American Federation of Government Employees, Local 1592 and Department of the Air Force, Ogden Air Logistics Center, Hill AFB, Utah, 0-AR-3560, June 9, 2003, 58 FLRA No. 145.

FLRA turned down union exceptions to an award in which the arbitrator held that 5 U.S.C. § 552a(b)(1) and (8) sanctioned the agency physician's disclosure of medical information to the grievant's physician, where the former needed to know why a discrepancy existed between his assessment of the grievant's condition and that of the grievant's personal physician. The Privacy Act exception was dismissed because the union neither alleged nor demonstrated that the release of the information had an adverse effect on the grievant.

The agency's physician recommended that the grievant, who had had an off-duty accident, be medically disqualified from his position. Following treatment from his personal physician, the grievant presented the agency physician with a note from his doctor indicating that he could return to duty without restriction. The agency physician then wrote to the grievant's doctor in which he discussed the grievant's physical condition.

The union filed a grievance, claiming that the agency violated the Privacy Act, 5 U.S.C. § 552a, by disclosing the grievant's medical records without his prior written consent. The matter was referred to arbitration. Before the arbitrator, the agency argued, for the first time, that the grievance wasn't arbitrable because violations of the Privacy Act can only be pursued in Federal court. The arbitrator, finding that the contract precluded the agency from raising the jurisdictional argument for the first time in front of the arbitrator, assumed, but didn't decide, that the matter was grievable. He went on to find that the agency didn't violate the Privacy Act.

When the union filed exceptions, the Authority, citing Quinn v. Stone, 978 F.2d 126, 131 (3rd Cir. 1992), said that "[t]o maintain a suit for an unauthorized disclosure of information under 5 U.S.C. § 552a(g)(1)(D), a claimant must provide the following four elements: . . . (3) the disclosure had an 'adverse effect' on the claimant; . . . . The 'adverse effect' requirement is, in effect, a standing requirement."

Finding that the union neither alleged nor demonstrated that the release of the information had an adverse effect on the grievant, and noting that the grievant had testified in the arbitration hearing that he would have given his permission if asked, FLRA concluded that the union failed to establish that the agency violated the Privacy Act.

In her concurring opinion Chairman Cabaniss agreed that the grievant didn't present a cognizable claim, but for different reasons. As fully explained in her dissent in Robins AFB, 57 FLRA No. 97, she believes that the FLRA has no jurisdiction over alleged violations of the Privacy Act.