American Federation of Government Employees Local 3584, representing a unit of correctional workers, made an information request to the Department of Justice’s Office of Internal Affairs on behalf of its members at FCI Dublin, a low-security federal prison in California. The Union believed that the Employer was either not referring, or not timely referring, reports of non-bargaining unit staff misconduct reported by the Union. The Union was moving forward with a grievance arbitration on the matter and needed the documents in order to make its case. The grievance alleged that the Employer’s actions violated the standards of employee conduct policy and led to safety concerns at FCI Dublin, thereby violating the master agreement’s requirement that the Employer lower safety hazards to the lowest possible level.
The Union’s information request provided a detailed account of the information it needed, why it needed the information and how it would specifically use the information at arbitration. Recognizing that the forms would include privacy-protected information, as noted, the Union specified that the forms should be sanitized (removing private information). In its request the Union invited the Agency to further redact the forms as it believed necessary to address its privacy-related concerns and offered to discuss clarification of the request or the format or means of furnishing the information.
The Employer’s response was to delay and, eventually, deny the Union’s request, providing “only a cryptic explanation that did not truly explain the Employer’s reasons for not providing the information.” The request had been made on March 27, 2022; the response did not come until April 26, providing documents that the Union did not request, and excluding ones that had been requested. The Union responded immediately, explaining that the Employer’s proffered reasoning for failure to turn over the documents as requested was incorrect, and that an unfair labor practice charge was being prepared. The ULP was filed shortly after.
An ALJ of the Federal Labor Relations Authority upheld the charge. ALJ Leisha Self explained that the FLRA “will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest, but it does not outweigh the union’s demonstration of particularized need.”
The ALJ found that the Union articulated and established a particularized need for the forms regarding non-bargaining-unit staff misconduct, listing numerous credible reasons as to why such documents would be relevant to the upcoming arbitration. “The Union connected its need for all of the forms to the Union’s reason for the information and how it would use the information. Specifically, the Union explained that it needed to make comparisons between the BP-A0715 forms for bargaining-unit staff and those for non-bargaining-unit staff to establish unfair and inequitable treatment, as well as failure to refer or timely refer.”
Meanwhile, the Employer failed to establish a countervailing interest weighty enough to defeat the Union’s demonstration of particularized need. “In its response at or near the time of the request, the Employer gave only two cryptic reasons for denying the request. First, it claimed that the Union failed ‘to identify how the information would be used as it relates to the Union’s representational responsibilities.’ Second, it claimed that prior caselaw establishes that the Employer only needed to provide the number of referrals broken down by bargaining unit status.”
The first contention had already been disposed of with ease, and so the ALJ focused on the latter claim. Pursuant to the Privacy Act, an agency is not required to disclose information if the disclosure would be a “clearly unwarranted invasion of personal privacy.” Here, the Employer’s burden was to show 1) that the information requested is contained in a “system of records” under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests.
“What is not apparent is the second element of the Employer’s burden, that is, that disclosure of the forms would implicate employee privacy interests. This is so because the Union requested the forms sanitized of personal identifiers, including the subject’s name, the victim’s name, the victim’s title, the summary of the incident, the action taken locally, and the source of the allegation. Therefore, presumably the privacy interests of the subject and the victim would not be implicated.”
The Employer could not carry its burden and was ordered to furnish the requested information to the Union.
Dep’t of Just. Fed. Bureau of Prisons Fed. Corr. Inst. Dublin, California & Am. Fed’n of Gov’t Emps. Local 3584, 2024 WL 4527138 (F.L.R.A. 2024).