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DWK Guidance Constitutional Privacy, the CPRA and EERA: Navigating Post-Janus Legal Opinions and Demands

Jul 25, 2018 | Legal Developments and News

School districts and county offices of education have been inundated with opinions and “demand letters” from various labor organizations “directing” the employer to either take or refrain from taking certain actions as a result of the United States Supreme Court Janus decision. These letters refer to various legal authorities, including constitutional rights to personal and associational privacy, the California Public Records Act (CPRA) and the Educational Employment Relations Act (EERA). The purpose of this DWK Guidance is to clarify employer rights, duties and obligations and provide practical guidance amidst the numerous post-Janus communications.

Our overarching recommendation is to confer with your legal counsel prior to responding by correspondence or action to the various demands and requests you are receiving. Among the many legal authorities being cited, some are relevant, some are misstated, and some may not apply. Your legal counsel should assist you in navigating through this minefield of supposed mandates with specific attention paid to the particular collectively bargained provisions and practices that exist in each district or COE.

Below are the major points raised by and responses to the post-Janus letters and demands:

1.  Districts and COEs are required to comply with the CPRA in a timely manner. Absent a clear exemption, employers are required to respond to a request under the CPRA by “promptly” disclosing public records. The California Attorney General has described this process as follows:

When a copy of a record is requested, the agency shall determine within ten days whether to comply with the request, and shall promptly inform the requester of its decision and the reasons therefor. Where necessary, because either the records or the personnel that need to be consulted regarding the records are not readily available, the initial ten-day period to make a determination may be extended for up to fourteen days. If possible, records deemed subject to disclosure should be provided at the time the determination is made. If immediate disclosure is not possible, the agency must provide the records within a reasonable period of time, along with an estimate of the date that the records will be available. The Public Records Act does not permit an agency to delay or obstruct the inspection or copying of public records. (Summary of the California Public Records Act 2004, California Attorney General’s Office, page 5, bold added, citing Government Code section 6253(c).)

2.  The Constitution does not prohibit compliance with valid CPRA requests. Some demand letters assert that districts and COEs should rely on constitutional privacy rights, including “associational privacy,” as legal rationale to refuse disclosure of certain employee information (e.g., names, work email, title, work address/location, seniority dates and name of union).

The California Attorney General has advised:

Privacy is a constitutional right and a fundamental interest recognized by the CPRA. Although there is no general right to privacy articulated in the CPRA, the Legislature recognized the individual right to privacy in crafting a number of its exemptions. Thus, in administering the provisions of the CPRA, agencies must sometimes use the general balancing test to determine whether the right of privacy in a given circumstance outweighs the interests of the public in access to the information. If personal or intimate information is extracted from a person (e.g., a government employee or appointee, or an applicant for government employment/appointments a precondition for the employment or appointment), a privacy interest in such information is likely to be recognized. (Summary of the California Public Records Act 2004, California Attorney General’s Office, page 3, citing Article 1, section 1 of the California Constitution; Government Code sections 6254(c), 6254(k), and 6255; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579.

The quandary presented by the constitutional argument for nondisclosure is that much of the requested information has already been held by the courts to be disclosable.[1] As to this information, the “balance” was legally determined to tip for public access to the information, and such records are disclosable under the CPRA.  In fact, a case cited by labor organizations on this point explicitly states it was not decided based on the privacy rights of public employees.[2]

The current requests for employee records do not present the same kind of facts establishing an overriding public interest in nondisclosure that led the court in the LAUSD case to rule student test scores linked to individual teachers should not be disclosed. Therefore, application of the “balancing test” does not prevent disclosure in the current situation. Also, prior cases requiring mass disclosure of public employees’ salary information suggest a viable public interest in disclosure of similar information at the agency level.[3]

Finally, for many districts and COEs, any argument that such information is exempt from disclosure would be undercut by the amount of information already available on their websites or provided in response to prior CPRA requests.

3.  The “decision” whether to comply with a CPRA request is not negotiable. The decision whether to comply with a valid CPRA request is not negotiable, since an employer’s obligation to abide by the law is not a subject of bargaining.

4.  A demand to bargain “effects” of CPRA compliance does not delay meeting time lines. How should districts and COEs respond? Many districts and COEs have received demands to bargain the effects of releasing certain public employee information prior to disclosing any records. It is alleged that release of records will disrupt efficient district operations due to a flood of non-work related emails. Here are the key points to remember in responding to this formal demand:

  • A demand to bargain the effects of a non-negotiable decision to comply with a statutory deadline, or in PERB’s words, “an immutable deadline imposed by law,” is not a legal basis to delay meeting that deadline. (Compton Community College District (1989) PERB Decision No. 720.) Thus, the time lines in #1 above must be met even in light of a demand to bargain effects.
  • Assertions of disruption to district operations as a result of public records disclosure may seem speculative at best. Please note that the union, not the district, is responsible for identifying effects that are reasonably foreseeable and negotiable. Under the EERA, however, the employer should not unilaterally conclude that certain effects or impacts in a given case are non-negotiable. Instead, PERB has held the employer should take certain steps in response to a demand to bargain effects, including a duty to clarify negotiability issues, in order to meet its obligation to negotiate in good faith and avoid liability for failing and/or refusing to negotiate in good faith. (County of Santa Clara (2013) PERB Decision No. 2321-M; Rio Hondo Community College District (2013) PERB Decision No. 2313.)
  • These steps are:
    • Provide a prompt written response indicating that no impacts on negotiable subjects of bargaining have been identified by the union, nor does the district anticipate any such impacts due to the contemplated release of public records.
    • Indicate in the response that, although no negotiable effects are identified or foreseen, the district or COE is ready and willing to meet to afford the union an opportunity to explain/clarify its position and rationale and to identify, if possible, negotiable effects.
    • State in the response that the district or COE will fully and fairly consider the union’s arguments in determining whether any negotiable effects have been identified to trigger the duty to bargain; however, in any event, the district will comply with mandatory CPRA time lines for disclosure.

The foregoing steps are in the context of a demand to commence formal negotiations under the EERA. We emphasize, however, that districts and COEs should continue to cooperate and collaborate with their labor partners in accordance with established relationships and communication protocols as they traverse this new legal landscape.

5.  CPRA compliance does not violate employer “neutrality” under the EERA. The EERA provides, “A public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.” (Government Code section 3550.)

Disclosure of employee records in compliance with the CPRA does not, as has been asserted, make the employer complicit with outside entities seeking the information for the presumed purpose of deterring or discouraging employees regarding union membership status. A basic tenet of CPRA compliance is to analyze whether a particular record is disclosable or exempt from disclosure according to the statute and case law, without regard to who has made or the purpose of the request. (Government Code section 6257.5 [“[The CPRA] does not allow limitations on access to a public record based upon the purpose for which the record is being requested, if the record is otherwise subject to disclosure.”])  Since courts have already determined that public employee names and work locations (and even their salaries) etc., are public records, the fact that this information is now being sought for purposes with which some disagree does not change the outcome.

Disclosing public records as required by the CPRA does not amount to the employer “taking a side” in the larger debate that may be occurring as a result of the Janus decision, and compliance with the CPRA does not violate the EERA in this respect.

6.  Notice to individual employees of public records disclosure is not required. Another demand being made by labor associations is that the employer notify each bargaining unit member/employee of the intent to disclose records and afford them an opportunity to show circumstances justifying nondisclosure. Also asserted is an employer duty to obtain clear and affirmative assent to the release of information from each employee.

We are aware some employers notify employees of an imminent release of records concerning the employees out of a sense of courtesy and perhaps to allow an employee to intervene legally prior to disclosure. Employers may wish to exercise local judgment and discretion in this regard. Neither the CPRA nor the EERA, however, require the individual notices or consents, etc., described above as prerequisites to CPRA compliance.

CONCLUSION: Amidst all the legal claims, demands and assertions post-Janus, we reiterate our “Practical Tips” from DWK’s Expanded FAQs in order to maintain an even-handed and common sense approach to emerging issues:

With assistance from legal counsel, districts and COEs should consider the following:

  • Carefully review collective bargaining agreements, including but not limited to savings, maintenance of membership, and organizational security provisions to ascertain whether negotiations are required with the union to comply with recent changes to the law;
  • Remain neutral regarding matters between unions and their employees, including union membership and dues authorizations;
  • Comply with applicable law regarding employer communications to employees – be factual, do not interfere with employees’ rights, and do not attempt to deter or discourage employees from becoming or remaining members of an employee organization. As appropriate, direct employees to their union or the Public Employment Relations Board (“PERB”) regarding questions relating to membership and dues authorizations, revocations, and cancellations;
  • Do not make any unilateral changes relating to matters within the scope of representation; and
  • Work with employee groups and other stakeholders to insure a smooth transition. Full and timely compliance with the law and neutrality regarding union membership issues should guide districts’ efforts.

If you have questions about the Janus decision, CPRA-related compliance issues, application of obligations under the EERA, or recently enacted SB 866, please do not hesitate to contact a DWK attorney in our Labor, Employment and Personnel group or Board Ethics, Transparency and Accountability group.

We will address the latest post-Janus and SB 866 issues during a portion of our upcoming August and September Ed Lab sessions across the state. To sign up for DWK’s Ed Lab at a location near you, please use the following link:

[1] Comm’n on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 284 [“names, employing departments, and hiring and termination dates” of public employees are subject to disclosure under the CPRA]; Lorig v. Med. Bd. (2000) 78 Cal.App.4th 462 [no prohibition on public posting of mailing addresses].)

[2] LAUSD v. Superior Court (2014) 228 Cal.App.4th 222, 254

[3] Int’l Fed’n of Prof’l & Tech. Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319.)


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