‘Comp time’ records for state employees must be disclosed

Information about the so-called “comp time” of state employees is a public record and not covered by the personnel record exemption to the state open records law, the state Supreme Court held in August.

Moreover, supplying information about the amount of comp time state employees have earned with only their employee numbers as identification — and not their actual names — does not satisfy the open records laws.

Rex Harvey, an attorney for the Mississippi Wildlife Enforcement Officers’ Association, in July 1996 requested from the state Department of Wildlife, Fisheries and Parks an alphabetical list of all employees and their accrued comp time as of July 1, 1996. The department provided a list of the names and accrued comp time for 391 employees as of Aug. 1, 1996.

Later that month, Harvey followed up his original request for the names and comp time for all employees since July 1. This time, the agency’s director, Sam Polles, responded and released the names of all employees. He declined to release the information about the amount of comp time they had earned, however, because the personnel record exemption to the open records law prevented their release, he said. In October, Harvey again urged the director to release all the requested information.

Harvey, on behalf of the officers’ association, filed suit in a state trial court in Jackson in February 1997 and alleged that the records denial violated the state open records law.

In April 1997, however, the department reversed course and released the amount of comp time workers had earned — but without naming the workers who had earned each amount of compensation. The information was listed by employee numbers.

The suit proceeded, and the trial judge granted the officers’ association judgment in July 1997, finding that the entire passel of comp time records was public and awarding $100 in civil penalties and attorney fees. The department subsequently challenged the ruling.

Before the state Supreme Court in Jackson, the department challenged the award of attorney fees and the imposition of a civil penalty. The department argued that it had, in fact, complied with the request when it supplied the information about employee comp time in April — without the employees’ names. It explained that to provide more information would have been a violation of the employees’ privacy rights.

The department argued that it complied with the request for information in a way that balanced the public interest in access to public records with the privacy interests of department employees.

It added that if a violation occurred, the department did not act intentionally. In fact, the department asserted it believed the records law did indeed prevent disclosure. The department explained that the definition of a personnel record was unclear and that several state attorney general opinions suggested information about comp time was covered by the exemption.

The association, however, asserted that the department’s privacy argument was without merit. It argued that the attorney general opinions the department cited interpreted different exemptions to the records law. More importantly, the association argued the records law requires broad disclosure of government information and narrow applications of exemptions. Because the personnel exemption had never been defined to include information about comp time, the association argued, that exemption did not apply and the information was public, and with no authority to justify its denial, the department acted knowingly when it denied the association’s request.

“It is . . . clear that the Mississippi Department of Wildlife, Fisheries and Parks did not have a legitimate, arguable basis for denying the public records request; it acted in disdain of the public language of the Act, in contravention of the opinions of its legal counsel, the Mississippi Attorney General, and in disregard of the great weight of the legal authority from across the country,” the association stated.

In August, the state Supreme Court affirmed the trial court’s ruling and award of civil penalties and attorney fees in an opinion that echoed the association’s brief.

The personnel information exemption to Mississippi’s open records law must be narrowly construed, like all other exemptions, and the preference for disclosure generally favored, the court ruled.

The personnel record exemption cannot be used to prevent the release of records of comp time earned by state employees, the court stated. Because no statutory authority or case law suggesting otherwise exists, a public agency that denies such a request would be liable for civil penalties and the other side’s attorney costs, the court ruled.

The court must “keep in mind the broad public policy goals at work in this case. . . . There is no argument that accrued comp time can be paid out of the public treasury, and that this forms a part of the public employee’s compensation benefits.” Therefore, the trial court did not err in finding that the association was entitled to the information requested, the court ruled. (Mississippi Dep’t of Wildlife, Fisheries and Parks v. Mississippi Wildlife Enforcement Officers’ Ass’n)