EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – Confidentiality; Privacy

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If the employer offers to bargain over privacy concerns, and it bargains in good faith to the extent requested but the parties fail to reach an agreement, then PERB must evaluate the substantive merits of the information request and privacy claim to resolve the union’s ensuing unfair practice charge. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 9 (San Francisco).) Where the employer raises a significant privacy interest—meaning a legally protected interest that the information request invades in a manner that is serious in both its nature and its scope—then a balancing test applies. (Ibid.; County of Tulare (2020) PERB Decision No. 2697-M, p. 13 (Tulare); Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18.) Under this test, an employer has the burden to show that the privacy interest outweighs the union’s informational need. (San Francisco, supra, p. 10.) PERB may tip the balance by directing the receiving union to refrain from releasing the information other than as needed for specific purposes. (Id. at p. 21.) Where privacy rights outweigh a requesting party’s need for information, resulting redactions should be narrowly tailored to address the privacy rights at issue, and the redacting party should use de-identified placeholders to make the redacted information as useful as possible. (San Francisco, supra, p. 16; Tulare, supra, p. 14; Sacramento, supra, PERB Decision No. 2597, p. 13, fn. 7.) (pp. 11-12.)