Labor & Employment Law

Certain demands for records related to an investigation to be honored

Certain demands for records related to an investigation to be honored
Matter of Civil Service Employees Association. v New York State Public Employment Relations Board, 46 A.D.3d 1037,

Sometimes a demand for records or information is rejected by a government department or agency on the grounds that such disclosure is barred by law. In this case, a state agency, the Office of Mental Retardation and Developmental Disabilities (OMRDD) cited §6527(3) of the Education Law as justification for its refusing to provide certain records to the Civil Service Employees Association (CSEA) in the course of an administrative disciplinary arbitration procedure involving two OMRDD employees represented by CSEA.

Education Law §6527(3), provides that:

Neither the proceedings nor the records relating to performance of a medical or a quality assurance review function ? including the investigation of an incident reported pursuant to §29.29 of the Mental Hygiene Law, shall be subject to disclosure under article thirty-one of the civil practice law and rules except as hereinafter provided or as provided by any other provision of law.

Following its receiving allegations of misconduct on the part of two of its employees, OMRDD initiated a ?quality assurance investigation? to determine what corrective measures, if any, were required. Based upon that investigation, OMRDD decided that the two employees should be terminated.

Ultimately the question of terminating the two individuals was submitted to an arbitrator. CSEA asked OMRDD for a copy of the relevant quality review investigation file in order to assist it in preparing its defense of the two negotiating unit members. When OMRDD refused to provide copies of the file, CSEA filed an improper practice charge with the Public Employment Relations Board (PERB).

PERB ruled that the arbitrator should review the records in camera [in private] to determine what, if any, information should be given to CSEA. OMRDD and CSEA both appealed PERB?s determination. Supreme Court dismissed the petition and cross petition and, again, both CSEA and OMRDD appealed.

OMRDD essentially argued that the information sought by CSEA is exempt from disclosure pursuant to Education Law §6527(3). CSEA contended that it required the information in order to prepare its defense of the two workers.

The Appellate Division said that it previously had to ruled on ?precisely this issue,? in an earlier case: Mental Hygiene Legal Services v Maul, 36 AD2d 1133.

The court pointed out that in Maul it held that:

where, as here, the request for documents was not made under the authority of CPLR Article 31 but, rather, in furtherance of the petitioner?s obligation to investigate allegations of abuse or mistreatment, the statutory prohibition was inapplicable.

Finding that in this instance CSEA had made its request ?in furtherance of [CSEA?s] obligation to effectively defend its members in an administrative disciplinary proceeding?, the Appellate Division concluded that the prohibition against disclosure is equally inapplicable in this instance.

As to PERB?s decision requiring OMRDD to provide a copy of the report for an in camera review by the arbitrator, the Appellate Division said ?we have no quarrel with the remedy fashioned by PERB.?

The decision notes that although PERB had previously held that employers are obligated to provide relevant information to a union investigating a grievance, here PERB recognized the need for confidentiality of the information obtained in the course of a quality assurance review. Considering ?these competing imperatives,? the Appellate Division concluded that PERB?s remedy permitting the arbitrator to review the documents in camera was neither arbitrary nor capricious.

Full post as published by New York Public Personnel Law on May 09, 2008 (boomark / email).