Information Requests

1. Information Requests Melissa Baumann NFFE FS Council Grievance Committee Modified for Reno Training, 10/03 by J.R. Obst

2. The Statute: 5 USC 7114(b)(4). • Agencies must furnish information that is: • normally maintained in the regular course of business; • reasonably available and necessary for full and proper discussion, understanding, and negotiation of collective bargaining subjects.

3. 5 USC 7114(b)(4) (cont’d) • But, by statute, agencies do not furnish information which is: • guidance, advice, counsel, or training provided for management officials or supervisors, relating to bargaining; • prohibited from disclosure by law (for example, by the Privacy Act).

4. Sounds Easy. Right?

5. It can be easy… • Some agency officials respond readily to “informal” information requests. (The Union orally or in writing simply states what documents it wants.) • If this is your situation, be thankful and keep doing what you are doing.

6. But, many agency managers “play it by the book;” others are uncooperative. Info requests must then strictly adhere to the statute and case law. For Guidance: • FLRA Office of General Counsel http://www.flra.gov/gc/inf_guid.html • Case law: www.flra.gov • 50 FLRA 86 (IRS, Kansas City) • 50 FLRA 55 (FAA, Westbury)

7. To get the information, the data must be “normally maintained” and “reasonably available.” • Agency must have the data/documents. • Union cannot ask Agency to create new analyses, although the raw data for the analyses may be requested. • “Reasonably available” has meant that the Agency would not have to go to extreme and excessive means to provide data.

8. The data must be“necessary.” • “Particularized need” may not be simple statements such as, “Info is needed to represent employees.” • Union must explain: • why it needs the info; • how it will use the info; • how the information’s use relates to the Union’s representational responsibilities.

9. The data must be“necessary,” cont. • Union need not disclose its strategy or the identity of the (potential) grievant. (Hard not to do, but it will come out sooner or later, anyway.) • To get personal identifiers (name, SSN, employee ID Number, etc.), the Union must demonstrate a separate particularized need.

10. Personal identifiers. (Name, SSN, Employee ID Number, etc.) • If PI is necessary, always make two requests: one with, and one without, personal identifiers. • The “sanitized” data usually is enough. • If not, getting the sanitized data then may allow a particularized need to be explicitly stated for personal identifiers. • It is rare to need or get personal identifiers.

11. “Guidance, advice, counsel, etc. relating to bargaining” will not be provided. • Cannot be management-to-management information related to bargaining. • Management may try to use this to deny other types of management memos.

12. Disclosure of information must not be prohibited by law. • Privacy Act, Privacy Act, Privacy Act! • Rarely does the FLRA find reason for personal identifiers to be released. • Sanitized data from which people can be identified may be refused. • In requesting release of personal identifiers the Union must demonstrate a public interest or show that the info is covered by a “routine use” under the Privacy Act.

13. The Process – making a request for information if you are in the compliance mode. • Use the modified FLRA form (handout). • Provide particularized need, including the reason you chose timeframes for the data. • If you need personal identifiers ask for them. But also ask that the data be provided in sanitized form. • Make a detailed request: management generally won’t give you what you don’t specifically ask for.

14. Ask for specific information. • Identify documents clearly, when possible. By author, date, subject, etc. • For general requests, be inclusive. When asked for information which “the agency used to determine discipline” the agency withheld information that would have helped the employee. (“Didn’t use that!” they said.) For discipline and performance cases, be sure to ask for all “exculpatory evidence.”

15. Process (cont’d) • Request information from: • Management official who has the data; • Labor-relations specialist; • Other involved/appropriate management officials. • E-mail to officials, with cover note asking that they contact you if they have any questions or concerns about the request. Use “return receipt” in Lotus Notes. • CC yourself on the e-mail! • Wait.

16. Agency response • Agency must respond within a reasonable amount of time. • Reasonable depends upon the data requested and agency workload. • Union should expect acknowledgement of its request within two weeks. • Agency must provide data or communicate why it is not providing the data, for example: • Union did not give adequate particularized need; • Privacy Act concerns; • Not regularly maintained; • Documents do not exist.

17. Positive response from management. • You get the data -- GREAT!

18. If there is disagreement and you don’t get the info: • Agency and Union are expected to discuss the request in good faith. • Clarification of particularized need. • Alternative forms or means of disclosure that may satisfy the Union’s need for the information. • Alternative forms or means of disclosure that satisfy the Agency’s reasons for not disclosing.

19. Try to resolve the disagreement. • Management has questions about the particularized need, the exact data needed, etc. -- • Work with management to clarify concerns. Keep notes of meetings, with date, time, who was there, decisions made. If e-mail, cc yourself and keep copy. • Management refuses to provide data based on a particular, stated interest -- • If you think you could do better clarifying your position, need, etc. with management, do so. • If you disagree with management’s assessment, tell them so, and ask to meet to discuss.

20. Not getting the info may be a “refusal to bargain…” If the Agency does not give the Union its reasons for denying disclosure of information, this is a refusal to bargain in good faith (5 USC 7116(a)(1) and (5)), even if the Union is not entitled to the information for a valid reason. If the agency does not properly respond to an information request, an Unfair Labor Practice Charge (or grievance) may be filed.

21. FLRA Analysis of ULP Charge • Has the Union shown a particularized need (including for personal identifiers, if requested)? • Has the Agency given an adequate analysis of its interests, other 7114(b)(4) reasons, or Privacy Act reasons for not disclosing? • Have the Parties communicated their disclosure interests and explored other alternatives?

22. To file ULP charge • Decision to file a ULP should be made by the Local, not just an individual officer/steward • Give management a brief prenotification, indicating what the issue is, what the Union will charge as violations, and who management should contact to resolve the issue. • After 5 days, if no one has contacted you, you may file a ULP charge with FLRA.

23. Paperwork for Charge • Fill out FLRA Form 22: Charge Against an Agency • Describe what happened, when, who did it. Include statement that you provided management with 5 days notice per our contract • Include supporting documentation as “Additional Materials” with a summary sheet describing the documents. This should be clearly identified as not being part of the charge. • E-mail when original request was sent. • The original request. • Any responses from management. • Notes from meetings, e-mails, etc. in which the resolution of the request are discussed.

24. Paperwork for charge • Letter of service no longer needed (you sign certification of service in Box 8 on the form). • Send Form and Additional Materials to FLRA. • Send copy of Form to management official who you listed on top of FLRA Form. • Wait.

25. When FLRA calls • Be factual. • Do not speak poorly of management. • Stress the efforts you have made to resolve the request. • Be cooperative with FLRA and provide any additional information they need in a timely manner.

26. FLRA Role • Investigate the charge. • Decide if there is merit to the charge. • Work to settle the charge, and get information from Management. • Issue complaint or dismissal. (If dismissed, you can file a new – better - info request on the same subjects.) • If complaint is issued, FLRA will serve as the “prosecutor” and will take the charge to a hearing.

27. Statutory period for response frequently not adhered to Must pay for information Access for anyone in public Request goes to FOIA officer, no connection with labor issues “Reasonable” time limit No cost Access limited to Unions Labor relations officer responds FOIA Labor Statute

28. Remedy via court litigation which costs money Union must enforce No status quo ante Remedy via ULP process – no cost FLRA assistance in enforcement Pre-charge in working with Agency and Union Litigating ULP complaint Status quo ante in all cases, and non-traditional remedies in appropriate cases FOIA Labor Statute

29. Only paper data Exemptions apply (e.g. documents that relate solely to internal personnel rules and practices) Broader rights – to inspect, answer, have dialog with management No exemptions – but union must show particularized need FOIA Labor Statute