Part 6. Human Resources Management

Chapter 711. 1 Labor-Management Relations

Section 2. Processing Information Requests

6.711.2 Processing Information Requests

6.711.2.1 (03-25-2011)

Overview

  1. This sections provides instructions and guidance for the processing of requests for information filed by the exclusive representative of the bargaining unit. The exclusive representative of the bargaining unit has two separate entitlements to management information in addition to that which is provided (voluntary or routinely) pursuant to negotiated agreements. These entitlements derive from 5 USC 7114(b)(4), Article 45 of National Agreement II (NAII), and from the Freedom of Information Act (FOIA). This IRM will address processing and responding to those requests filed under the provisions of 5 USC 7114(b)(4). It is not intended to address every situation. The Labor/Employee Relations (LR/ER) specialist is responsible for staying up to date with the current case law for specific situations. NOTE: A distinction exists between 'information requests' and 'requests for information relied on' (which are not covered by 5 USC 7114(b)(4). See section 10(b) below.)

6.711.2.2 (03-25-2011)

References

  1. 5 USC 7114(b)(4)

  2. 5 USC 552a(b)

  3. Internal Revenue Code (IRC) Section 6103

  4. Article 45, National Agreement II

6.711.2.3 (03-25-2011)

Policy

  1. Information requests made under 5 USC 7114 will be processed by the servicing Labor Relation office. The LR/ER staff will evaluate these requests against the standard set by the Federal Labor Relations Authority (FLRA). Information requested by the exclusive representative will be released when:

    • The exclusive representative has met its burden.

    • The release of the information is not otherwise precluded by law.

    • Any agency interest in the non-disclosure of the information does not outweigh the exclusive representative's interest in disclosure.

  2. The Labor Relations staff will coordinate release of the information with the servicing Disclosure Office, the Treasury Inspector General for Tax Administration (TIGTA), the Equity, Diversity, and Inclusion Office (EDI), and other line officials as appropriate.

6.711.2.4 (03-25-2011)

Authorities

  1. Supervisory Labor Relations personnel have the authority to respond to requests for information filed under 5 USC 7114(b)(4). This authority may not be redelegated below the supervisory level.

  2. The authority to disclose tax returns and/or tax return information under certain provisions of the IRC, such as IRC 6102(I)(4)(A), is delegated to supervisory Labor Relations personnel. [See Delegation Order HCO-21.]

6.711.2.5 (03-25-2011)

Basis

  1. Under 5 USC 7114(b)(4), the exclusive representative is entitled to receive from management, to the extent not prohibited by law, data "which is normally maintained by the agency in the regular course of business; which is reasonable available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors related to collective bargaining."

  2. For the Internal Revenue Service, the exclusive representative of the bargaining unit is the National Treasury Employees Union (NTEU). Only NTEU may receive information under the provisions of 5 USC 7114(b)(4) and only for matters within the scope of collective bargaining. Non-NTEU representatives may not receive information under 5 USC 7114(b)(4). This includes employees or former employees acting on their own behalf in an administrative matter.

  3. The FLRA has determined that all aspects of a union's representational responsibilities are within the scope of collective bargaining, including the representation of grievants [DOL, 39 FLRA 531]. However, when NTEU represents a bargaining unit employee in a forum other than the negotiated procedure, the representative's right to information are limited to those of the forum selected. [Library of Congress and AFSCME Local 2910, 19 FLRA 267, 270 (1985)].

6.711.2.6 (03-25-2011)

Communication

  1. The FLRA expects an agency and a union to have dynamic communications regarding the release of information. To that end, a union is expected to articulate its interest in the release of information and to respond to requests for clarification. The agency is expected to respond to requests for information in a timely manner. If the IRS believes that the request is too vague, the IRS must identify what areas of the request still require clarification. The IRS must also articulate its reasons for not releasing information. Those reasons must be more than assertions or conclusive statements.

6.711.2.7 (03-25-2011)

Receipt of Information Requests

  1. Filing of Information Requests: All requests for information under 5 USC 7114 should be filed with the supervisor of the appropriate servicing Labor Relations office. Information requests received in the wrong office or by management must be forwarded to the appropriate Labor Relations office. NTEU must be notified that the information request was not filed with the correct office and that the request has been forwarded to the appropriate office for processing.

  2. With Grievance: Occasionally, NTEU will request information with the same document that is used to file the grievance. Management should consult with their servicing Labor Relations specialist upon receiving a request of this nature. An information request filed in this manner must contain the same elements as one filed directly with Labor Relations. If it does, the servicing Labor Relations specialist will be responsible for responding to the request. If the request is incomplete, NTEU should be informed and advised to file a proper information request with the appropriate Labor Relations office. Management may provide that response to NTEU, but should consult with their servicing Labor Relations specialist.

    If the request identifies information/documents that NTEU and/or the employee has a right to receive pursuant to the terms of the negotiated agreement, management must release that information, even if the request does not contain all the elements of a request for information under 5 USC 7114. NTEU should be informed that any requested information that is outside the provisions of the negotiated agreement must be requested through the appropriate servicing Labor Relations office by filing a request for information under the provisions of 5 USC 7114.

  3. Acknowledgment: The National Agreement required that NTEU be informed within ten (10) work days whether information requested under 5 USC 7114 will be provided. Often it is not possible to provide a complete response to the request within that timeframe. In that case, an acknowledgment that the request has been received and is being worked must be provided to NTEU. The acknowledgment must be sent to NTEU within ten (10) work days of receipt of the information request in the Labor Relations office.

  4. Case Control: The servicing Labor Relations office is responsible for establishing an information request case on ALERTS as discussed below. The information request will be separate case; however, if there is a current grievance or open conduct issue and NTEU is requesting information based on one of these cases, the information request must be posted to the case in order to be cross-referenced.

6.711.2.8 (03-25-2011)

Analyzing/Processing the Request

  1. What is being requested?: The request must articulate with specificity what information NTEU is requesting. The request cannot be overly broad or vague. If the request is not clear, the Labor Relations office will contact NTEU and request clarification. If NTEU refuses to clarify the request, it should be denied. It is not appropriate for the Labor Relations office to attempt to make its own determination regarding what information is being requested. However, Labor Relations should keep in mind that NTEU may not know the specific contents, or title, of the documents it is requesting. It is required to give sufficient detail to allow the specialist to identify the specific documents that are being requested.

  2. Particularized need:

    • Why? NTEU must explain with specificity why the information is needed. The explanation must include how NTEU intends to use the information and the connection between those uses and NTEU's representational responsibilities under the statute. If the request is not clear, or is not specific regarding why the information is needed, the Labor Relations should contact NTEU to get clarification. If NTEU does not clarify why the information is needed, the request should be denied. The LR/ER specialist should not make a presumption regarding why NTEU wants the information. NTEU is not required to be so specific as to reveal its strategies or the identities of employees who wish to remain anonymous.

    • Relevance: It is explicitly stated in the law and clearly addressed through interpretive decisions of the FLRA that the information requested by a union must be relevant to an existing or potential grievance or other matter within the scope of collective bargaining. If the information is not relevant to the matter at issue, the request will be denied. Relevance must be determined in light of the nature and circumstances of each case.

    • More information needed: If NTEU's request is not specific enough to permit the LR/ER specialist to make a reasoned judgement as to whether information must be released, the LR/ER specialist must inform NTEU and request clarification. The LR/ER specialist will request that NTEU provide specific answers to his questions. The requests for clarification should be reasonable and genuine, and should forward this request to NTEU within 10 work days of the receipt of the information request. The request for additional information/clarification will contain a reasonable timeframe for NTEU to respond.

  3. Gathering the information: Once it has been determined what information the union is requesting, the servicing Labor Relations office will contact the appropriate area to secure the information. Labor Relations will be responsible for ensuring that any information released to NTEU is appropriately sanitized.

  4. Information that does not exist: The IRS is not required to provide information that does not exist. However, it is required to respond and inform NTEU that the requested information does not exist.

  5. Merit/Grievability/Arbitrability: The IRS' opinion as to the merit of the issue NTEU is pursuing has no bearing on whether or not information is releasable, nor is NTEU required to use any or all of the information provided. In addition, questions of grievability and arbitrability are for an arbitrator to resolve. Therefore, the IRS may not refuse to supply information simply because it considers an issue non-grievable or a grievance non-arbitrable. However, if the underlying matter is not cognizable under law (e.g., the filing of a grievance concerning the termination of a probationary employee) then the information need not be provided.

  6. Is it necessary?: A key element in the evaluation of an information request is determining whether or not the information is necessary. The FLRA has determined that, in order to satisfy the 'necessary' requirements of the statute, NTEU must establish that the requested information is required in order to adequately represent its members. It is not enough for NTEU to state that the information requested is or would be relevant or useful. In addition, bare assertions or conclusive statements that the information is or would be relevant or useful are not sufficient (e.g., 'needed to represent employees').

  7. Is it normally maintained?: Material that is readily available to the IRS is considered to be normally maintained within the meaning of the statute. The IRS is not required to release information that is not maintained during the regular course of business. If the requested information is not normally maintained by the IRS, that must be made clear in the response. The response must also include specific reasons as to why the information is not normally maintained. For example, a request for information outside of its normal retention schedule would be denied because the information has already been destroyed. However, if the information has not yet been destroyed, it may have to be released even though it is outside the retention period. Destroying information after it has been requested under the provisions of 5 USC 7114 may be considered an unfair labor practice (ULP) even if the information should have already been destroyed.

  8. Is it reasonable available?: The standard for whether the information is reasonably available is not well defined. The IRS has the burden of establishing that information is not reasonably available because it would be unduly burdensome to produce. If the IRS denies a request for information because it is not reasonable available, that assertion must be articulated in the response. The response must also include an explanation as to why the IRS believes the information is not reasonable available. The IRS must be prepared to present evidence on burdensomeness. General Legal Services (GLS) should be consulted before a response is issued asserting that the information requested by the union is not reasonably available.

  9. Countervailing interest: The IRS may have strong anti-disclosure interests in the requested information. These interests are referred to as countervailing interests. If the IRS's countervailing interest outweighs NTEU's interest in the disclosure of the information, then the request should be denied even though NTEU has met its burden and the release of the information is not prohibited by law or regulation. The IRS must articulate any countervailing anti-disclosure interests in its response to the information request. If countervailing interests are not articulated in the response, the IRS is precluded from asserting them in front of a third party. Certain specific countervailing interests are discussed in this IRM. The examples given are not intended to be an all inclusive list. Labor Relations should consult with GLS as appropriate when asserting countervailing interests.

  10. Personal identifiers: When NTEU has requested information that includes personal identifiers, it must establish two separate particularized needs. NTEU must establish a particularized need for the information generally and a separate particularized need for personal identifiers. If NTEU has established a particularized need for the information, but not for the personal identifiers, the personal identifiers must be removed prior to releasing the information. The response should indicate that the personal identifiers have been removed. the response must also inform NTEU that if the unsanitized information is still needed, a new request must be submitted. The new request must establish a particularized need for the information in unsanitized format.

  11. Prohibited by law: 5 USC 7114(b)(4) authorizes the release of information "to the extent not prohibited by law." The FLRA has determined that this includes the US Code and rules and regulations having the "Force and effect of law." If the release of the information is prohibited by law, the response must also specifically explain why release is prohibited.

    • Privacy Act: The Privacy Act of 1974 applies to those personnel records that are maintained by a personal identifier and contain personal information. Most personnel records are subject to the Privacy Act as they are maintained by employee name or social security number. The Privacy Act limits access to a record without the prior written consent of the individual to whom the record pertains. It also lists conditions of disclosure where a record may be disclosed without prior written consent of the individual. Those conditions are explained further in the Privacy Action section of IRM 11.3.
      In order to receive information covered by the Privacy Act, NTEU must establish a public interest in the information within the meaning of FOIA and must explain how that public interest will be served by the disclosure; or NTEU must show that the disclosure of the information is covered by the routine use provision of the Act.
      In order to assert that the information is protected from release by the Privacy Act, the IRS must show that the information requested is maintained in a system or records and disclosure would implicate employee privacy interests. The response must also describe the nature and significance of those privacy interests.
      When both a public interest in the disclosure of the information within the meaning of FOIA and employee privacy interests have been established, a balancing of those interests must be done. If the employee privacy interests have a greater weight, then disclosure of the information would constitute a clearly unwarranted invasion of personal privacy under FOIA and the release of the information would be barred by the Privacy Act, unless disclosure was permitted under another exception to the Privacy Act. If the public interest in the information is greater than the implicated privacy interests then disclosure is required by FOIA. Since FOIA is an exception to the Privacy Act, disclosure of the information would not be prohibited by the Privacy Act.
      The IRS cannot waive the statutory prohibition against disclosing information prohibited by law. However, failure to articulate reliance on the Privacy Act as a bar to the release of information in the response may be considered as bargaining in bad faith and may result in a ULP.
      The Labor Relations office is responsible for coordinating with the appropriate Disclosure Office to address Privacy Act considerations. When releasing information covered by the Privacy Act, the response will inform the recipient of their responsibilities under the Act.
      The Privacy Act requires an accounting of any disclosure of non-tax information made pursuant to subsection (b) of the Act. Generally, disclosures to the exclusive representative of non-tax information covered by the Privacy Act are made under subsection (b) of the Act. The Labor Relations office is responsible for completing a Form 5482, Record of Disclosure, for each disclosure made pursuant to subsection (b) of the Act. [See IRM 11.3.19 for instructions regarding the proper completion and disposition of Form 5482.] In addition, such disclosures must be documented using the appropriate event code in ALERTS.

    • Medical Information: There are significant employee privacy interests inherent in medical information. In addition, there are numerous laws and regulations governing its maintenance and use. Before releasing medical information pursuant to a request under 5 USC 7114, Labor Relations should consult with the appropriate Disclosure office and/or GLS.
      If the release of medical information is prohibited due to a particular law or regulation, that law or regulation must be cited in the response to the information request.
      The disclosure of medical information may trigger the Privacy Act accounting requirements discussed above. Labor Relations is responsible for properly accounting for the disclosure of medical information.

    • IRC 6103: IRC 6103 addresses the protection of tax returns and tax return information. When IRS records are also protected by the provisions of IRC 6103, the requirements of that section take precedence over the generalized provisions of the Privacy Act. Disclosure of information protected by IRC 6102 is addressed in more detail below. Additional information can also be found in IRM 11.3.
      The definitions for return and return information are intentionally broad in order to provide the maximum amount of protection for the taxpayer. Both the Supreme Court and the FLRA have ruled that the removal of personal identifiers does not deprive this information of protection under IRC 6103. NTEU's statutory right under 5 USC 7114 does not supersede IRC 6103.
      IRC 6103 defines return and return information as follows:
      a. Return: Any tax or return information, declaration of estimated tax, or claim for refund required by or provided for or permitted under the provisions of this title which is filed with the Secretary by, on behalf of, or with respect to any person, any amendment, or supplement thereto including supporting schedules, attachments, or lists which are supplemental to, or part of, the return filed.
      b. Return Information: A taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, deficiencies, over-assessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigations or processing, or any other data received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, or liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition or offense.
      Any part of any written determination or any background file document relating to such written determination (as such terms are defined in section 6110(b)) which is not open to public inspection under section 6110.

    • IRC 6103(c): Often the information requested consists solely of the personal information of the subject of the personnel matter. For example, the materials relied on in a disciplinary action involving the late payment of taxes will usually involve only the personal information of the subject of the action. In those instances, the subject may authorize release of that information to anyone the subject designates. Such disclosures are made pursuant to the provisions of IRC 6103(c). In order to release tax returns and/or tax return information under this provision, the subject must submit a written request. The written request must contain the following: 1. The subject's identity information (name, address, SSN); 2. The identity of the person to whom disclosure is to be made; 3. The type of return or return information to be disclosed; 4, The specific tax period(s) covered by the consent; and 5. The subject's signature.
      The written request may be in any format as long as it contains the information above. However, form 8821, Tax Information Authorization, has been designated to meet these requirements. More information regarding the release of information protected by IRC 6103 may be found in IRM 11..3 and on the Government Liaison and Disclosure site on the Intranet.

  12. Statutory Exemption: The statute exempts from release information that constitutes guidance, advice, counsel, or training provided to management officials or supervisors relating to collective bargaining. Requests for this type of information will be denied. The specific reason for the denial must be articulated in the response.

  13. Crediting Plans: The IRS is asserting a countervailing interest regarding the release of crediting plans. The LR/ER specialist should be aware that the case law on this topic is evolving and most recent cases are going toward release of information unless releasing would give candidates an unfair advantage or compromise the utility of its selection process. LR/ER specialists are encouraged to consult with GLS prior to responding to a request for the release of crediting plans.

  14. External Competitive Hiring Informations: The IRS conducts external competitive hiring through Delegated Examining Units under authority granted to the IRS in an agreement with the Office of Personnel Management (OPM). Improper or unauthorized release of this information could jeopardize our delegated examining authority. However, the fact that this authority has been delegated to the IRS by OPM is not sufficient to bar the release of information related to external competitive hiring. [HHS, Health Care Financing Administration and AFGE, Local 1923, 56 FLRA No. 19, March 17, 2000] Therefore, the specialist must exercise caution when responding to requests for this information and should coordinate with Employment, Talent, and Security.
    More specific information regarding this topic can be found in HCO Policy Number 88, on the HCO Intranet site, and in IRMs 6.331 and 6.335.

  15. Other Matters: In addition to information that NTEU may receive pursuant to 5 USC 7114(b)(4), NTEU is routinely provided certain information pursuant to the terms of the negotiated agreement. Requests for information that is routinely provided to NTEU will normally be denied. In the response, the IRS will advise NTEU that the information has already been provided pursuant to the terms of the negotiated agreement. If NTEU insists that the information be provided in connection with the information request, the request must be evaluated against the standard set by the FLRA.
    In addition to the information routinely provided, pursuant to the terms of the negotiated agreement, NTEU may receive certain additional information upon request. If NTEU requests information that it can obtain under the terms of the negotiated agreement, it will be advised to follow the provisions of the agreement. If NTEU insists that Labor Relations respond to the information request, the request must be evaluated against the standard set by the FLRA.
    Under the negotiated agreement, NTEU is provided with copies of all disciplinary and/or adverse action letters. The negotiated agreement also states that information provided to NTEU pursuant to Articles 38 and 39 need not be provided again. Requests for information that has already been provided to NTEU pursuant to Articles 38 and 39 will be denied.

  16. Non-Bargaining Unit (NBU) Information: Nothing in the statute limits NTEU's right to information under 5 USC 7114 to bargaining unit employees. NTEU may receive information pertaining to NBU employees when a particularized need has been established and the release of that information is not otherwise prohibited. However, there is no obligation to provide information in a matter that does not impact bargaining unit employees.

6.711.2.9 (03-25-2011)

Responding to Information Requests

  1. After the Labor Relations staff has evaluated the information request and determined whether any information will be released, a response will be prepared. The IRS must respond to a request for information even if the requested information does not exist. Failure to respond constitutes an Unfair Labor Practice (ULP).

  2. When responding to a request for information the following must be provided:

    • Who: Supervisory Labor Relations personnel have the responsibility and authority to respond to requests for information. They may not redelegate this authority any lower.

    • How: The LR specialist will prepare the response for the supervisor's signature.

    • Basic elements: The response will identify when the information request was received, what information was requested, and whether any information is being provided. If any part of the information request is denied, the response will identify the reasons for the denial.

    • Information being released: If Labor Relations has determined that the information will be released, the response will identify this information. If information covered by IRC 6103 is released, the response will also include language reminding NTEU of its responsibility to protect the information. The specialist will also account for the disclosure of tax information as described above.

    • Information not being released: If Labor Relations has determined that some or all of the information will not be released, the response will also articulate each and every reason for denial of release of the information, including any countervailing interest that the IRS is asserting. If additional information is needed in order to make a determination regarding release, the response will specifically identify the additional information being sought.

6.711.2.10 (03-25-2011)

Other Requests

  1. FOIA: Labor Relations offices often receive requests for information under 5 USC 7114 that also request information under FOIA. When such requests are received, the Labor Relations office should evaluate the request under 5 USC 7114 and issue a response. The response should clearly indicate that the request was evaluated under 5 USC 7114 and should refer the requestor to the appropriate Disclosure Office for guidance on how to request information under FOIA. For more information on FOIA please refer to IRM 11.3.

  2. Requests for Material Relied On: The employee and/or representative are entitled to receive the material management relied on to propose a disciplinary or adverse action. These entitlements are detailed in Articles 38, 39, and 40 of the negotiated agreement. Requests for material relied on are not information requests pursuant to 5 USC 7114. Unlike information requests, requests for material relied on are not separate cases in ALERTS, they are part of the underlying conduct file.
    If NTEU requests more information than the material relied on, the request must be carefully evaluated. Any information that exceeds the material relied on must be requested under 5 USC 7114 and NTEU must establish a particularized need for the information.

  3. EEO: When Labor Relations offices receive requests from NTEU for EEO data under Article 45 of NAII they will contact the EDI office for a point of contact (POC) from which to secure the information in order to comply with the information request. The EDI POC will also proved Labor Relations with a template with links to give NTEU access to data as required in Article 45, Section 3 of NAII.

6.711.2.11 (03-25-2011)

ALERTS Documentation

  1. Type of Case: All requests for information must be documented in ALERTS. Requests filed under 5 USC 7114 or Article 45 of NAII are to be established as separate cases in ALERTS. The ALERTS case type for a request under 5 USC 7114 is "R."

  2. Cross-Reference: A request for information under 5 USC 7114 may not be associated with an existing grievance, negotiation, or other case in ALERTS. However, if it is, then the "R" case must be cross-referenced with the associated case. For example, if NTEU requests information under 5 USC 7114 for upcoming local negotiations, the information request and negotiations case are separate cases in ALERTS, but each should be cross-referenced to the other. This is typically accomplished by "posting" the information request case from the associated case in ALERTS.

  3. Received date: The received date for an information request is the date the request is received in the servicing Labor Relations office.

  4. Facts and Analysis: At a minimum the Facts and Analysis field in ALERTS will contain the following information:

    1. What information was requested.

    2. NTEU's stated particularized need.

    3. What (if any) information was released to NTEU.

    4. What information was denied and why it was denied.

  5. Events codes: Labor Relations must document case activity in the Event Code screen in ALERTS. In addition, release of information covered by either the Privacy Act or IRC 6103 must be documented appropriately in ALERTS<

  6. Closing: The closing date for the ALERTS case is the date the response is issued to NTEU. The Labor Relations office is responsible for ensuring that the case is timely closed in ALERTS.

6.711.2.12 (03-25-2011)

Case Assembly

  1. Each request for information under 5 USC 7114 will be maintained in its own folder. Case materials, including communications relevant to the determination to release information will be maintained on the right side of the folder in reverse chronological order. At a minimum, the following information will be tabbed:

    • The Information Request;

    • The acknowledgement;

    • The information released to NTEU (sanitized and unsanitized);

    • Privacy Act and/or IRC 6103 disclosure forms;

    • The information that was not released to NTEU; and

    • The response to the information request, including proof of delivery. Miscellaneous communications and case history notations will be maintained on the left side of the case folder.