By: Brittany Flaherty Theis

In a case of first impression, the Illinois Appellate Court recently held that a school district did not commit an unfair labor practice when it refused to turn over student disciplinary records pursuant to a subpoena issued by an arbitrator during a grievance proceeding. The court explained the interrelation of the Illinois Educational Labor Relations Act (the “Labor Relations Act”) and the Illinois School Student Records Act (the “School Records Act”) and their impact on what is required of school districts when bargaining in good faith.

In Board of Education of the City of Chicago v. Illinois Educational Labor Relations Board, the Board of Education of the City of Chicago (the “Board”) terminated one of its school security officers on the grounds that he initiated physical altercations with two students. Thereafter, the Service Employees International Union, Local 73 (the “Union”) initiated a grievance proceeding regarding the discharge. The grievance proceeded to arbitration.

In preparation for arbitration, the Union requested several documents. The Board turned over most of the requested records, but refused to produce the disciplinary records of two students on the grounds that the records were confidential. The Union indicated its willingness to accept documents that redacted the last names of the students and assured the Board that the records would remain confidential. However, the Board again declined to turn over the records so the Union requested, and the arbitrator executed, a subpoena. The Board still refused to provide the documents, but indicated that it would comply if an order was issued by the court.

Rather than seek a court order, the Union filed an unfair labor practice charge alleging that the Board violated Section 14(a)(5) of the Illinois Educational Labor Relations Act, which requires an employer to bargain collectively in good faith with an employee representative. The Illinois Educational Labor Relations Board (the “IELRB”) determined that the Board’s confidentiality concerns were mitigated by the Union’s willingness to accept redacted records and keep the contents of those records confidential. Accordingly, the IELRB found that the Board committed an unfair labor practice and ordered the Board to turn over the two students’ records. The Board appealed.

The Illinois Appellate Court explained that while educational employers have a duty to bargain in good faith, which includes an obligation to provide the union with information upon request, the duty to provide information is not absolute. The information must be relevant and reasonably necessary to the union’s performance of its responsibilities. Additionally, even relevant information may be withheld where an employer asserts an affirmative defense to production, such as confidentiality concerns or the need for employee privacy. Here, the court had to determine whether the Student Records Act prohibited the disclosure of the records notwithstanding their relevance. This case was the first time an Illinois court has evaluated the merits of a statutory defense to the production of documents in a published opinion.

In its review of the Student Records Act, the court noted that the Act does not categorically prohibit the release of school student records. Rather, the Act allows the release of records in certain circumstances, including pursuant to a court order. The court explained that the option of having a subpoena enforced by court order balanced the interests of the bargaining representative in obtaining all relevant information and the interests of the educational employer in protecting the confidentiality of sensitive student records. It also explained that the parties did not have the authority to agree on procedures for releasing protected student records because to do so would abrogate the statutory right of parents to challenge the release of such records. On those grounds, the Illinois Appellate Court reversed the decision of the IELRB, which had ordered the Board to turn over the students’ records.

Whitt Law attorneys have experience assisting clients with collective bargaining, handling grievance proceedings, and complying with the Illinois School Student Records Act. If you have questions regarding any of those topics, please feel free to contact Whitt Law Attorney Rick Petesch, Partner.