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

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In assessing potential privacy rights of third party students in response to information request seeking student complaints of discrimination against faculty, Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), and its California equivalent, do not cover complaints requested by union. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-755.) In any event, proving FERPA coverage provides neither a necessary nor a sufficient basis for community college district to withhold the complaints. FERPA allows disclosure by consent of a student, and student consent is typically necessary to allow a school to investigate fully the student’s complaint. Most employers properly inform complainants that if they do not consent to disclosure as needed to investigate, it may be impossible to investigate their complaints. On the other hand, even in the absence of FERPA coverage, Board must weigh complainants’ interests in having their complaints treated as confidential to the extent possible while still affording all applicable rights to accused employees and their exclusive representatives. However, a blanket policy of nondisclosure is inconsistent with an employer’s duty to provide information.