Information Requests Under the Federal Service Labor-Management Relations Statute (FSLMRS) | Practical Law

Information Requests Under the Federal Service Labor-Management Relations Statute (FSLMRS) | Practical Law

A Practice Note discussing a federal sector union's right to information solely within an agency's possession that is necessary and relevant to the union's representational responsibilities under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note addresses when an agency must provide information to a union and the particularized need standard set by the Federal Labor Relations Authority (FLRA) to determine whether the requested information is necessary under the FSLMRS.

Information Requests Under the Federal Service Labor-Management Relations Statute (FSLMRS)

by Practical Law Labor & Employment
Maintained • USA (National/Federal)
A Practice Note discussing a federal sector union's right to information solely within an agency's possession that is necessary and relevant to the union's representational responsibilities under the Federal Service Labor-Management Relations Statute (FSLMRS). This Note addresses when an agency must provide information to a union and the particularized need standard set by the Federal Labor Relations Authority (FLRA) to determine whether the requested information is necessary under the FSLMRS.
The Federal Service Labor-Management Relations Statute (FSLMRS) provides the framework for collective bargaining in the federal sector. If a union is the exclusive representative of agency employees, that union and the agency must negotiate in good faith about conditions of employment (5 U.S.C. § 7114(b)). As in the private sector, the employer's obligation to bargain includes a duty to furnish the union with information pertaining to the subjects of bargaining. In 1995, the FLRA adopted the "particularized need" standard to determine whether union requested information is necessary under the FSLMRS. This Note covers federal law and applies only to federal unions, agencies, and employees.
Generally, federal agencies must provide information to a union on request and to the extent not prohibited by law.
This Note discusses:
  • When an agency must provide information requested by a union.
  • The FLRA's particularized need standard.
  • What information is necessary for the union to fulfill its full range of representational responsibilities.
  • An agency's interest in not disclosing requested information.
  • Agency responsibility when the union has not established a particularized need for the requested information.
  • Guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.
  • Information requests and the Privacy Act.
For more information about the FLRA's processes, see Federal Public Sector Employment Law Toolkit: Federal Labor Relations.
For more information on civil service protections for federal employees, see:

Agency Obligation to Provide Requested Information to the Union

The agency's duty to negotiate in good faith under the FSLMRS includes the obligation to furnish the union requested information not prohibited by law, including data:
  • Normally maintained by the agency in the regular course of business.
  • Reasonably available.
  • Necessary for full and proper:
    • discussion;
    • understanding; and
    • negotiation of subjects within the scope of bargaining.
The agency is not required to give the union managerial or supervisory guidance related to bargaining, including:
  • Guidance.
  • Advice.
  • Counsel.
  • Training.
(5 U.S.C. § 7114(b)(4).)

Normally Maintained Data

Data is "normally maintained" if the agency:
  • Possesses and maintains the data.
  • Maintains the data in the regular course of business.
  • Has the information within its control.
(See Food and Drug Admin., 48 F.L.R.A. 424 (1993); U.S. DOJ, 46 F.L.R.A. 1526 (1993), and Dep't of Health and Human Serv., 37 F.L.R.A. 1277 (1990).)
The requirement that an agency provide information does not extend to material not normally maintained in the regular course of business, for example:
  • Special questionnaires distributed by management to its analysts for use in interviewing employees about travel practices are not standard forms, like travel vouchers or payroll records. The agency formulated the questionnaires as a guide for inexperienced analysts and the FLRA found that the questionnaires were not documents normally maintained by the agency (Dep't of Health & Human Serv., 12 F.L.R.A. 390, 403 (1983)).
  • Feedback reports of surveys compiled by a contractor and supplied only to immediate supervisors (not the agency) of the involved work groups. These reports were the confidential property of the immediate supervisors receiving the reports to prepare an “action plan” for improvements in managerial practices (U.S. Food and Drug Admin, 19 F.L.R.A. 555,557 (1985)).
  • Material in the possession of the Agency's Office of Inspector General (OIG) was not information normally maintained by or reasonably available to the agency because the agency did not control access to OIG files (U. S. Dep't of Just., 45 F.L.R.A. 1355, 1358-59 (1992)).

Reasonably Available

Information is "reasonably available" when it is not extremely hard for the agency to get the information (Dep't of Health and Human Servs., 36 F.L.R.A. 943, 950 (1990)). The FLRA applies the ordinary definition of reasonable (accessible and attainable, not extreme, or excessive). Determining if extreme or excessive means are necessary to retrieve available data requires a case-by-case analysis of the facts and circumstances.
Information may be reasonably available even when the agency must spend time and money to get the information. For example, the FLRA found information reasonably available when:
The FLRA has held that there is nothing in the language of 5 U.S.C. § 7114(b) or its legislative history that indicates that Congress intended a union's right to information to be dependent on whether the information (witness statements) was reasonably available from another source (the agency's Command Judge Advocate's Office) (U.S. Army Reserve Components Pers. and Admin. Ctr., 26 F.L.R.A. 19, 27 (1987)).
Agencies do not have to create data (that is, the data must exist). However, agencies may have to create documents from existing data, such as information in an electronic format. For example, the FLRA found the requested information was reasonably available even though the agency had to create documents to produce:
When an agency determines that the information requested is not reasonably available, the agency must communicate its anti-disclosure interest to the union at or near the time of the union's request (Pension Benefit Guar. Corp., 69 F.L.R.A. 323 (2016)).

Necessary Information (Particularized Need)

To be necessary under the particularized need standard, the information requested must relate to subjects within the scope of bargaining. The FLRA gives a broad reading to subjects that are within the scope of bargaining. Therefore, the duty to provide information to a union applies not only to information necessary for negotiating agreements but extends to data relevant to contract administration and the full range of the union's statutory representational responsibilities (Dep't of Health and Human Servs., 36 F.L.R.A. 943, 947 (1990)). The full range of union representational responsibilities include:
  • Contract administration.
  • Processing a grievance.
  • Representing an employee in response to proposed discipline.
  • Determining whether to file a grievance or unfair labor practice (ULP).
(Fed. Aviation Admin., 55 F.L.R.A. 254, 259-60 (1999); Dep't of Commerce, 30 F.L.R.A. 127, 141 (1987).)
When requesting information, the union must explain:
  • Why it needs the information.
  • How it will use the information.
  • How the use of the information relates to its statutory representational responsibilities.
The FLRA calls this the "particularized need standard". Specifically, the FLRA requires that:
  • The union's request for information be specific.
  • The union shows that the information is necessary to represent the bargaining unit (not merely that the information would be relevant or useful).
  • The union's request provides enough information for an agency decision.
(See Internal Revenue Serv., 50 F.L.R.A. 661, 669 (1995).)
To meet the particularized need standard, requires the union to demonstrate that the information is necessary to adequately represent its members, not just relevant or useful (Internal Revenue Serv., 50 F.L.R.A. 661, 670 (1995)). For example, the scope of the request may include:
  • The numbers of days, weeks, months, or years of information the union needs.
  • The types or groups of employees covered by the union's request.
(U.S. Dep't of Just., 52 F.L.R.A. 1323, 1330 (1997), U.S. Border Patrol, 52 F.L.R.A. 1231, 1239 (1997).)

Union's Responsibility to Represent Employees

Agencies have a duty to give the union information relevant to the union's statutory representational responsibilities (Dep't of Health and Human Servs., 36 F.L.R.A. 943, 947 (1990)). For example, a union may request information that is necessary for it to:
For additional information on a union request for information, see Standard Document, Union Request for Information Under the Federal Service Labor-Management Relations Statute: FLRA.

Limits to the "Necessary" Requirement

The union does not have to describe exactly how the agency violated a policy, procedure, law, or regulation when explaining its need for information (Health Care Financing Admin., 56 F.L.R.A. 156, 162 (2000)).
If the union shows that the information is necessary, the agency must provide the information, even if it disagrees with the union's theory or argument. For example, if a union files a grievance because it believes the agency did not appraise an employee correctly, an agency should not deny the union's request for a copy of the appraisal even if the agency believes the appraisal was proper (Internal Revenue Serv., 50 F.L.R.A. 661, 673 (1995)).

Agency Response to Union's Information Request

Timely Reply

The agency must respond to the union's information request in a timely manner even if the agency has a countervailing anti-disclosure interest. A timely reply is necessary for:
  • Full and proper discussion of subjects within the scope of bargaining.
  • Understanding subjects within the scope of bargaining.
  • Negotiating subjects within the scope of bargaining.
(SSA Baltimore, Md., 60 F.L.R.A. 674, 679 (2005).)
Examples of unreasonable delays include:
However, the FLRA did not find that the agency violated the FSLMRS when it supplied certain information after an approximate two-month delay because the agency:
  • Furnished most of the information requested by the union timely.
  • Made a diligent effort to find certain information not contained in current records.
(Bureau of Prisons, 11 F.L.R.A. 639, 641-42 (1993).)

Information That Does Not Exist

When a union requests information that does not exist, the agency must inform the union of that fact (5 U.S.C. § 7114(b)(4); SSA Baltimore, 60 F.L.R.A. 674, 679 (2005)). An agency's failure to inform the union that the requested information does not exist may result in the agency committing a ULP under the FSLMRS (specifically, 5 U.S.C. §7116(a)(1), (5), and (8); U.S. Naval Supply Ctr., 26 F.L.R.A. 324, 326-27 (1987)).

Disclosure Prohibited by Law

An agency need not provide the union with information prohibited from disclosure by law (5 U.S.C. § 7114(b)(4)). Agencies commonly refuse to provide information subject to the Privacy Act (see Privacy Act and Requests for Information). Although the FLRA has not elaborated much on the impact of other laws and regulations except the Privacy Act, it has:
  • Declined to interpret the reference to law in 5 U.S.C. § 7114(b)(4) to include all agency regulations.
  • Concluded it may encompass some regulations, including regulations having the force and effect of law, for example, OMB-Circular A-76.
(See Internal Revenue Serv. v. Fed. Lab. Rels. Auth., 110 S. Ct. 1623, 1629 (1990); U. S. Dep't of Treasury, 42 F.L.R.A. 377, 388 (1991); Dep't of Defense, 43 F.L.R.A. 476, 492-93 (1991).)
The FLRA discussed the effect of agency regulations on disclosure obligations in U.S. Dep't of Just., finding that the Special Investigators Supervisory (SIS) Manual was not a disclosure prohibited by law (57 F.L.R.A. 808 (2002)).

Agency Duty to Provide Information

The agency must furnish information to the exclusive representative by:
(5 U.S.C. § 7114(b)(4).)
If an agency is unclear about the union's stated reason for needing the requested information, the agency should ask the union to clarify the request. If the agency's request for clarification is reasonable and the union fails to respond, the union may fail to meet its burden of establishing a particularized need for the information (Health Care Financing Admin., 56 F.L.R.A. 156, 162 (2000)). The FLRA has held that management:
  • Should be able to reasonably ascertain why the union requested information is necessary.
  • May request clarification to ascertain the relevance of the requested material.
(U.S. Dep't of Treasury, 51 F.L.R.A. 1391, 1392-97 (1996).)

Destruction of Information

An agency should not destroy information requested by the union until resolution of any dispute concerning the information, because:
  • Destruction is inconsistent with the statutory policy of effective and efficient government because it makes the union's attempt to get the information through litigation pointless (see Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D. N.Y. 1991) (a litigant has a duty to retain documents that it knows, or reasonably should know, are relevant to pending or potential litigation or are subjects of a pending discovery request, and sanctions are appropriate if such documents are destroyed)).
  • Destruction of information interferes with the FLRA's ability to fully remedy a failure to furnish the union with necessary information under the FSLMRS.

Agency Countervailing Anti-Disclosure Interests

If an agency has concerns with providing the requested information, the agency must raise its anti-disclosure interest when the union requests the information (U.S. Dep't of Just., 60 F.L.R.A. 91, 93 (2004); U.S. Dep't of Army, 60 F.L.R.A. 413, 416 (2004)). The agency cannot raise its countervailing anti-disclosure interest for the first time at a ULP hearing (Fed. Aviation Admin., 55 F.L.R.A. 254, 260 (1999)).
If the agency denies a request for information under 5 U.S.C. § 7114(b)(4), the agency has the burden of asserting and establishing any countervailing anti-disclosure interests. The agency's burden:
  • Extends beyond simply saying "no.”
  • Is not satisfied by conclusory or bare assertions.
(Pension Benefit Guar. Corp., 69 F.L.R.A. 323 (2016).)
The agency must support any claimed countervailing anti-disclosure interests with evidence of those interests (United States Dep't of Just.., 60 F.L.R.A. 91, 93-94 (2004)). Examples of matters found by the FLRA to constitute countervailing anti-disclosure interests include:
  • Privacy.
  • Confidentiality.
  • Misuse of information by the requesting union.
(U.S. Dep't of Just. v. Fed Lab. Rels. Auth., 988 F.2d 1267, 1271 (D.C. Cir. 1993).)

Guidance, Advice, Counsel, or Training Provided for Management Officials or Supervisors Relating to Collective Bargaining

An agency is not required to give information specifically related to the collective bargaining process that contains management:
  • Guidance.
  • Advice.
  • Counsel.
  • Training.
(5 U.S.C. § 7114(b)(4)(C).)
Management information related to collective bargaining includes:
  • Actions that management will take when negotiating with the union.
  • Management's interpretation of provisions of the collective bargaining agreement (CBA).
  • Management's position on addressing grievances and ULPs.
  • Other labor-management interactions which impact on the union's status as the employees' exclusive bargaining representative.
(U.S. Dep't of Army, 60 F.L.R.A. 413, 416 (2004).)
This is a narrow exception to an agency's duty to provide information (National Labor Relations Board, 38 F.L.R.A. 506, 522-23 (1990), aff'd sub nom. Nat'l Lab. Rels. Board v. Fed. Lab. Rels. Auth., 952 F.2d 523 (D.C. Cir. 1992)). This exception does not include:

Privacy Act and Requests for Information

The release of information under 5 U.S.C. § 7114(b)(4) must be consistent with law, including the Privacy Act (U.S. Dep't of Transp., 50 F.L.R.A. 338 (1995)).The Privacy Act prohibits an agency from disclosing personal information about federal sector employees without their consent. It may prevent an agency from providing certain information to a union. The Privacy Act applies to information retrieved by using an individuals' name or other personal identifier contained:
  • In an agency record.
  • Within a system of records.
(5 U.S.C. § 552a (a)(4) and (5).)
For more information on the interaction between the Privacy Act and the FOIA, see Practice Note, Interaction Between FOIA and the Privacy Act.

Employee Consent

An agency can provide information to the union without violating the Privacy Act if the employee consents to the release. However, it is not enough that an employee asks for union representation; the employee must specifically consent to the release of their information (U.S. Dep't of Air Force, 51 F.L.R.A. 1144, 1150 (1996)).
Even if an employee has not consented to the release of information (agency investigative files), the agency may provide the information to the union if the Privacy Act does not bar its disclosure (United States Dep't of Just., 60 F.L.R.A. 91, 94 (2004)).
The Privacy Act prohibition of disclosure without employee consent does not apply if the information is disclosable under the Freedom of Information Act (FOIA) (Veterans Admin. Med. Ctr., 32 F.L.R.A. 133, 137-38 (1988)).
When applying the Privacy Act to a union's request for information, the FLRA relies on the FOIA, Exemption 6. FOIA, Exemption 6 prohibits disclosing "personal and medical files and similar files" which would constitute a "clearly unwarranted invasion of personal privacy." An agency can provide union requested information if the disclosure does not result in a clearly unwarranted invasion of personal privacy (Dep't of Just., 60 F.L.R.A. 91, 94 (2004)). When determining whether the release of information would result in a clearly unwarranted invasion of personal privacy, the FLRA uses the following framework:
  • An agency must demonstrate:
    • that the information sought is in a system of records within the meaning of the Privacy Act;
    • that disclosure would affect employee privacy interests; and
    • the nature and significance of those privacy interests.
    (Dep't of Just., 60 F.L.R.A. 91, 94-95 (2004); U.S. Dep't of Transp., 50 F.L.R.A. 338, 345 (1995).)
  • If the agency makes these showings, and the union still wants the information, the burden shifts to the union to:
    • identify a public interest recognized under the FOIA (for example, government wrongdoing); and
    • demonstrate how disclosure of the requested information will serve the public interest (public interest does not include collective bargaining under the FSLMRS, but rather information that would shed light on the agency's performance of its statutory duties that inform citizens of what the government is doing) (U.S. Dep't of Transp., 50 F.L.R.A. 338 (1995)).
    (U.S. Dep't of Air Force, 51 F.L.R.A. 1144, 1150 (1996).)
  • Once the parties make their respective showings under the Privacy Act, the FLRA will balance the privacy interests that may argue against disclosure with the public interests that favors disclosure. If:
    • the privacy interests outweigh the public interest, the FLRA will find the disclosure prohibited by the Privacy Act (disclosure would be a clearly unwarranted invasion of personal privacy under the FOIA); or
    • the public interest outweighs the privacy interests, the FLRA will find the disclosure is not barred by the Privacy Act (the agency could give the union the information without violating the Privacy Act).
    (U.S. Dep't of Transp., 50 F.L.R.A. 338 (1995).)

Information with Personal Identifiers

In 1994, after much litigation before the FLRA and lower courts, the Supreme Court held that agencies cannot release home addresses of bargaining unit members to the union based on Privacy Act considerations because disclosure of this information would not contribute significantly to public understanding of the operations or activities of the government (U.S. Dep't of Defense v. Fed. Lab. Rels. Auth., 114 S. Ct. 1006 (1994)).
Union requests for information under the FSLMRS often include information with personal identifiers, including, names, and other personal identifiers. Each case is decided on the facts specific to the case, for example, the FLRA found in:
  • U.S. Air Force Headquarters (AFRES), that although the public interest may be served by disclosing the applicant roster for a job vacancy, the public interest served by disclosure of personal identifiers (names and personal identifiers of applicants for a vacancy) is outweighed by the invasion of employees' privacy resulting in a clearly unwarranted invasion of personal privacy, within the meaning of the FOIA Exemption 6 (50 F.L.R.A. 455, 460-61 (1995)).
  • U.S. Dep't of Just., that the agency did not violate the Privacy Act by refusing to disclose requested reports containing personally identifying information that would result in a clearly unwarranted invasion of personal privacy under FOIA Exemption 6, including reports from the:
    • agency's Office of Internal Affairs;
    • Federal Bureau of Investigations; and
    • agency's special investigative supervisor.
(66 F.L.R.A. 669 (2012).)
The FLRA has consistently found the public interest served by the disclosure of sanitized information that does not identify individual employees by:
  • Name.
  • Other identifying information.
(Dep't of Transp., 51 F.L.R.A. 324 (1995).)
For example, the FLRA found the release of promotion materials with personal identifiers redacted did not violate the Privacy Act (Health Care Financing Admin., 56 F.L.R.A. 503, 506 (2000)).
When requested documents only concern one named employee, it is impossible to redact the documents to protect the identity of employee whose privacy is at stake (U.S. Dep't of Just., 51 F.L.R.A. 584, 590 (1995)). The FLRA has held that the fact that the employee's identity is known to the union does not lessen the employee's privacy interests (U.S. Dep't of Just., 51 F.L.R.A. 584, 589 (1995)). For example, the FLRA found in Pension Benefit Guar Corp., that the agency's refusal to release performance evaluations of only one employee was justified because it was not possible to redact the documents to protect the employee's identity (69 F.L.R.A. 323 (2016)).
For additional information on an agency response to union requested information, see Standard Document, Agency Response to Union Information Requests Under the Federal Service Labor-Management Relations Statute: FLRA.

Balancing the Parties' Competing Interests

When the parties disagree on whether, or to what extent, requested information is necessary, the FLRA requires:
  • The union to establish its reasons for requesting the information.
  • The agency to establish its reasons for denying the information request.
(U.S. Dep't of Transp., 65 F.L.R.A. 950, 955 (2011).)
The FLRA will find that an agency has unlawfully withheld information if the union establishes a particularized need for the information and either the agency:
  • Has not established a countervailing anti-disclosure interest.
  • Has established a countervailing anti-disclosure interest but its interest does not outweigh the union's demonstration of particularized need.
(Internal Revenue Serv., 50 F.L.R.A. at 670-71).

Importance of the Parties Communicating Effectively

When assessing the parties' rights and obligations with respect to information requests, the General Counsel (GC) relies on the FLRA's emphasis on the importance of effective communication to minimize areas of dispute. In Internal Revenue Serv., the FLRA concluded that applying a standard that requires the parties to articulate and exchange their respective interests in disclosing information serves important purposes, including:
  • Facilitating and encouraging the amicable settlement of disputes.
  • Effectuating the purposes and policies of the FSLMRS (5 U.S.C. § 7101(a)(1)(C)).
  • Enhancing the exchange of information resulting in both parties' abilities to effectively and timely discharge their collective bargaining responsibilities.
  • Permitting the parties to consider and, when appropriate:
    • accommodate their respective interests; and
    • attempt to reach agreement on the disclosure of information.
(50 F.L.R.A. at 670-71).
An agency has certain statutory responsibilities even when a union has not established a particularized need for the data sought. If the agency fails to perform any of these responsibilities the agency may commit an ULP under the FSLMRS. For more information on Agency ULPs, see Practice Note, Practice Note, Unfair Labor Practices Under the Federal Service Labor-Management Relations Statute (FSLMRS): Overview and Federal Agency Unfair Labor Practices (ULPs) Under the Federal Service Labor-Management Relations Statute (FSLMRS) Chart.
Even when a union has not shown a particularized need for the requested information, the agency is: