EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION – In General

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A responding party’s primary defenses to producing relevant information are waiver, privacy, undue burden, or an absolute or qualified privilege. A responding party waives any defenses to disclosure that it fails to raise promptly after receiving a request. Moreover, if an information request requires clarification, is unduly burdensome, or seeks private information, the responding party is not permitted to deny the request outright and must instead offer to bargain in good faith regarding an appropriate accommodation. Here, the District never contested the relevance of IBEW’s requested information. Rather, the District objects to the ALJ’s characterization of its failure to respond as a “total abandonment of its obligation to provide necessary and relevant information to IBEW upon request,” explaining that it was consumed “just managing through COVID” and the various demands created by the pandemic until at least January or February 2021. It offered no other basis for its lack of response. Of the potential defenses available to the District, the only one with possible applicability in these circumstances is undue burden. However, the District waived this defense by failing to affirmatively and timely assert its concerns to IBEW such that the parties could bargain over them. (pp. 46-48.)