Information Requests Melissa Baumann Sec/Treas NFFE FS Council John R. Obst VP NFFE

Ever been perplexed with a grievance or negotiations proposal?

Maybe you need a better understanding of the issues. Why do an information request? To get evidence whether or not a grievance or other complaint should be filed. To get evidence whether or not a grievance or other complaint should be filed. To get additional evidence to support a complaint/grievance/arbitration. To get additional evidence to support a complaint/grievance/arbitration. To get information to support the Union’s negotiation proposal and/or to refute management’s positions in negotiations. To get information to support the Union’s negotiation proposal and/or to refute management’s positions in negotiations.

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

5 USC 7114(b)(4) (cont’d) Which is not:Which is not: guidance, advice, counsel, or training provided for management officials or supervisors, relating to bargaining; 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. prohibited from disclosure by law; for example, by the Privacy Act.

Sounds Easy. Right?

The devil is in the details. The details can be found at: Guidance from the FLRA. Guidance from the FLRA. mation Various case law (available at Various case law (available at 50 FLRA 86 (IRS, Kansas City)50 FLRA 86 (IRS, Kansas City) 50 FLRA 55 (FAA, Westbury)50 FLRA 55 (FAA, Westbury)

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

“Necessary for full and proper discussion…” “Particularized need” may not be simple statements such as “Info is needed to represent employees.” “Particularized need” may not be simple statements such as “Info is needed to represent employees.” Union must explain: Union must explain: why it needs the info;why it needs the info; how it will use the info;how it will use the info; how the information’s use relates to the Union’s representational responsibilities.how the information’s use relates to the Union’s representational responsibilities. Union need not disclose strategy or identity of potential grievant. Union need not disclose strategy or identity of potential grievant. For personal identifiers on data, the Union must demonstrate a separate particularized need. For personal identifiers on data, the Union must demonstrate a separate particularized need.

“Not guidance, advice, counsel, etc. relating to bargaining…” Cannot be management-to-management info related to bargaining. Cannot be management-to-management info related to bargaining. Management may try to use this to deny other types of management memos. Management may try to use this to deny other types of management memos.

“Not prohibited by law.” Privacy Act, Privacy Act, Privacy Act! Privacy Act, Privacy Act, Privacy Act! Rarely does the FLRA find reason for personal identifiers to be released. Rarely does the FLRA find reason for personal identifiers to be released. Sanitized data from which people can be identified is also generally not available. Sanitized data from which people can be identified is also generally not available. 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. 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. Good luck!

Agency response. Agency must respond within a reasonable amount of time. Agency must respond within a reasonable amount of time. “Reasonable” depends upon the data requested.“Reasonable” depends upon the data requested. Union should be able to expect acknowledgement of request within two weeks.Union should be able to expect acknowledgement of request within two weeks. Union should indicate a (reasonable) date by which it expects to receive the information.Union should indicate a (reasonable) date by which it expects to receive the information.

Agency response, cont. Agency must provide data or communicate why it is not providing the data, for example: Agency must provide data or communicate why it is not providing the data, for example: Union did not give adequate particularized need;Union did not give adequate particularized need; Privacy Act concerns;Privacy Act concerns; not regularly maintained;not regularly maintained; documents do not exist.documents do not exist.

Refusal to bargain in good faith… If the Agency does not give the Union its reasons for denying disclosure of information, or doesn’t respond at all, 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.

Resolution. Agency and Union are expected to discuss Information Requests in good faith: Agency and Union are expected to discuss Information Requests in good faith: clarification of particularized need;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 may satisfy the Union’s need for the information; alternative forms or means of disclosure that satisfy the Agency’s reasons for not disclosing.alternative forms or means of disclosure that satisfy the Agency’s reasons for not disclosing.

FLRA Analysis: Has the Union shown a particularized need (including for personal identifiers, if requested)? 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? 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? Have the Parties communicated their disclosure interests and explored other alternatives?

The Process for making a request. Provide particularized need, including reason you chose timeframes for the data. Provide particularized need, including reason you chose timeframes for the data. If you need personal identifiers ask for them. But also ask that, in the alternative, the data be provided in sanitized form. If you need personal identifiers ask for them. But also ask that, in the alternative, the data be provided in sanitized form. Management generally won’t give you what you don’t ask for (in disciplinary cases, ask for all the information in the file, especially exculpatory information). Management generally won’t give you what you don’t ask for (in disciplinary cases, ask for all the information in the file, especially exculpatory information).

Process (cont’d.). Using the format suggested by the FLRA ( request information from: Using the format suggested by the FLRA ( request information from: management official who has the data;management official who has the data; labor-relations specialist;labor-relations specialist; other management official(s) as appropriate.other management official(s) as appropriate. to official(s), with cover note asking that they contact you if they have any questions or concerns about the request. to official(s), with cover note asking that they contact you if they have any questions or concerns about the request. CC yourself on the ! CC yourself on the ! Wait. Wait.

Response from management. You get the data -- GREAT! You get the data -- GREAT! If management has questions about the particularized need, the exact data needed, etc. - If 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 , cc yourself and keep copy.Work with management to clarify concerns. Keep notes of meetings, with date, time, who was there, decisions made. If , cc yourself and keep copy. If management refuses to provide data based on a particular, stated interest If 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 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.If you disagree with management’s assessment, tell them so, and ask to meet to discuss.

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

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

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

Hypothetical situation: Employee contacts you with a complaint that he was denied the use of credit hours on Fridays because of “unit coverage issues.” Employee contacts you with a complaint that he was denied the use of credit hours on Fridays because of “unit coverage issues.” He knows that other unit employees are frequently absent on Fridays, but doesn’t know if they are using credit hours, on AL or some other type of leave. He knows that other unit employees are frequently absent on Fridays, but doesn’t know if they are using credit hours, on AL or some other type of leave. Before filing any complaint, an info request is probably the best first step. Before filing any complaint, an info request is probably the best first step.

Use the modified FLRA format as a default. DATE: May 1, 2006 DATE: May 1, 2006 REQUESTOR:NFFE Forest Service Council, IAM&AW REQUESTOR:NFFE Forest Service Council, IAM&AW UNION CONTACT:John R. Obst UNION CONTACT:John R. Obst AGENCY CONTACT:XXX, (If you are not the appropriate official to respond to this request, please forward it to that official and so inform me.) AGENCY CONTACT:XXX, (If you are not the appropriate official to respond to this request, please forward it to that official and so inform me.) INFORMATION REQUESTED: XXX INFORMATION REQUESTED: XXX DATE REQUESTED TO RECEIVE THE INFORMATION: May 30, 2006 DATE REQUESTED TO RECEIVE THE INFORMATION: May 30, 2006 PARTICULARIZED NEED: PARTICULARIZED NEED: PRIVACY ACT AND THE PUBLIC INTEREST: PRIVACY ACT AND THE PUBLIC INTEREST: OTHER MATTERS: Please contact me if the agency requires further clarification of our request or wants to meet to discuss the request, or a format or means of furnishing this information to the Union, or the issues giving rise to this request. OTHER MATTERS: Please contact me if the agency requires further clarification of our request or wants to meet to discuss the request, or a format or means of furnishing this information to the Union, or the issues giving rise to this request.

Info request example. INFORMATION REQUESTED: “The Union requests copies of Information Services employee timesheets for the past two years. The Union also requests copies of all customer comment cards and copies of all documents related to all customer service (including internal customers), and documents and policies related to “coverage,” for the same time period for the Information Services unit. Personal identifiers may be omitted.”

Info request example. PARTICULARIZED NEED: “The documents requested are needed to evaluate a possible grievance by a Bargaining Unit employee regarding the Information Services supervisor’s refusal to authorize the use of credit hours on Fridays. The Union will use these documents to evaluate unit “coverage” and feedback on customer service to determine whether the denial of the use of credit hours was reasonable and appropriate.”

Info request example PRIVACY ACT AND THE PUBLIC INTEREST: “The Union believes that some these items are covered by the Privacy Act, but the Union does not know which specific system of records. The disclosure of this information would allow the public to monitor the manner in which the Government applies the Alternative Work Schedule program, whether it does so in a fair and equitable manner, and whether the needs of the Government’s customers are being adequately met. The time period chosen should allow the Union to conduct an adequate evaluation without this request being burdensome on the Agency. Since personal identifiers are not requested, the Union believes that the public interest outweighs any privacy interests.”