concurring in part and dissenting in part.
Although I concur in the majority’s judgment that the agency employers must disclose to the unions the names and home addresses of bargaining unit employees, I dissent from the holding that employees may ask their employers to keep the information confidential. In my view, this caveat has no basis in law, undermines the rationale for the majority’s principal holding, conflicts with decisions of the Second and Fourth Circuits, and fashions a remedy that was not requested or discussed by any party to this action.1
*1145Federal agency employers, as a component of their duty to negotiate in good faith with their employees’ bargaining representatives, must release to those representatives data that are: (1) reasonably available; (2) normally maintained by the agency in the regular course of business; and (3) necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. 5 U.S.C. § 7114(b)(4). Having determined that each of these criteria is satisfied, a decision with which I fully concur, the majority then analyzes the exception to the disclosure requirement: disclosure is not required to the extent that it is prohibited by law. 5 U.S.C. § 7114(b)(4). The majority holds that disclosure of the employees’ names and addresses is not prohibited by law, and therefore is required. Up to this point the majority’s analysis is sound and in accord with the decisions of the Fourth and Second Circuits in United States Dep’t of Health and Human Servs. v. FLRA, 833 F.2d 1129 (4th Cir.1987) and AFGE, Local 1760 v. FLRA, 786 F.2d 554 (2d Cir.1986).
The majority then states, however, that “the interests in privacy and disclosure will be optimally served by requiring disclosure of the names and addresses of only those employees who do not request their employers to keep the information confidential.” At 1144. I cannot agree with this analysis. First, there exists no legal authority to support it. Second, it undermines the rationale for requiring disclosure in the first instance, which is that the public interest in collective bargaining and satisfactory performance of the union’s statutory duty to represent all employees outweighs the employees’ privacy interest, as both the Second and Fourth Circuits have held.
Moreover, it is the function of the court to decide whether the employer’s duty to bargain in good faith encompasses the duty to disclose this information. The court must decide whether disclosure is prohibited by law, because that is the only statutory circumstance in which disclosure is not required. Nevertheless, the effect of the majority’s approach is to allow each individual employee to decide whether his name and address will be disclosed. Clearly, the Federal Service Labor-Management Relations Act (FSLMRA) contains no such exception to the duty of disclosure that is part of the duty to bargain in good faith. Nor is it consistent with the scheme of the Freedom of Information Act (FOIA) to allow individual government employees to decide whether the privacy exemption applies to them. When confronted with the question of the applicability of the FOIA’s privacy exemption, the court cannot abdicate its responsibility by allowing individual employees to decide for themselves the applicability of the exemption.
The FSLMRA provides that the only circumstances in which disclosure of such information is not required is when it is prohibited by law. The court nevertheless holds that disclosure is not required when an individual requests confidentiality. The effect of this decision is to make disclosure of data that have been determined by three circuit courts to be necessary to the collective bargaining process “prohibited by law” at the request of individual employees. Because there is no statutory authority for this decision, and because it conflicts with the proper balancing of interests under the FOIA, I dissent.
. The FLRA suggested that "to the extent individual employees wish to preserve the privacy of their identities and home addresses, there is no reason to believe that they will not be able to have that information deleted from union mailing lists.” Brief of FLRA at 31 (emphasis added). The FLRA thus seems to suggest that after the employers disclose the names and addresses to the unions, the employees may ask the union to delete their names from the mailing lists. This suggestion is quite different from the suggestion that employees may ask the employers not to disclose the information. Under the FLRA’s suggested approach, the employers must still comply with the law's disclosure requirement. Under the majority’s approach, however, the employees can effectively exempt the employers from complying with the disclosure requirement.