We are frequently asked by public employers to help them navigate requests from their employees and unions for information pertaining to the employer’s internal investigations. While the law in this arena from the courts and PERB continues to evolve, there is a general legal framework that public employers should keep in mind when determining who gets what, when and in what form.
So, how do you determine who gets what, when, and in what form? The answer is the classic lawyers’ answer: “it depends on the facts.” Nevertheless, the following checklist can guide public employers in their assessment:
• Determine Which Rules Apply To The Type Of Investigation
While this crucial first step should be self-evident, it is surprising how often agencies do not assess up front which rules apply. The rights of employees and their representatives to investigation information depend, fundamentally, on what rules apply. Therefore, it is critical from the beginning of an investigation to identify the applicable rules, and rule out the ones that do not apply. Particularly in the public sector, applicable rules can come in many forms: statutes, administrative regulations, personnel rules, collective bargaining agreements. Oftentimes, multiple sets of rules will apply to the same investigation. If multiple rules apply, the agency will need to determine which rules take precedence over others in the event of a conflict. Legal counsel should be consulted to assist in determining how to proceed in the event of a conflict.
• Identify Who Is Making The Request For Information
The identity of the individual or group requesting the information determines their rights, plain and simple. For example, public safety officers generally have greater rights than other employees to certain information while an investigation is pending.
• Assess The Basis For The Request
Additionally, the basis for the request also determines the response. If the basis for the request is not clear, the party requesting the information should be asked to specify the basis in writing so that the agency can respond. As discussed above, statutes, regulations, personnel rules and/or collective bargaining agreements may determine the rights in any particular case. Therefore, it is critical to pin down the basis for the request from the outset so that the agency can determine the appropriate response.
• Ascertain The Status Of The Investigation
The status of the investigation determines, in part, what (if any) information must be provided at any particular point in time. As a general rule, more information may be available to more individuals and/or their representative following completion of an investigation.
• Determine Whether Any Privileges Apply
All or a portion of an investigation report or supporting documentation may be privileged. Particularly where the investigation has been conducted by, or in conjunction with an attorney, it will be important to carefully review each document within the request to determine whether it is protected by the attorney-client privilege or attorney work product doctrine. Additionally, individual rights of privacy may also apply. In such cases where potential privileges apply, legal counsel should be consulted in determining the appropriate response.
• Determine The Form Of Any Required Response
If disclosure is appropriate, blanket disclosure may not necessarily be required. Where issues of privacy and confidentiality are concerned, particularly for third parties, or individuals who are not managers or supervisors, redaction of names and identifying information may be appropriate. In such circumstances, it may be possible to reach agreement with the requesting party on a form of disclosure that protects the employer’s concerns for privacy and confidentiality while providing the information that must be disclosed.
• Make Sure The Response Is Documented In Writing
Memories fail and stories change. The agency should – after analyzing the facts and determining the appropriate response – make sure that its response and the reasons for the conclusion are adequately documented in writing with sufficient facts, and provided to the requesting party. This should diminish discrepancies at a future date regarding the basis for the agency’s decision. It will also assist the agency in proving its response, should questions arise at some future point in time as to the timing, content, or existence of a response.