dissenting.
The issues involved in this case are, we are told, being litigated in all circuits. A number of courts have already published opinions on this subject, and I see no reason to burden the legal world’s already groaning bookshelves with an extended rehearsal of the reasoning of those courts which have rejected the FLRA position. Suffice it to say that I accept their reasoning. Thus, I will merely cite those cases, and add a few brief reflections.
The reasons for not enforcing the FLRA’s orders are well stated in FLRA v. Department of the Navy, 941 F.2d 49 (1st Cir.1991) and FLRA v. Department of Treasury, 884 F.2d 1446 (D.C.Cir.1989) cert. denied, 493 U.S. 1055, 110 S.Ct. 868, 107 L.Ed.2d 947 (1990). They were also cogently outlined in a panel opinion in FLRA v. Department of the Navy, 944 F.2d 1088 (3d Cir.1991), an opinion which has since been withdrawn because the Third Circuit has granted an en banc rehearing of the case. See also Hopkins v. HUD, 929 F.2d 81 (2d Cir.1991).
The First Circuit and the District of Columbia Circuit have also addressed the subject that the majority does not address— the effect of the Privacy Act’s exception for routine use. They properly have found that the blanket FLRA order cannot be supported by that exception.
Having said this much, I will simply underscore a few points made by those courts in order to indicate the important issues on which they, and I, differ with the majority.
First, the relevant interest of the unions and the public in disclosure must be considered nil in the context of FOIA. That is because the sole interest recognized under that enactment is an interest of citizens in knowing “ ‘what their government is up to.’ ” Department of Justice v. Reporters Committee, 489 U.S. 749, 773, 109 S.Ct. 1468, 1481, 103 L.Ed.2d 774 (1989). See also Department of State v. Ray, — U.S. -, 112 S.Ct. 541, 549, 116 L.Ed.2d 526 (1991). Moreover, there is no need to har*1498monize the Labor Statute with FOIA. Congress directed the proper approach when it required that disclosures must not be prohibited by law. This disclosure is prohibited by law as far as FOIA is concerned, unless it comports with FOIA’s owh core requirement. It does not.
Second, if the relevant interest in disclosure is nil, it takes very little on the side of the privacy interest to outweigh it. As the majority points out, the privacy interest involved here has been characterized in many ways by many judges. One fears that the varying characterizations have little to do with law and a good deal to do with the value that each judge places on this kind of privacy. I, for one, give it substantial weight. At any rate, everyone agrees that it has some weight. That should suffice for FOIA purposes. Incidentally, it seems to me that the lists the unions seek, like the others referred to by the majority, reveal much more than names and addresses. They also reveal the fact that an employee works for a particular agency of the government, and, depending on the focus of the particular union, they may also reveal the kind of work the person does. For example, one supposes that a list obtained by an airport controllers union would contain information about airport controllers.
Finally, because FOIA does not discriminate among recipients or uses of information, if the unions are entitled to break the seal of privacy and throw open the doors of this adytum, the doors will be opened to everyone. That will even be true if the unions themselves do not further release the information. Nothing prevents them from doing so. The majority states that unions have interests which are different from those of others. But FOIA has no such limitation. Indeed, the majority’s assertion of that element seems to be an implicit rejection of the Reporters Committee holding that the identity and interests of the requesting party are beside the point. As the Court said:
If respondents are entitled to have the FBI tell them what it knows about Medico’s criminal history, any other member of the public is entitled to the same disclosure — whether for writing a news story, for deciding whether or not to employ Medico, to rent a house to him, to extend credit to him, or simply to confirm or deny a suspicion.
Reporters Committee, 489 U.S. at 775, 109 S.Ct. at 1482. In other words, whether your interests are driven by news, need or nebbiness, your rights under FOIA are the same.
The FLRA’s determination that it has the authority to abolish FOIA protections on a blanket basis whenever it deems that “necessary” is contrary to law. Thus, I respectfully dissent.