Non-personnel records in employees' files not exempt

From the Winter 2000 issue of The News Media & The Law, page 10.

In determining whether a document is a personnel record that may be exempt from public disclosure, the state Supreme Court in October looked not to the document's placement in a personnel file but to the document's content.

A record must pertain to an individual employee and be of a kind normally maintained in a personnel file for it to be exempt under the public records law. A report about an investigation into allegations of stealing by school employees is not a personnel record that the exemption was intended to protect.

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During the middle of 1993, officials with a Portland school district began to suspect several district employees of stealing and misappropriating school property. An ensuing investigation -- and subsequent report by the school district's internal police department -- led to the firing or retirement of at least three district employees, including a high school principal and vice principal. The high school principal announced his retirement to his staff through a letter, which was quoted in The (Portland) Oregonian by reporter Erin Hoover Schraw.

The newspaper then made a request under the open records law for all records from the school police investigation. The district initially denied the request, stating the documents were personnel records that could be kept secret under an exemption to the state's open records law. It later released a copy of the principal's resignation letter because most of its contents already had been publicly disclosed, but the school continued to withhold the report on its internal investigation.

In late 1993, the newspaper filed suit in state court for access to the report. The trial court and an intermediate appellate court both decided in favor of the newspaper. The school district appealed to the state Supreme Court in Salem and ultimately spent $88,000 in public money defending the suit, according to figures reported in the Oregonian.

The school district maintained in a brief filed with the Supreme Court that the report was a personnel record covered by an exemption to the open records law. Even though the public may have an interest in knowing about theft at the public schools, releasing the report would violate the personal privacy of the employees who had been investigated, the school district argued.

But in its Supreme Court briefs, the newspaper urged the court to recognize that when it comes to theft of public resources by government employees, the public's right to know trumps the employees' privacy rights. Allowing the school district to hide incriminating or embarrassing information simply by labeling it a personnel record would contravene the open records law's broad presumption in favor of disclosure, the newspaper asserted.

The law's personnel record exemption "cannot reasonably be construed as granting school districts carte blanche to restrict access to other types of materials, which are not directly related to the evaluation process, simply by designating them for inclusion in a teacher's personnel file," the newspaper argued. The exemption "must be interpreted as authorizing school districts to regulate access to personnel records, but not as authorizing them to create an absolute bar to public disclosure of every document that may be placed in a personnel file, in circumstances where 'the public interest requires' disclosure of a particular document."

The newspaper also argued that the school district had waived its right to even raise the personnel records exemption because much of the underlying information already had been released to the public. The school district disputed this assertion, claiming instead that a waiver would have occurred only if the actual report had been released, not just the information contained within it.

In its October 1999 decision, the Supreme Court sidestepped the issue of waiver, ruling that an exemption to the records law could be raised -- or waived -- only if the record were covered by the exemption in the first place. The report, the court ruled, is not a personnel record and must be made public under the open records law.

The court did not accept the district's argument that a document's placement in a personnel file, or its labeling as a personnel record, was sufficient to exempt it from disclosure. The court looked to standard definitions of "personnel records," finding the exemption was intended to apply only to those records that involve individual employees and are kept in those employees' individual government files. The exemption does not apply to any file that is labeled as "personnel records."

"The investigation report does not address an individual school district employee's terms and conditions of employment," Justice Theodore Kulongoski wrote for the court.

Because the report addressed the issue of theft by school employees generally and did not mention particular workers, their employment conditions or possible sanctions against them, it is not a personnel file, the court ruled. Labeling the report a "Personnel Investigation," as the school district had done, is not sufficient to make the report a personnel record. (Oregonian Publishing Co. v. Portland School District No. 1)