Duty to Provide Information

1. Duty to Provide Information Mark P. Amberg Portland ▪ Eugene ▪ Salem harrang.com 800.315.4172

2. Responding To Requests For Information • Consider context in which request is being made • Contract bargaining • Grievance • Arbitration • For public entities, in addition to PECBA, the Public Records Law may apply and impose a duty to provide information even if not required by PECBA

3. Responding To Requests For Information • Overarching concepts • Duty to provide information under PECBA is part of the duty to bargain in good faith • The law favors disclosure of information • When analyzing a duty to provide information case, ERB begins its analysis with the premise of full disclosure. AOCE v. State of Oregon, Department of Corrections, 18 PECBR 64, 70 (1999)

4. Responding To Requests For Information • Overarching concepts • Under PECBA, information that is either “reasonably necessary to allow meaningful bargaining on a contract proposal” (context of contract bargaining) • Washington County School Dist. No. 48 v. Beaverton Education Ass’n, 5 PECBR 4398, 4405 (1981) • Or is of “probable or potential relevance to a grievance or other contract administration issue” (grievance or contract administration context) must be provided • Deschutes County 911 Employees Ass’n v. Deschutes County 911 Service Dist. • While similar, not governed by rules of discovery that apply in litigation

5. Reasons For Objecting To ARequest For Information • No duty to bargain (contract bargaining context) • If there is no duty to bargain over a subject, there is no obligation to provide information on that topic • AFSCME Local 88 v. Multnomah County Board of Commissioners, 7 PECBR 6452, 6470 (1984)

6. Reasons For Objecting To ARequest For Information • Information isn’t “relevant” to the matter at issue • Party responding to the request has the right to ask for clarification of a request for information • Requesting party has a duty to explain the relevance of the request • Information is equally available to the requesting party (e.g., information that is a matter of public record)

7. Reasons For Objecting To ARequest For Information • Information is confidential or otherwise protected against disclosure • Note: Responding party should make its objections or questions known to afford the requesting party an opportunity to explain more clearly the relevance of the requested information

8. Confidential Or Protected Information • The duty to supply information does not include the obligation to produce certain confidential information • In the Matter of a Petition for a Declaratory Ruling Filed by the OSEA,9 PECBR 9054, 9060 (1986); OSEA, Chapter 68 v. Colton School Dist.53,6 PECBR 5027, 5032 (1982)

9. Confidential Or Protected Information • ERB will balance a party’s need for information against any legitimate and substantial confidentiality interests asserted by the responding party • AOCE v. State of Oregon, Dep’t of Corrections, 18 PECBR 64, 71 (1999)

10. Confidential Or Protected Information • The party asserting confidentiality has the burden of establishing it, and the responsibility to propose an accommodation that would address the confidentiality concern • AOCE v. State of Oregon, Dep’t of Corrections, 18 PECBR 64, 71 (1999)

11. Confidential Or Protected Information • Common types of information that may be confidential or protected: • Personnel information/information of a personal nature • Attorney/client communications • Attorney work product • Internal union communications

12. Confidential Or Protected Information • Common types of information that may be confidential or protected: • Information regarding public safety officers • Medical records or information under HIPAA and other laws • Student records under FERPA • Executive session tape recordings/minutes

13. Personnel / Personal Information • Employer needs to be cautious about releasing information that is personal information of employees (e.g., social security number or driver’s license information • Employer should require union to obtain written consent of employee before releasing personal information from employee’s personnel file • See, Detroit Edison Co. v. National Labor Relations Board, 440 U.S. 301 (1979); Salt River Valley Water Users Assn. v. National Labor Relations Board, 759 F.2d 639 (9th Cir. 1985)

14. Personnel / Personal Information • A union may obtain transfer and discipline information contained in personnel files on current and former employees; notwithstanding, their possible exemption from disclosure under the PRL • In the Matter of a Petition for a Declaratory Ruling Filed by the OSEA, 9 PECBR 9054, 9062 (1986) • See Oregon State Police Officers’ Ass’n v. State of Oregon, 11 PECBR 718 (1989)

15. Public Safety Officers(ORS 181.852 / 181.854) • Includes: • Police officers • Fire fighters • 911 dispatchers • Corrections officers (adult and youth) • Parole and probation officers

16. Public Safety Officers(ORS 181.852 / 181.854) • Information potentially protected: • Information while officer performing undercover investigation duties • Photograph of employee • Information concerning a “personnel investigation” that does not result in discipline

17. Public Safety Officers(ORS 181.852 / 181.854) • Under the statute, the public employer is required to notify the public safety employee if the public employer receives a request for: • A photograph of the employee • Information regarding a personnel investigation of the employee that does not result in discipline of the employee

18. Public Safety Officers(ORS 181.852 / 181.854) • Under the statute, the public employer is required to notify the public safety employee if the public employer receives a request for: • Information about the employee that is exempt from disclosure under certain provisions of the Oregon Public Records Law (ORS 192.501, 192.502(2), 192.502(3) • The public employer could be subject to civil liability if fail to notify the public safety employee of request for these types of information

19. Health Insurance Portability And Accountability Act – Medical Records • HIPAA and other laws (e.g., ADA) protect medical information • HIPAA covers “Protected Health Information” which is “individually identifiable health information” • Employers must limit disclosure of PHI

20. Health Insurance Portability And Accountability Act – Medical Records • Disclosure of HIPAA protected records requires one of the following: • Written consent of the person whose records are involved • A valid subpoena that complies with HIPAA requirements of notice to the affected person and an opportunity to object

21. Health Insurance Portability And Accountability Act – Medical Records • Disclosure of HIPAA protected records requires one of the following: • A court order • An order from an arbitrator or ERB probably is not sufficient • An “exception” under HIPAA that permits outright disclosure (e.g., for a criminal investigation, for a BOLI or EEOC investigation)

22. Family Educational Rights And Privacy Act • Prohibits nonconsensual disclosure of a student’s personally identifiable information from the student’s educational records • Generally, information which relates to the student’s behavior, academic progress, or any other aspect of their education • All educational agencies and institutions that receive funding under any program administered by the U.S. Department of Education are covered by FERPA

23. Family Educational Rights And Privacy Act • “Educational record” is defined as: “Records, files, documents, and other materials which contain information directly related to a student and are maintained by an educational agency or institution or by a person acting for such agency or institution”

24. Family Educational Rights And Privacy Act • Generally does prohibit disclosure of: • Directory information • Some results of student disciplinary proceedings involving: • A crime of violence • Non-forcible sexual offenses • When student is found to have violated school rules or policies

25. Has There Been A Violation Of The Duty To Provide Information Under PECBA? • Whether there has been a violation of the duty to provide information and, therefore, an unfair labor practice, will be analyzed by ERB considering the “totality of the circumstances” • OSEA, Chapter 68 v. Colton School Dist. 53, 6 PECBR 5027, 5031 (1982). • Threshold question is whether the information sought was either: • Reasonably necessary to allow meaningful bargaining in the context of contract negotiations • Or of probable or potential relevance to a contractual matter in the context of a grievance or contract administration

26. Has There Been A Violation Of The Duty To Provide Information Under PECBA? • ERB will weigh the information requested against the reason for the request • Assuming the request meets the threshold question, ERB will consider four factors (outlined in Colton) to determine the extent of the duty and whether a violation has occurred: • The “reason given for the request” • The “ease or difficulty with which the data can be produced” • The “kind of information requested” • The “history of the parties’ labor-management relations”

27. Questions? ? ? ? ? ? ? ? ? ? ?