUPPORT FOR A GENERAL PLEDGE OF CONFIDENTIALITY FOR BROAD COUNSELING PROGRAM RECORDS BASED ON THE COMMON LAW OR STATE STATUTES.

FN5 OF COURSE WE ARE DEALING HERE WITH A SITUATION IN WHICH THE AGENCY IS NOT SEEKING DISCLOSURE. THE PRIVACY ACT DOES CONTAIN OTHER CONDITIONS OF DISCLOSURE WHICH AN AGENCY COULD INVOKE IF IT WISHED TO RELEASE INFORMATION - FOR EXAMPLE, INTRA-AGENCY DISCLOSURES ON A "NEED TO KNOW" BASIS, 5 U.S.C. SEC. 552AB)(1), OR DISCLOSURES, PURSUANT TO A WRITTEN REQUEST, IN CONNECTION WITH CIVIL OR CRIMINAL LAW ENFORCEMENT ACTIVITIES, 5 U.S.C. SEC. 552AB)(7). HOWEVER, THE AGENCY COULD WAIVE THE RIGHT TO INITIATE SUCH DISCLOSURES BY GIVING A PLEDGE OF CONFIDENTIALITY.

FINALLY, IT SHOULD BE NOTED THAT THE PRIVACY ACT CONTAINS A CONDITION OF DISCLOSURE TO CONGRESSIONAL SOURCES. 5 U.S.C. SEC. 552AB)(9). AN AGENCY COULD NOT, THEREFORE, CLAIM A STATUTORY PRIVILEGE FROM DISCLOSURE TO CONGRESS OR WAIVE CONGRESSIONAL RIGHTS TO INFORMATION; BUT IT SEEMS EXTREMELY UNLIKELY THAT A CONGRESSIONAL SOURCE WOULD SEEK ACCESS TO THE COUNSELING RECORDS OF AN INDIVIDUAL EMPLOYEE. FN6 IT COULD BE EVEN ARGUED THAT FPM LETTER 792-9, WHICH IMPLEMENTS THE BROAD COUNSELING PROGRAM FOR BOTH GAO AND OTHER AGENCIES, REQUIRES CONFIDENTIALITY. THE FPM LETTER, AT PAGE 8, REFERS TO THE STATUTORY AND REGULATORY CONFIDENTIALITY PROTECTIONS APPLICABLE TO THE DRUG AND ALCOHOL COUNSELING PROGRAMS, AND POINTS OUT:

"THE (DRUG AND ALCOHOL PROGRAM) REGULATIONS ALSO PROHIBIT IMPLICIT AND NEGATIVE DISCLOSURES. 'THE DISCLOSURE THAT A PERSON *** IS NOT OR HAS NOT BEEN ATTENDING A PROGRAM *** IS FULLY AS MUCH SUBJECT TO THE PROHIBITIONS *** AS A DISCLOSURE THAT SUCH A PERSON IS OR HAS BEEN ATTENDING SUCH A PROGRAM. ANY IMPROPER OR UNAUTHORIZED REQUEST FOR ANY DISCLOSURE OF RECORDS OR INFORMATION SUBJECT TO THIS PART MUST BE MET BY A NONCOMMITTAL RESPONSE' (2.13(E)). THIS MEANS THAT AGENCIES RUNNING BROAD EMPLOYEE COUNSELING SERVICES PROGRAMS MUST ADHERE TO THE CONFIDENTIALITY REQUIREMENTS CITED ABOVE IN DEALING WITH INFORMATION ABOUT ALL PROGRAM PARTICIPANTS, SO AS TO PREVENT IMPLICIT OR NEGATIVE DISCLOSURES ABOUT PARTICIPANTS WITH ALCOHOL OR DRUG PROBLEMS."

IN ANY EVENT, WE HAVE BEEN INFORMALLY ADVISED BY ATTORNEYS IN THE OFFICE OF PERSONNEL MANAGEMENT THAT THEY WOULD REGARD BROAD COUNSELING RECORDS OF AN EXECUTIVE AGENCY AS BEING PROTECTED FROM DISCLOSURE UNDER THE FOIA AND PRIVACY ACT.