Authority of the Chairman of the Defense Nuclear Facilities Safety Board to Disclose Performance Appraisals of Senior Executive Service Employees
Background
- The Defense Nuclear Facilities Safety Board (DNFSB) is an independent executive-branch agency of five members; the President designates one member as Chairman who is the Board’s chief executive and supervises employees "subject to such policies as the Board may establish." 42 U.S.C. §§ 2286(c)(2), (5).
- A Board member requested access to written Senior Executive Service (SES) performance appraisals maintained by the Board; the Chairman sought OLC guidance because the Board’s Office of General Counsel (OGC) opposed disclosure under the Board’s statute and the Privacy Act.
- The statutory question: whether section 2286(c)(5)(B) (each member’s right to “full access to all information relating to the performance of the Board’s functions, powers, and mission”) entitles a member to SES appraisals that relate to employee supervision policy.
- The Privacy Act, 5 U.S.C. § 552a, generally bars disclosure of records in a system of records unless an exception applies; OLC analyzed whether the Act’s “need to know” exception permits disclosing appraisals to a Board member.
- OLC concluded that (1) the Board’s organic statute encompasses policymaking regarding appointment and supervision of employees (a Board function), so appraisals "relate to" that function and are within a member’s statutory access right; and (2) the Privacy Act’s need-to-know exception authorizes disclosure to a Board member because the member has a legitimate need to evaluate the appraisal system and formulate policy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board’s organic statute grants a member access to SES performance appraisals | Member: Appraisals relate to the Board’s function of establishing policies on appointment and supervision, so §2286(c)(5)(B) gives access | OGC: Chairman, as CEO, alone supervises employees; Board functions are limited to substantive facility oversight listed in §2286a(b) | Held: Statute reasonably read to include policymaking on employee supervision; appraisals “relate to” that function, so member has statutory access right |
| Whether the Chairman’s delegated managerial autonomy prevents member access | Member: Board oversight over Chairman’s exercise of administrative duties supports access | OGC: Chair’s CEO role implies sole responsibility for supervision, limiting members’ access | Held: Chairman is subject to Board policymaking authority; CEO autonomy exists but does not override members’ access to records related to Board functions |
| Whether the Privacy Act bars disclosure of SES appraisals | OGC: Appraisals are records in a system and Privacy Act prohibits disclosure absent consent or exception | Member: Need-to-know exception applies because member is an officer with need to assess appraisal system and make policy | Held: The Privacy Act’s §552a(b)(1) need-to-know exception permits disclosure to the Board member because the member has a legitimate need in performing official duties |
| Whether other Privacy Act exceptions or limits alter the result | OGC: Other exceptions or statutory tensions could restrict disclosure | Member: Not raised as dispositive | Held: OLC found need-to-know exception sufficient and did not decide other exceptions; member must still comply with any subsequent use or disclosure restrictions under Privacy Act or other laws |
Key Cases Cited
- BedRoc Ltd., LLC v. United States, 541 U.S. 176 (statutory-text-first approach; plain-meaning inquiry)
- Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724 ("relate to" has broad common-sense meaning)
- McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (interpreting "necessary" to include "useful" or "conducive")
- Cellular Telecommunications & Internet Ass’n v. FCC, 330 F.3d 502 (deference to broader readings of statutory terms like "necessary")
- Pippinger v. Rubin, 129 F.3d 519 (need-to-know exception applied where records provide investigatory context)
- Bigelow v. Department of Defense, 217 F.3d 875 (official had need to know records to assess subordinate’s trustworthiness)
- Reuber v. United States, 829 F.2d 133 (needs related to supervision or contractor oversight satisfy need-to-know)
- Energy Research Found. v. Defense Nuclear Facilities Safety Bd., 917 F.2d 581 (DNFSB is an agency subject to the Privacy Act)