REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS – Provision of Information

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While the Privacy Act of 1974 (Privacy Act; 5 U.S.C. § 552a) applies to University as a federal contractor, union was not required to submit a FOIA request to federal Department of Energy (DOE) rather than an RFI to the University. FOIA establishes a mechanism for the public to access federal records; it does not displace any independent statutory right to information arising under a collective bargaining statute. And the University-DOE contract does not purport to require a union seeking DOE-owned information from the University to file a FOIA request, nor does it otherwise purport to limit the University in complying with HEERA by providing records that fall within a Privacy Act exception. (p. 29.) Nevertheless, in an abundance of caution and to facilitate efficient compliance, PERB recognizes that a FOIA request may in some circumstances be the most rapid means to obtain records. Accordingly, the Board’s remedial order empowered the compliance officer with discretion, as part of ensuring prompt records disclosure in a manner consistent with the Board’s decision, to require that union or University utilize FOIA procedures if helpful in implementing PERB’s order. The Board made explicit that this procedural authority does not reflect any legal requirement that union proceed through FOIA but instead allows flexibility in choosing the best means to achieve prompt compliance. (p. 32.)