Principles for Public Safety Employment

Privacy  If the agency demonstrates that the reasonable expectation of privacy of a subject depicted in the recording cannot adequately be protected through redaction as described in clause (i) and that interest outweighs the public interest in disclosure, the agency may withhold the recording from the public, except that the recording, either redacted as provided in clause (i) or unredacted, shall be disclosed promptly, upon request, to any of the following: o The subject of the recording whose privacy is to be protected, or his or her authorized representative. o If the subject is a minor, the parent or legal guardian of the subject whose privacy is to be protected. o If the subject whose privacy is to be protected is deceased, an heir, beneficiary, designated immediate family member, or authorized legal representative of the deceased subject whose privacy is to be protected. NOTE: If disclosure to one of these persons would substantially interfere with an active criminal or administrative investigation, the agency shall provide in writing to the requester the specific basis for the agency’s determination that disclosure would substantially interfere with the investigation, and provide the video or audio recording – but may withhold the agency for 45 calendar days. 2. U NION A CCESS TO P ERSONNEL F ILE I NFORMATION A union is generally entitled to see an employee’s personnel file if the employee consents to such disclosure. If the employee does not consent to such disclosure, a balancing test is applied. In Detroit Edison Co. v. NLRB 386 , the United States Supreme Court held that an employer did not commit an unfair labor practice by refusing to disclose to the union to the union, without a written consent from individual employees, aptitude test scores linked with employees’ names in light of the sensitive nature of the testing information. The court stated:

A union’s bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. The duty to supply information under Section 8(a)(5) [of the NLRA] turns upon the circumstances of the particular case, and much the same may be said for the type of disclosure that will satisfy the duty. 440 U.S. at 314-15, 99 S.Ct. at 1131 (citations omitted). Thus, a balancing is required between the union’s need to have information so that it can effectively carry out its functions as bargaining representative of the employees and the employee’s legitimate right to privacy and the employer’s interest in maintaining the confidentiality of his or her personnel file. The relevancy of the information sought by the union, the employee’s privacy interest in the information sought and the safeguards

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 117