A PLEASANT PARTICULARIZED NEED PRONOUNCEMENT: Test Yourself
A nice thing happened last week. The Authority issued an easier to understand than normal, unanimous decision on particularized need. (AFGE, 68 FLRA 492 (2015)) See if you can predict what the ruling was from the facts below. It is also an important case because it addressed whether a union can get information merely to examine the validity of a management decision that it had every right to make without bargaining over the substance of the decision. The union had not yet filed a grievance or demanded bargaining.
There were two security breaches at as Federal Prison. While the warden imposed a lockdown after the first, she did not after the second despite the similarities in the threat. The union was not happy and began an investigation by asking the agency for the following information:
- Item 1: All government‑wide rules, regulations, orders, policies, or procedures that were used in making this decision. . . .
- Item 2: All documents used in substantiating the decision to return the institution to normal operations even though there was a lack of intelligence information. . . .
- Item 3: Copies of any emails or correspondence by any management official that was used regarding the above matters. . . .
- Item 4: The procedures used to obtain the evidence.
It soon modified that request by deleting the request for the security footage and modifying the other items. For example, Item 1 added a specific reference to contingency plans, program statements, and past incidents; and Items 2 and 3 included a request that the Agency provide the applicable law, policy, or regulations that justified its refusal to provide the information that the Union requested on August 9. Item 4 was essentially new, requesting “[c]opies of any investigative reports relating to the incidents in question as well as a complete accounting of any and all methods used and/or employed by [management to obtain evidence that was used to support [its] decisions regarding the incidents.
The Union explained that it needed the first two items to “[d]etermine if [m]anagement’s actions were appropriate within the context of [its] requirement to lower the inherent risks of the correctional environment in accordance with the [governing master labor agreement (master agreement)] . . . [and] if [m]anagement followed its own policies and guidelines.” The Union also stated that it needed the information sought by the third item to “[d]etermine if [m]anagement, during the course of the electronic/written discussions regarding the incidents in question, ever factored in [its] responsibility to lower the inherent risk of the correctional environment in accordance with the [m]aster [a]greement.” And, with respect to the fourth item, the Union stated that it needed the information to “[d]etermine if [m]anagement followed its own policies and guidelines during the initial investigation(s) that were/was then used to justify [its] actions regarding the incidents.” The Union stated that it would use the information to “[d]etermine if a representational course of action on behalf of all bargaining unit employees [wa]s justified in this matter . . . [and f]ulfill the Union’s representational responsibilities.”
On October 6, the assistant warden advised the Union representative that the Agency would not provide the information requested on September 14 because the Agency could not release any information that it would need to prosecute the inmate. But the assistant warden did not explain how releasing the information would compromise the prosecution of the inmate.
On October 12, the assistant warden sent the Union representative an email that summarized their October 6 conversation. The email stated that the Agency had made the security footage available to the Union to view, but repeated that it could not release the footage because of the pending prosecution of the inmate. The email also asserted that the Union had “not identified [a] particularized need . . . [that] relate[d] to the [U]nion’s representational duties.”
Did the union satisfying the FLRA particularized need test for the information?
The Authority began by reminding readers that to demonstrate that requested information is “necessary” within the meaning of § 7114(b)(4), a union must establish a “particularized need” by articulating, with specificity, why it needs the requested information, including how the union will use the information, and how the union’s use of the information relates to its representational responsibilities under the Statute. The union’s explanation must be more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the Statute requires the agency to furnish the information.
The Authority has found that a union establishes a particularized need where the union states that it needs information: (1) to assess whether to file a grievance; (2) in connection with a pending grievance; (3) to determine how to support and pursue a grievance; or (4) to assess whether to arbitrate or settle a pending grievance. The Authority has emphasized that such information is necessary because arbitration can function properly only when the grievance procedures leading to it are able to sift out unmeritorious grievances.
However, “a union’s request for information ‘need not be so specific’ as ‘to reveal its strategies.’” Thus, the Authority has rejected claims that a union failed to “articulate its need with requisite specificity” where the union’s information request referenced a specific agency action and specified that the union needed the information to assess: (1) whether the agency violated established policies and (2) whether to file a grievance; even though the union did not explain exactly how the information would enable it to determine whether to file a grievance. In addition, the Authority has held that a union’s citation to specific collective‑bargaining‑agreement provisions served to notify the agency that the requested information was necessary for the union to administer and enforce the agreement.
Here, the Union referenced the Agency’s decision to place the facility on a modified, rather than full, lockdown; explained that it would use the information to evaluate the appropriateness of that decision; and referred to the Agency’s responsibility under the master agreement to lower the inherent risks of the correctional environment.
FLRA then turned to the agency’s defense by noting that an agency denying a request for information under § 7114(b)(4) must assert and establish any countervailing anti‑disclosure interests. “Like a union, an agency may not satisfy its burden by making conclusory or bare assertions; its burden extends beyond simply saying ‘no.’” An agency must raise its anti‑disclosure interests “at or near the time it denies the union’s request.” It concluded that the agency’s explanation was insufficient to establish a countervailing anti‑disclosure interest.
The Agency did not explain how releasing the information would interfere with its plans to prosecute the inmate or identify what information would jeopardize those plans; nor did the Agency suggest when, if ever, it would be able to provide the requested information. Thus, the Agency’s explanation did not aid the Union in identifying “alternative forms or means of disclosure that may satisfy both [the U]nion’s information need is and [the A]gency’s interests.” Even assuming that the claimed countervailing interest was raised in response to the Union’s request, it was not sufficient to outweigh the Union’s demonstration of a particularized need for the information.
Finally, the Agency argued that FOIA Exemption 7(e) permitted it to withhold the interests “at or near the time it denies the union’s request.” The mere fact that an anti‑disclosure interest is also reflected as an exemption from mandatory disclosure under FOIA does not relieve an agency of this burden. Here, the Judge found, and the record reflects, that the Agency did not raise the security interests protected by Exemption 7(e) when it denied the Union’s information request.
(Virtually all the text of this article was taken directly from the FLRA decision given how clearly it was written.)