Decision 3034H – Regents of the University of California

The statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a right to information that is broader than the public’s right to review public records. (Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 15 (Butte-Glenn).) An employer must normally provide an exclusive representative with all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. (City and County of San Francisco (2024) PERB Decision No. 2891-M, pp. 7-8 (San Francisco); Butte-Glenn, supra, p. 9; Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 5, 16-17 (Contra Costa); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8 (Sacramento).) This is a liberal, discovery-type standard akin to the standard California courts use to determine relevance, and, notably, “necessary” and “relevant” are interchangeable terms that do not have separate meanings. (San Francisco, supra, p. 8; Butte-Glenn, supra, p. 9; Contra Costa, supra, pp. 5-6; Sacramento, supra, p. 8.) (pp. 7-8.)

A party responding to an information request must exercise the same diligence and thoroughness as it would in other business affairs of importance. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 46 (Imperial Irrigation); Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 10 (Butte-Glenn); Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 8-9 (Sacramento).) An unreasonable delay in providing information constitutes as much of a violation as an outright refusal. (Imperial Irrigation, supra, p. 46; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 20.) Moreover, an employer’s duty to provide information is not limited to information it owns; rather, it extends to all information that is available to it. (Regents of the University of California (2010) PERB Decision No. 2094-H, p. 26 [partially overruled on other grounds].) Thus, once a party receives a request for relevant information, it must either promptly and fully supply the information or timely and adequately explain its reasons for not doing so. (Butte-Glenn, supra, PERB Decision No. 2834, pp. 9-10; Sacramento, supra, PERB Decision No. 2597, p. 8.) Where a union requests information that is relevant and necessary to its representational responsibilities, the employer’s unjustified failure to provide that information is a per se violation of its bargaining duty, and a charging party is not required to show harm or prejudice as part of its prima facie case. (Butte-Glenn, supra, pp. 9-10.) (pp. 8-9.)

The employer bears the burden of proving any defenses, limitations, or conditions on the disclosure of relevant information. (Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 10 (Butte-Glenn); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 23.) An employer’s primary defenses to producing relevant information are waiver, privacy, undue burden, an absolute or qualified privilege, or that a request seeks information that does not exist. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 46; Butte-Glenn, supra, p.10; County of Tulare (2020) PERB Decision No. 2697-M, p. 14.) (p. 9.)

Because a union’s right to information is distinct from, and often broader than, the public’s right to access records, exemptions from public disclosure set forth in a public records act are not valid defenses to a union’s request pursuant to a labor relations statute. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 17; County of Tulare (2020) PERB Decision No. 2697-M, p. 14, fn. 9; Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 [collecting cases]; accord Postal Service (1991) 305 NLRB 997, 1004-1005 [although FOIA applies to the postal service, FOIA “establishes rights of the public-at-large to information in government files,” and exceptions to those rights “apply directly only to those rights and not to rights created under other statutes” such as the National Labor Relations Act].) (pp. 9-10.)

A responding party waives any defenses to disclosure that it fails to raise promptly after receiving a request. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 46; County of Tulare (2020) PERB Decision No. 2697-M, p. 14 (Tulare.) 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 appropriate accommodations. (Imperial Irrigation, supra, p. 46; Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 10 (Butte-Glenn); Tulare, supra, p. 14; Sacramento City Unified School District (2018) PERB Decision No. 2597, pp. 11-12.) A union should reassert or clarify its information request upon receiving a partial response from the employer, though the union may file a charge without doing so when it is sufficiently clear that the response did not fully satisfy the request. (Butte-Glenn, supra, p. 14.) (p. 10.)

University violated HEERA when it failed to exercise the same diligence and thoroughness as it would in other business affairs of importance. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 46.) University was not justified in its delay before responding to Union’s information request. Delays of six weeks or two months can be unreasonable in the absence of legitimate justification. (See, e.g., Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, pp. 24–25.) Here, University’s response more than four months after request only provided a link to a single document, and University did not indicate to which request this document might have been responsive, if any. Moreover, University’s tardy response was careless and unsubstantiated. (pp. 12-13.)

A union’s unique representational functions may allow it a right to sensitive or confidential information. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 8 (San Francisco); Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18 (Contra Costa); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 11 (Sacramento.) When an employer believes that a union has sought confidential information, settled procedural protocols govern how an employer must negotiate in good faith over a potential accommodation, and established substantive standards govern what must occur if the parties cannot work out such accommodations. (San Francisco, supra, pp. 8-9.) Procedurally, the employer must offer to bargain in good faith toward accommodating all legitimate competing interests, and if it instead unilaterally refuses to provide allegedly confidential information, it is liable for a violation without the need for further analysis. (Id. at p. 9; County of Tulare (2020) PERB Decision No. 2697-M, pp. 13-14 (Tulare); Contra Costa, supra, pp. 18-20; Sacramento, supra, pp. 12-14.) Bargaining parties may negotiate accommodations that recognize unions can be trusted to be discreet. (Sacramento, supra, p. 13.) For instance, the parties may enter into a confidentiality agreement or other arrangement in which the requesting union agrees to limit its use of the information to a particular purpose, and to disclose such information to union employees or attorneys only if necessary for that purpose. (San Francisco, supra, p. 9; Tulare, supra, p. 13; Contra Costa, supra, p. 19.) (pp. 10-11.)

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.)

An employer seeking to rely on the federal Privacy Act of 1974 (Privacy Act; 5 U.S.C. § 552a) must at minimum identify that statute or otherwise place the requesting union on notice of the asserted legal constraint. (pp. 13-14.) The Privacy Act’s central restriction provides that an agency or contractor may not disclose any record contained in a system of records without the prior written consent of the individual to whom the record pertains, unless a statutory exception applies. (5 U.S.C. § 552a(b).) The Privacy Act defines a “system of records” as “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” (Id., § 552a(a)(5).) (pp. 21, 24.)

Although “an employer normally does not create an obstacle to disclosure to an exclusive representative solely via the employer’s own act,” an employer entering into a contract can be relevant where the resulting privacy protection is “grounded in a previously existing privacy right.” (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 20.) (pp. 22-23, fn. 7.) Moreover, an employer’s duty to provide information is normally not limited to information it owns and instead extends to all information available to it. (Regents of the University of California, supra, PERB Decision No. 2094-H, p. 26 [partially overruled on other grounds].) (p. 29.)

Because RFIs by federal employee unions frequently implicate the Privacy Act, federal courts and the Federal Labor Relations Authority (FLRA) have developed the most extensive body of law addressing the interaction between the Privacy Act and a union’s right to information. For unions representing federal employees, that right arises under the Federal Service Labor-Management Relations Statute (FSLMRS; 5 U.S.C. § 7101 et seq.), which requires agencies to furnish relevant and necessary information to an exclusive representative “to the extent not prohibited by law.” (5 U.S.C. § 7114(b)(4).) The phrase "not prohibited by law" incorporates the Privacy Act, limiting the duty to furnish information where Privacy Act restrictions apply. (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 493-494.) Similarly, because federal contractors subject to the Privacy Act are often private entities, the National Labor Relations Board (NLRB) has addressed the same interaction in cases arising under the NLRA. (See, e.g., Goodyear Atomic Corp. (1983) 266 NLRB 890 (Goodyear), enf’d. 738 F.2d 155 (6th Cir. 1984).) Most decisions of the FLRA, NLRB, and federal courts which address the Privacy Act in the context of a union’s RFI analyze one of three Privacy Act exceptions: (1) the FOIA exception; (2) the exception for de-identified data used for statistical research or reporting; or (3) the routine use exception. (p. 24.)

An agency or contractor may disclose Privacy Act records to the extent they are disclosable under FOIA. (5 U.S.C. § 552a(b)(2).) FOIA, in turn, requires that public records be disclosed unless such records fall under one of nine specific exemptions. (5 U.S.C. § 552(b); Milner v. Department of Navy (2011) 562 U.S. 562, 564 (Milner).) The FOIA exception is the broadest Privacy Act exception, because FOIA’s nine exemptions are construed narrowly and agencies must produce all records not covered by an exemption. (Milner, supra, at p. 571 [noting FOIA’s “goal of broad disclosure” and instructing that exemptions be given a “narrow compass”]; Department of Air Force v. Rose (1976) 425 U.S. 352, 360-361 [FOIA’s “dominant objective” is to promote “disclosure, not secrecy”].) Thus, “[t]he net effect of the interaction between the two statutes is that where the FOIA requires disclosure, the Privacy Act will not stand in its way, but where the FOIA would permit withholding under an exemption, the Privacy Act makes such withholding mandatory upon the agency.” (News-Press v. U.S. Dept. of Homeland Sec. (11th Cir. 2007) 489 F.3d 1173, 1189.) Where an employer invokes the Privacy Act in response to a union’s RFI and the union relies on the FOIA exception, the resolution often turns on FOIA’s “Exemption 6,” which protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” (5 U.S.C. § 552(b)(6).) Thus, through a “somewhat convoluted path of statutory cross-references,” the Privacy Act only bars disclosure of personnel, medical, and similar files to the extent such disclosure “would constitute a clearly unwarranted invasion of personal privacy.” (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 495.) (pp. 25-26.)

Analyzing FOIA’s “Exemption 6,” which protects “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” (5 U.S.C. § 552(b)(6)), to determine its application to specific facts requires balancing the public interest in disclosure—principally public understanding of the operations or activities of the government—against the potential harm an individual would face based on disclosure of private information. (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 495 (DOD v. FLRA).) Thus, “information that sheds light on an agency’s performance of its statutory duties falls squarely within that statutory purpose,” unlike “information about private citizens that is accumulated in various governmental files but that reveals little or nothing about an agency’s own conduct.” (Id. at p. 496 [internal quotation marks and citation omitted].) (p. 26.)

There are important differences between PERB’s balancing test and that which applies under FOIA Exemption 6. FOIA Exemption 6 balances the public interest in disclosure—principally public understanding of the operations or activities of the government—against the potential harm an individual would face based on disclosure of private information. (U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487, 495.) Under the balancing test that PERB applies in cases not involving the Privacy Act, PERB weighs the union’s particularized need for the information against the privacy interests at stake, and orders disclosure unless the privacy interests outweigh the union’s needs. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 10 (San Francisco); County of Tulare (2020) PERB Decision No. 2697-M, p. 13; Contra Costa Community College District (2019) PERB Decision No. 2652, p. 18.) Other differences include, for instance, PERB can order a charging party union to keep records or information confidential (San Francisco, supra, PERB Decision No. 2891-M, p. 21), and a California public entity providing a union with information need not provide it to the public (id. at p. 15, fn. 9, citing Boardman v. Inslee (9th Cir. 2020) 978 F.3d 1092, 1110-1113 [collective bargaining disclosures are distinct from public records disclosures and do not trigger public access rights]). (pp. 26-27, fn. 9.)

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.)

The Privacy Act permits disclosure of records “to a recipient who has provided the agency with advance adequate written assurance that the record will be used, and the solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable.” (5 U.S.C.§552a(b)(5).) The Board interprets the Privacy Act’s statistical research exception in line with federal precedent. Such precedent holds that the determinative concern is whether the data is de-identified and how information will be used. Accordingly, the Board found it sufficient to order the University to disclose records in a de-identified manner and to require union to limit its use and disclosure of the de-identified records. (pp. 32-33.)

As employee health and safety constitute a core subject within the scope of representation (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 275; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 620), union’s request for information relevant to the health and safety of employees it represents was entirely necessary and relevant. (p. 12.)

The remedy for failure to provide information normally includes an order to provide the requested information upon the charging party’s request, irrespective of whether intervening events may have created new potential defenses to providing the requested information. (Butte-Glenn Community College District (2022) PERB Decision No. 2834, p. 19; Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5.) (pp. 14-15.)

Legal frameworks external to PERB-administered statutes—most commonly those establishing privacy protections—may impact PERB’s remedy in an RFI case. (City and County of San Francisco (2024) PERB Decision No. 2891-M, pp. 16, 18-19; Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 20-26 (Contra Costa).) Even where an employer has violated a collective bargaining statute through delay, waiver of defenses, or other defects in its response to an information request, PERB retains discretion to account for legitimate third-party privacy interests when fashioning a remedy. (County of Tulare (2020) PERB Decision No. 2697-M, p. 15 (Tulare); Contra Costa, supra, PERB Decision No. 2652, p. 20.) This principle does not negate the underlying violation but may limit the scope of the relief ordered. Accordingly, rather than remanding for the parties to bargain, the Board found it appropriate to direct a PERB compliance officer to oversee the disclosure process, ensuring prompt implementation of the Board’s order while accommodating all legitimate competing interests. (Tulare, supra, p. 15.) (p. 15.)

Where union’s RFI requested health and safety information regarding its members’ worksite, a national research lab operated by the University, PERB crafted its remedy with due regard to the Privacy Act of 1974 (Privacy Act; 5 U.S.C. § 552a). Because it is a federal statute, Supreme Court precedent such as U.S. Dept. of Defense v. Federal Labor Relations Authority (1994) 510 U.S. 487 (DOD v. FLRA) controls PERB’s Privacy Act interpretation. The main consequence is as follows: whereas FOIA exemptions do not independently bar disclosure under HEERA, the Privacy Act can constrain disclosure of certain records, and in evaluating such cases PERB applies the FOIA Exemption 6 standards explained in DOD v. FLRA, supra, 510 U.S. 487. Thus, when a federal agency claims the Privacy Act bars disclosure and a requesting union interposes the FOIA exception, the agency has the initial burden to show: “(1) that the information requested is contained in a ‘system of records’ under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests.” (U.S. Dep’t of Transp. Fed. Aviation Admin, New York TRACON Westbury (1995) 50 FLRA 338, 345.) If the agency meets this burden, then the union must: “(1) identify a public interest that is cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest.” (Ibid.) At that point, it is necessary to “balance the privacy interest against the public interest.” (Ibid.) If the public interest in disclosure outweighs the privacy interest, then a record may be disclosed in unredacted form. (See, e.g., National Ass’n of Atomic Veterans, Inc. v. Director, Defense Nuclear Agency (D.D.C. 1984) 583 F. Supp. 1483, 1485-1488 [granting FOIA request by veterans’ group based on public interest in helping veterans exposed to radiation]; Dep't of Veterans Affairs, Veterans Affairs Med. Ctr. Decatur, Georgia (2019) 71 FLRA 428, 445-449 [rejecting argument of Veterans Administration that Privacy Act required documents to be produced only in redacted form].) In contrast, if the public interest in disclosure does not outweigh that privacy interest, FOIA requires the federal agency or contractor to segregate identifying information (typically via redaction) and disclose the remainder of the record. (5 U.S.C. § 552(a)(8)(A)(ii) & (b), final par.; Department of Air Force v. Rose (1976) 425 U.S. 352, 374 & 381-382 [although redaction of identifying information provides individuals with imperfect privacy protection, redaction is a time tested and practical means of implementing FOIA’s clear segregation requirement].) (pp. 27-28.)

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.)

The Privacy Act permits disclosure of records “to a recipient who has provided the agency with advance adequate written assurance that the record will be used, and the solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable.” (5 U.S.C.§552a(b)(5).) The Board interprets the Privacy Act’s statistical research exception in line with federal precedent. Such precedent holds that the determinative concern is whether the data is de-identified and how information will be used. Accordingly, the Board found it sufficient to order the University to disclose records in a de-identified manner and to require union to limit its use and disclosure of the de-identified records. (pp. 32-33.)

Where union’s RFI requested health and safety information regarding its members’ worksite, a national research lab owned by the U.S. Department of Energy and operated by the University, PERB crafted its remedy with due regard to the Privacy Act of 1974 (Privacy Act; 5 U.S.C. § 552a). To the extent the Board ordered the University to provide union with records, the Board ordered such production for the five-year period union sought, and also ordered University to provide updated records promptly upon receiving such a request from the union. (City and County of San Francisco (2024) PERB Decision No. 2891-M, p. 23 (San Francisco).) To the extent the Board ordered redaction, University ordered to use de-identified placeholders that facilitate tracking across multiple records. (Id. at p. 16; County of Tulare (2020) PERB Decision No. 2697-M, p. 14 (Tulare); Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 13, fn. 7.) Because redaction can provide imperfect protection to individual privacy, the Board issued a complementary safeguard and directed union to use the records it receives only to investigate health and safety issues at national research lab and to pursue measures to prevent, lessen, ameliorate, or remedy such issues, including through collective bargaining. (San Francisco, supra, PERB Decision No. 2891-M, p. 21.) Finally, the Board directed PERB’s Office of the General Counsel or a designee to resolve any compliance disputes that arise in a manner consistent with its decision, issuing clear, written orders after in camera review of all necessary records. (Tulare, supra, PERB Decision No. 2697-M, pp. 15-16.) The compliance officer may, but need not, direct the University or union to submit a FOIA request to the extent the compliance officer finds that doing so will assist in expeditiously resolving this matter. (pp. 35-36.)