Issue: Compliance; Documents; Ruling date May 25, 2001; Ruling #2001-080; Agency: Charitable Gaming Commission; Outcome: In Compliance, Agency.

COMMONWEALTH of VIRGINIA

In the matter of Charitable Gaming Commission

May 24, 2001

EDR Ruling #2001-080

The grievant has requested that this Department rule on whether the Charitable Gaming Commission (CGC) has complied with this Department’s March 30, 2001 ruling (#2001RR) regarding documents requested relative to his November 1, 2000 grievance.

The grievant was employed by CGC.¹ On November 1, 2000, he initiated a grievance with CGC challenging the elimination of his position, among other issues. The following day, the grievant requested under the Freedom of Information Act (FOIA) certain documents and information relating to his grievance. The agency responded to the request by stating that it would "determine if any documents exist per the scope of [his] request."² The agency further explained that "the retrieval of any emails will cost approximately $1,000.00 for every month reviewed." The agency also informed the grievant that the costs associated with any such retrieval would have to be borne by the grievant and be paid in advance.³

On November 16, 2000, the grievant requested from the agency, pursuant to the grievance procedure, much of the same information that he originally asked for under his FOIA request. On the same day, he informed the agency that before he proceeded further, he intended to seek assistance from this Department. He subsequently submitted a request for a compliance ruling to this Department on November 16, 2000. As of the date of the issuance of this Department’s original ruling on March 30, 2001, the grievant had not received any of the requested documents pursuant to FOIA or the grievance procedure.

On March 30, 2001, this Department issued a ruling in which the agency was "directed to conduct a reasonable search to obtain the requested documentation." The agency was further instructed: "After a reasonable search, the agency must respond to the grievant’s requests by either providing the requested documents or a specific written explanation as to why any of the requested information will not be provided (e.g., no such documents exist, the documents exist but are protected by a legal privilege, the documents would be overly burdensome to collect)."

On April 9, 2001, in response to this Department’s ruling, the agency provided the grievant with numerous documents. In addition, the agency stated that its electronic data storage system maintains retrievable data for a seven-day period, and that "inquiries with former Commission employees failed to identify any e-mails that were generated during these time frames in reference to your request."

On April 18, 2001, the grievant requested a compliance ruling from this Department. He based his request on the following four assertions: (1) the agency has not approached his information requests in good faith; (2) the agency had earlier indicated that it had 12 months worth of computer tapes and that retrieval of e-mails from those tapes would cost $12,000.00; (3) the agency has a statutory requirement to maintain records; and (4) the agency shredded documents following initiation of the grievance.

In the March 30, 2001 ruling, this Department held that if the grievant was dissatisfied with management’s response to his request – its production of documents, its written response to his request, and/or the stated cost -- he could raise the issue again at the qualification phase of the grievance. Furthermore, this Department noted that if the grievance was qualified for hearing, the issue could be raised again, if need be, at a prehearing conference with the hearing officer. Moreover, this Department concluded that absent just cause, the agency’s failure to provide the grievant with any of the requested documents could result in adverse inferences drawn against the agency during the qualification and/or hearing stages. The ruling explained that if documents are withheld absent just cause, and those documents could resolve a disputed material fact pertaining to the grievance, this Director at the qualification stage or a hearing officer at the hearing stage could resolve the factual dispute in the grievant’s favor.

This Department acknowledges the grievant’s assertion that his lack of documents could hamper his opportunity to fully address issues prior to the qualification phase of the grievance. However, once a grievance is advanced to the qualification phase, the issues raised in the grievance are thoroughly examined along with all supporting evidence. At such time, this Department is better positioned to determine any document-related disputes, for example, whether the requested documents are material to the grievance. Thus, further challenges to the agency’s document production may be raised by the grievant when he asks this Department to rule on qualification of his grievance.⁴

Upon receipt of this ruling, parties are ordered to resume the November 1, 2000 grievance at the point at which it was halted as a result of the grievant’s April 18, 2001 ruling request. Any additional issues concerning the production of documents may be raised at the qualification stage of the grievance, and if the grievance is qualified, with the hearing officer at the prehearing conference. This Department’s rulings on matters of compliance are final and nonappealable.⁵

Neil A.G. McPhie, Esquire
Director

William G. Anderson, Jr.
Employment Relations Consultant