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

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PERB has established the following legal framework covering situations where requested, presumptively relevant documents may contain confidential information that implicates “constitutionally significant privacy rights of third parties”: if a third party possesses a legally protected privacy interest that is based upon an objectively reasonable expectation of privacy, yet the union seeks to invade that privacy in a manner that is serious in both its nature and its scope, then PERB engages in a balancing test; if the serious invasion of privacy outweighs the union’s need for the information, then the union’s presumptive right to relevant information is overcome and narrowly tailored redactions or other accommodations become appropriate. (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Los Angeles Unified School District (2015) PERB Decision No. 2438, pp. 13-15, citing County of Los Angeles v. Los Angeles County Employee Relations Commission, et al. (2013) 56 Cal.4th 905, 926, and noting that balancing test applies only if all three elements of a privacy claim exist.) If the circumstances surrounding a union’s request show that third party privacy rights outweigh the union’s presumptive right to information, the employer still may not unilaterally determine how to proceed but must instead negotiate in good faith with the requesting union. (Contra Costa, supra, PERB Decision No. 2652, pp. 18-19; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 12-14.) PERB described several common redaction conventions and other possible accommodations.