As noted in the previous post, the recently enacted AB 1455 of 2017 exempts from disclosure under the California Public Records Act (CPRA) all documentation of a city’s, county’s or special district’s process in collective bargaining with its recognized employee organizations.  The information a local agency can thus keep secret includes its internal “deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy” in negotiations concerning pay, benefits and working conditions.

On the other hand, the CPRA provides that any otherwise exempt information loses its confidential status if and when provided to “any member of the public.” One might request access to records that a local agency provided to and received from an employee organization in the course of negotiations on the ground that those received were not covered by AB 1455 (and in any event already known to the employee negotiators) and those provided to the employee “members of the public” had thereby lost their exempt status.

Most local agencies would deny access, arguing that their employee organizations were not “members of the public” but rather somehow administratively “members of the agency.” But they would need to deal with the fact that the CPRA expressly identifies a handful of entities to whom disclosure does not create a waiver of exemption, and neither employee organizations nor collective bargaining processes are on that carve-out list.

Alternatively one might request access to the AB 1455 materials involved in negotiations that have concluded in agreements presently or previously in force, contending that the exemption is intended not to create perpetual secrecy but rather to protect the agency’s negotiators and executives from having to share their current strategies with those across the bargaining table.  Such would be the narrow interpretation of AB 1455, and narrow interpretation of rules limiting public access to government information is mandated by the California Constitution under Proposition 59 of 2004. This argument is supported by the bill’s findings of purpose:

This act balances the right of the public to access relevant information about employee relations matters while protecting sensitive information related to collective bargaining and collective bargaining deliberations, the disclosure of which would frustrate the purpose of collective bargaining at local agencies and would make it more difficult to resolve disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations…

(emphasis added)

Unless AB 1455 is narrowly interpreted to apply only during the pendency of negotiations, the conceded “right of the public to access relevant information about employee relations matters” will be reduced to simply finding out the results of the bargaining after they are locked in.