California Attorney General Opinion No. 80-108

_________________________ ________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 80-108 : of : February 14, 1980 : GEORGE DEUKMEJIAN : Attorney General : : Edmund E. White : Deputy Attorney General : : SUBJECT: RELEASE OF STATE EMPLOYEES NAME—If a state employee requests, pursuant to Civil Code section 1798.62, that the state employer remove such employee’s name and home address from its list of employees in one of the 20 bargaining units established by the Public Employment Relations Board, the state employer is “prohibited by law” from releasing such employee’s home address to employee organizations in accordance with the provisions of title 8, California Administrative Code, section 32726 and Civil Code section 1798.62. The Honorable Edmund G. Brown, Jr., Governor of the State of California, requests an opinion on the following question: If a state employee requests, pursuant to Civil Code section 1798.62, that the state employer remove such employee’s name and home address from its list of employees in one of the 20 bargaining units established by the Public Employment Relations Board, is the state employer “prohibited by law” from releasing such employee’s home address to employee organizations as directed by California Administrative Code, title 8, section 32726? 1 80-108 CONCLUSION If a state employee requests, pursuant to Civil Code section 1798.62, that the state employer remove such employee’s name and home address from its list of employees in one of the 20 bargaining units established by the Public Employment Relations Board, the state employer is “prohibited by law” from releasing such employee’s home address to employee organizations in accordance with the provisions of title 8, California Administrative Code, section 32726 and Civil Code section 1798.62. ANALYSIS The state Public Employment Relations Board (hereinafter “PERB”), pursuant to the State Employer-Employee Relations Act (hereinafter “SEERA”) adopted an emergency regulation, title 8, California Administrative Code, section 32726, effective December 31, 1979, which reads as follows: “§ 32726. List of Voters. “(a) At a date established by the Regional Director, the employer shall file with the regional office a list of names of all employees included in the voting unit as of the cutoff date for voter eligibility. Unless otherwise directed by the Regional Director, the voter list for an on-site election shall be in alphabetical order by assigned polling site and shall include the job title or classification, work location and mailing address of each eligible voter. Unless otherwise directed by the Regional Director the voter list for a mailed ballot election shall be in alphabetical order and include the job title and mailing address of each eligible voter, and shall be accompanied by two sets of name and mailing address labels for each eligible voter. For purposes of this section, mailing address means the home address of each eligible voter, except in the case where the release of the home address of the employee is prohibited by law, of if the Board itself shall determine that the release of home addresses is likely to be harmful to the employees. “(b) A copy of a list which meets the requirements of subsection (a) above and which is approved by the Regional Director pursuant to subsection (a) above shall be served concurrently by the employer on each employee organization appearing on the ballot. A statement of service shall be sent to the regional office with the list. “(c) Unless otherwise authorized by the employer, any employee organization which receives the mailing addresses of eligible voters pursuant 2 80-108 to this Regulation shall keep these addresses confidential and shall not distribute them to any other organization or individual.” (Emphasis added.) The issue we are requested to resolve is whether the provisions of Civil Code section 1798.62, part of the Information Practices Act, Civil Code section 1798.3 et seq., may constitute a “case where the release of the home address of the employee is prohibited by law” within the meaning of title 8, California Administrative Code section 32726. Civil Code section 1798.62 reads as follows: “Upon written request of any individual, any agency which maintains a mailing list shall remove the individual’s name and address from such list, except that such agency need not remove the individual’s name if such name is exclusively used by the agency to directly contact the individual.” We must decide first whether “the list of voters” that is the subject of PERB’s emergency regulation constitutes a “mailing list.” The regulation speaks in terms of a list of names of all employees in a voting unit, which shall be in alphabetical order “by assigned polling site” and shall include, inter alia, the mailing address of each eligible. The regulation further provides that “the voter list for a mailed ballot election shall be in alphabetical order and include the job title and mailing address of each eligible voter, and shall be accompanied by two sets of name and mailing address labels for each eligible voter.” (Emphasis added.) The phrase “mailing address” is defined as the home address of each eligible voter. A copy of such a list “Approved by the Regional Director” must be served concurrently by the employer on each employee organization appearing on the ballot. We conclude that the “list of voters” constitutes a “mailing list.” We turn, then, to the applicability of Civil Code section 1798.62, which is part of the Information Practices Act, Civil Code section 1798.3 et seq. The Information Practices Act is applicable generally to “every state office, officer, department, division, bureau, board, commission, or other state agency, except . . .” the Legislature, the courts (established under art. VI of the Cal. Const.) and the State Compensation Insurance Fund (with another exception pertinent thereto). (Civ. Code, § 1798.3, subd. (d).) The Information Practices Act was enacted in order to protect the privacy of individuals with respect to the maintenance and dissemination of personal information pertaining to them by the state. (Civ. Code, § 1798.1.) (See 63 Ops. Cal. Atty. Gen. 46 (1980). The Information Practices Act applies to “personal and confidential information, except as otherwise specified, and does not apply to nonpersonal information.” (Civ. Code, § 1798.2.) Civil Code section 1798.3, subdivision (a) defines “confidential information,” while subdivision (b) defines “personal information.” 3 80-108 Civil Code section 1798.3, subdivision (c) provides in part as follows: “(c) The term ‘nonpersonal information’ means all of the following: “(1) Information consisting only of names, addresses, telephone numbers and other limited factual data, which could nor, in any reasonable way (i) reflect or convey anything detrimental, disparaging, or threatening to an individual’s reputation, rights, benefits, privileges, or qualifications or (ii) be used by an agency to make a determination that would affect an individual’s rights, benefits, privileges, or qualifications. “(2) An agency telephone book or directory which is used exclusively for telephone and directory information. “ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “(4) Any mailing list which is used exclusively for the purpose of mailing agency information. . . .” It is apparent that Civil Code section 1798.3, subdivision (c) (4) and Civil Code section 1798.62, supra, overlap. The latter provision relates to a “mailing list” maintained by any agency, with respect to which an individual has a right, upon written request, to have his or her name removed except if such name is “exclusively used by the agency to directly contact the individual.” (Emphasis added.) The former provision defines “nonpersonal information” as any mailing list which is used exclusively for the purpose of mailing agency information. Thus, it is implied that requesting one’s name and address to be removed from a mailing list transforms such information into “personal” information. The necessary effect of Civil Code section 1798.62 is to provide to any individual an absolute right, upon his or her written request, to have his or her name and address removed from any mailing list maintained by an agency. Upon such a request being made, the only use that may be made of that person’s name and address is “exclusively” by the agency to contact directly the individual filing the requisite written notice. The release of the home address of an employee is thus “prohibited by law” upon the receipt of the requisite written request authorized by Civil Code section 179862 thus excluding such a name and address from the “list of voters” authorized by title 8, California Administrative Code section 32726, unless some provision of SEERA operates to authorize its release despite Civil Code section 1798.62. 4 80-108 We turn to the provisions of SEERA, Government Code section 3512 et seq. Government Code section 3512 provides in part that: “It is the purpose of this chapter to promote full communication between the state and its employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between and state and public employee organizations. It is also the purpose of this chapter to promote the improvement of personnel management and employee-employer relations within the State of California by providing a uniform basis for recognizing the right of state employees to join organizations of their own choosing and be represented by such organizations in their employment relations with the state. “Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle in state employment.” Government Code section 3515.5 provides that “Employee organizations shall have the right to represent their members in their employment relations with the state, except that once an employee organization is recognized as the exclusive representative of an appropriate unit, the recognized employee organization is the only organization that may represent that unit in employment relations with the state. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership. Nothing in this section shall prohibit any employee from appearing on his own behalf in his employment relations with the state.” Government Code section 3515 provides that: “Except as otherwise provided by the Legislature, state employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations. State employees also shall have the right to refuse to join or participate in the activities of employee organizations, except that nothing shall preclude the parties from agreeing to a maintenance of membership provision, as defined in subdivision (h) of Section 3513, pursuant to a memorandum of understanding. In any event, state employees shall have the right to represent themselves individually in their employment relations with the state.” 5 80-108 Government Code section 3519 makes it unlawful for the state to do certain acts1 including “. . . (b) Deny to employee organizations rights guaranteed to them by this chapter . . . .” Government Code section 3520.5 provides that: “(a) The state shall grant exclusive recognition to employee organizations designated or selected pursuant to rules established by the board for employees of the state or an appropriate unit thereof, subject to the right of an employee to represent himself. “(b) The board shall establish reasonable procedures for petitions and for holding elections and determining appropriate units pursuant to subdivision (a). “(c) The board shall also establish procedures whereby recognition of employee organizations formally recognized as exclusive representatives pursuant to a vote of the employees may be revoked by a majority vote of the employees only after a period of not less than 12 months following the date of such recognition.” Thus, pursuant to Government Code section 3515, an employee has the right to refuse to join or participate in the activities of employee organizations, subject to any “maintenance of membership provision.” Pursuant to Government Code section 3520.5, an employee has the right to represent himself or herself. Government Code sections 3515 and 3520.5, supra, provide that an employee may refuse to participate in the activities of employee organizations. One necessary implication is that an employee may, as part of a refusal to participate, decline to have his or her name submitted by an employer to an employee organization. We conclude that this inference is made express by the provisions of Civil Code section 1798.62, upon the employee executing the requisite written notice to his or her employing agency. Viewed thusly, the two acts not only do not conflict but complement each other. 1 Assuming arguendo that PERB may have some authority similar to that upheld in Excelsior Uuderwear, Inc. (1966) 153 NLRB 1217, by which authority employers in the private sector are required to release the names and home addresses of employees in a bargaining unit to employee organizations, nothing in the Excelsior, SEERA, the Privacy Act or the Public Records Act purports to deprive an employee of the statutory right to have his or her name and address, removed from a mailing list. We note that the Excelsior case was approved, NLRB v. Wyman-Gordon Co. (1969) 394 U.S. 759. 6 80-108 Accordingly, if a state employee requests, pursuant to Civil Code section 1798.62, that his or her employer remove one’s name and home address from its list of employees in one of the 20 bargaining units established by the Public Employment Relations Board, the state employer is “prohibited by law” from releasing such employee’s home address to employee organizations in accordance with title 8, California Administrative Code, section 32726. The conclusion herein expressed pertains to a specific question of statutory interpretation. This opinion is not intended and should not be construed as passing on the constitutional sufficiency of SEERA or of any of its provisions. (Cf. 61 Ops. Cal. Atty. Gen. 405, 412 (1978).) We do not consider whether the employer may release to an employee organization the address of the place of employment of such an employee or whether the employer may furnish directly to such an employee information provided by an employee organization. ***** 7 80-108