Federal Labor Relations Authority proposes new privacy rules

The Federal Labor Relations Authority (FLRA) has proposed several revisions to rules concerning its duties under the Privacy Act, including duties assigned to the office of the solicitor. For more on what is going on and what you need to know, Federal Drive with Tom Temin talked with Thomas Tso, FLRA’s Solicitor.

Interview Transcript: 

Tom Temin And it looks like this is more than just a slight administrative cleanup in these proposed rules. What’s exactly going on?   

Thomas Tso So it’s significant. It sets up three areas for the FLRA. One is to recognize the growing independence of the IG’s office. So we want to create in the regulations a parallel system for IG records and inspector general records. So the inspector general could decide instead of the authority deciding the propriety of releasing certain records. I think the second point is due to shrinking budgets and resources and just the trend of centralizing services, we wanted to focus all the requests across the nation with the solicitor’s office. It was important not to have sort of each office sending out perhaps inconsistent responses or having inconsistent policies. And the third point is just the increasing responsibilities of the senior agency official for privacy, which is also the solicitor for the FLRA. And so we want to make sure that for all compliance purposes, for compliance, the senior agency official for privacy has a central role in administering the Privacy Act process.   

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Tom Temin And what types of records would typically be concerned with here? That is to say, hearings or decisions that the authority is making that might have personally identifiable information in it. Or tell us about the types of records you deal with.   

Thomas Tso Sure. So a lot of the records that we deal with, our internal records, internal HR. And only FLRA employees have records in the system. But most importantly, for the broader audience, we do apply the privacy act to the grievance procedure system. So situations when outside current and former federal employees are filing a grievance, going through a process, we do have an obligation and we take it very seriously to preserve their privacy and we act as a quasi judicial body. And it’s important for us that people can trust us, that we can maintain their private records in our systems.   

Tom Temin Might be useful to review what the FLRA does with respect to grievance because you’ve got the Merit Systems Protection Board for some branch of this and you’ve got the Office of Special Counsel for another. And sometimes people get lost in the subtleties of difference between the types of things they handle.   

Thomas Tso We manage labor relations, so obligations that occur under the collective bargaining and in these agreements of employees. Or if the union feels an agency has violated some obligation that were collectively bargained. That’s what the FLRA system sort of kicks in. In contrast to the other systems which are more independent sort of statutory systems, right?   

Tom Temin So if there was an EEO type of related claim or a unfair personnel practice outside of what’s in those labor provisions, that would not go to the FLRA. Right. In other words, grievances with respect to the clauses in that particular union agreement.   

Thomas Tso There is some overlap in the sense that there are unfair labor practices that may turn on some discrimination or issues that relate to unfair labor practices. But yes, quite correct that there are sort of demarcation of where they should go to if they want to take a EEO claim or if they want to have MSPB claim for unfair personnel practices.   

Tom Temin We’re speaking with Thomas Tso. He is solicitor of the Federal Labor Relations Authority. And this rule proposal, which would then consolidate IG records under the inspector general and all the other records under you as solicitor and also the Chief privacy Officer, this in some ways a response to an executive order going back some years.   

Thomas Tso Yes, it’s in response to a 2016 executive order and subsequent OMB’s guidance that established the senior agency officer for privacy across the federal government. But it created a lot of flexibility on how it should be applied to different agencies. And so one of the things that we were looking at is how do we fit the SAOP role within a smaller agency like the FLRA.   

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Tom Temin Right, and the seeking of records, is it mostly from FOIA requests or do you get other types of records calls?   

Thomas Tso So mostly from FOIA. And this is one of the other reasons we want to revise the regulations. We also had to revise the FOIA regulations to update that. So mostly working tandem and we use similar systems to process all of these records. So oftentimes people outside who might want to look at their own grievance information was included in their grievance records. They would have a privacy and a FOIA request at the same time.   

Tom Temin So in many ways, you’re the top FOIA officer now, as well as the privacy officer.   

Thomas Tso This is why the centralization of roles once SAOP became very important in a federal government and once we took on sort of the chief FOIA Officer role within FLRA it would make sense to then start centralizing the regulations with the office of the Solicitor and becoming one conduit where people can ask questions.   

Tom Temin Now, are there any changes in the criteria for what constitutes privacy related material that cannot be released?   

Thomas Tso We have tried to maintain sort of the similar system, but merely streamline our processes to make sure that people understand that the office solicitor is not taking the central role. We also tried to create more explicit sort of ways in which you can get in contact with me, for example, creating an email box in the regulation so they can directly contact the office and explicit procedures and how you can get accountings of all we’ve given the records to.   

Tom Temin And with respect to the content of the records. You don’t want to be the person who decides what it is that can be released and not released, and also the person who decides whether something can be released. In other words. Shouldn’t there be some separation between the policy on privacy and the execution of the policy?   

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Thomas Tso The policy itself goes through. This is why we need a regulation that goes through notice and comment and it goes through. The whole agency has to approve of the general regulations and our general policy. We take the responsibility of looking at each record and ensuring that we’re redacting all the records for PII, and that takes a lot of work and a legal analysis to determine whether something has to be redacted or not.   

Tom Temin And do you do that yourself? Do you have a contractor that maybe executes the redactions, even though it’s not really a contractor’s role to decide what’s redacted, but how do you get all that work done?   

Thomas Tso It is becoming more and more difficult as it’s easier to file FOIA requests, given everything is electronic nowadays, or a Privacy Act requests. But we have a staff of two other attorneys and all three of us take a share of the responsibilities in a small agency when resources are limited. We all have to take on a role and our share of the burden.   

Tom Temin And how many FOIA and records requests come in? What’s the volume that you get in a given year?   

Thomas Tso So I don’t have that off the top of my head, but we do have FOIA reports online that report to the DOJ, which are all public information, and we’re about ready to file our annual report. We do get quite a few requests every year.   

Tom Temin Order of magnitude. Is it tens, hundreds, thousands or ten thousands.   

Thomas Tso In the hundreds. But I think what I’ve seen, it’s been increasing over the years.   

Tom Temin And does it tend to ebb and flow with where a particular agency’s labor relations contract negotiations are going? In other words, some of these recently settled contracts have been years in the making. And now that they’re settled, are people finding grievances.   

Thomas Tso So a lot of the FOIA requests. So we’re talking about FOIA requests, that’s Privacy Act requests. A lot of the FOIA requests are from outside parties. News media. Every time there’s perhaps a story in the news, there is a FOIA request to follow up to get more information about those requests. And since it’s so easy to now file FOIA requests, many more news organizations I think are getting involved in filing requests every time there’s a news article.   

Tom Temin I’m sure we have to. And by the way, what does the solicitor do when you’re not handling all of the FOIA and privacy requests?   

Thomas Tso So my primary job is to represent the FLRA in court, to defend our decisions in the D.C. Circuit in the Court of Appeals.  

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