M. Personnel records.

Access to the personnel records of public employees is generally governed either by the basic public records act, AS 40.25.110 et seq., subject to arguments based on constitutional privacy rights or local ordinances, or, for certain classes of state employees, by AS 39.25.080. AS 39 was amended in 1982. It previously provided that all information concerning public employees of the state was disclosable unless specifically exempted. The 1982 amendment reversed the presumption, and prohibits disclosure of personnel records of certain classes of employees except for their name, salary, job classification, and history. Applications are not disclosable.

Who is covered by AS 39.25.080? The question is important because the press has taken the position that if the employee is not specifically covered by the public employee act limitations referred to above, their records are presumptively subject to disclosure pursuant to the general public records law. Specifically, the press has argued that the limitations on access apply only to classified employees, and not to the exempt and partially exempt employees identified in other subsections of the law, as a matter of statutory construction. In 1986, the Supreme Court endorsed this position in Doe v. Superior Court, 721 P.2d 617 (Alaska).

Note that AS 39 only applies to state employees. Records concerning municipal employees are not exempt under Title 39, and courts have rejected attempts to apply the restrictions of Title 39 by analogy, or on equal protection grounds. See, e.g., Anchorage Daily News v. Municipality of Anchorage, and Jack Chapman, Intervenor, Case No. 3AN-85-1254 Civ. (Superior Court, 3rd Jud.Dist. at Anchorage) (1990 proceedings seeking access to personnel records of police officer who falsified employment application. Court ordered officer's entire personnel file turned over to newspaper, due to the circumstances of the case. Chapman's appeal was dismissed).

At least one superior court judge has held, in a civil suit against a state classified employee law enforcement officer who fatally shot a juvenile after a high speed chase, that AS 39.25.080 did not bar disclosure of personnel records to the plaintiff through the pretrial discovery process, and, given this, that press access to the records should also be allowed. Estate of Jason P. Daniel v. Gressett, Anchorage Daily News, Intervenor, Case No. 3AN -90-8291 Civ. (Superior Court, 3rd Jud. Dist. at Anchorage, Memorandum and Decision dated June 17, 1991). In both the Chapman and Gressett cases, the court allowed access to "personnel"-related information in the files of the Anchorage Police Standards Council, over objections that the regulations governing the Council specifically provide for confidentiality of such records. The Daily News argued that AS 40.25.120 provides for nondisclosure based on other legal requirements only in the case of federal law and regulations, and state laws — not "state laws or regulation." If it were otherwise, administrative agencies, and not the state legislature, would determine what should or should not be public. The courts concurred and ordered disclosure.

In Alaska Wildlife Alliance v. Rue, 948 P.2d 976 (Alaska 1997), the Alaska Supreme Court upheld a ruling denying disclosure to a wildlife group of the names of employees and contractors involved in a wolf control program. The Court found that, under the circumstances, the presumptive right of access pursuant to the Public Records Act must yield to Alaska's constitutional privacy provision, Art. I, sec. 22. It said the workers had a legitimate expectation that their names would not be revealed after they received credible threats of death or bodily injury from opponents of the program, and those seeking the records had not provided justification for overcoming this concern. 948 P.2d at 980. The Court noted that the agency might well have had to "bear a significant burden to show that the threats are both real and credible" if the group requesting the records had contested the existence or credibility of such threats, but it did not. Id. n. 5. The wildlife group also sought timesheets. The Court noted that the question whether time sheets are "state personnel records," exempt from disclosure pursuant to AS 39.25.080 had not been considered before, and it construed the statute narrowly to mean that information, even in the personnel file, that tells little about the individual's personal life, but instead simply describes employment status, does not fall within the exemption. Id. Since time sheets indicate merely the hours worked for a public employer, they are not subject to the confidentiality provisions of AS 39.25.080.

Significantly, in both Rue and International Ass'n of Firefighters, Local 1264 v. Municipality of Anchorage and Anchorage Daily News, 973 P.2d 1132, 1135 (Alaska 1999), the Court made clear that simply because documents or information may appear in, or be placed in, an employee's personnel file, does not mean they are exempt as "personnel records." The term "personnel record" is defined narrowly to include only information that reveals the details of an individual's personal life.

Other decisions of the Alaska Supreme Court and superior courts have also liberally construed the right of access to records in various contexts to permit or require disclosure of personnel records in connection with alleged wrongdoing by public employees. See, for example, Jones v. Jennings, 788 P.2d 732 (Alaska 1990) (personnel file of police officer being sued by pro se litigant was required to be disclosed, subject to in camera inspection for redaction of sensitive personal information not needed by the plaintiff) and see Ericson v. University of Alaska and Anchorage Daily News, 23 Media Law Rptr. 1724 (Ak. Super. Ct., 3rd Jud. Dist. at Anchorage, 1994) (university required to disclose documents relating to termination of employment relationship with former athletic training arising from misconduct allegations, notwithstanding the university employee's assertions of constitutional privacy interests and claiming the protection of AS 39.25.80, among other things). See also Municipality of Anchorage v. Anchorage Daily News, 794 P.2d 584, 595, n.13 (Alaska 1990) (Alaska Supreme Court stated that performance evaluations of public officials who exercise discretion in their duties are, as a matter of law, subject to release as public records).