N. Personnel records
In Stone v. Consolidated Publishing Co., 404 So. 2d 678 (Ala. 1981), the Alabama Supreme Court included "sensitive personnel records" as one category of records that might not be open to public disclosure, depending upon the facts of the case, despite the absence of an express statutory exclusion of such records from the Public Records Act. Notwithstanding that invitation for exclusion, most personnel records should be presumptively open.
Examples of records and information that are not "sensitive personnel records" include: Advertiser Co. v. Auburn Univ., 17 Media L. Rep. (BNA) 1907, 1909 (Cir. Ct. Lee Cnty., Ala., Mar. 29, 1990) (investigatory report by attorneys into alleged wrongdoing of public official not information "from a personnel record"; sensitivity of information sought is not dispositive); Birmingham Educ. Ass'n v. Birmingham City Bd. of Educ., CV 94-2637 at 4 (Cir. Ct. Jefferson Cnty., Ala., Nov. 15, 1995) (lists of employee names for transfer, nonrenewal of contract, cancellation of contract, suspension, or dismissal are not "sensitive personnel records" despite "potential for some embarrassment to employees whose names appear on the list"); Univ. of Montevallo Educ. Ass'n v. Vickery, CV 86-121 (Cir. Ct. Shelby Cnty., Ala., Nov. 2, 1987) ("Official Appointment Form," "Appointment Form, Limitations and Contingencies," "UM Fringe Benefits, A Worksheet," and "Job Description" regarding state university employees ordered disclosed) (affirmed without opinion in Vickery v. Univ. of Montevallo Educ. Ass'n, 527 So. 2d 125 (Ala. 1988)); 227 Op. Att'y Gen. Ala. 60 (June 11, 1992) (names, titles, and compensation of county employees are not sensitive personnel records); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) ("In general, applications, disciplinary actions, and memoranda of reprimand are documents reasonably necessary to conduct business, and thus subject to disclosure" as are salary expenditure, race, current assignment, rank and type of teaching certificate, employment experience record, employee's salary, areas of endorsement, sex, date of hire, date employee attained tenure).
Examples of records and information that may be "sensitive personnel records" include: Advertiser Co. v. Montgomery Cnty. Bd. of Educ., CV-05-389 (Cir. Ct. Montgomery Cnty., Ala., Oct. 7, 2005) (refusing to hold that names of employees put on paid administrative leave are necessarily subject to public disclosure, but recognizing that disclosure could be required in some situations); Mobile Press Register Inc. v. Jordan, CV 95-1593 at 3-4 (Cir. Ct. Mobile Cnty., Ala., June 2, 1995) (proposed organizational chart of superintendent presented to school board "as of this date is 'sensitive personnel record'"); Blankenship v. City of Hoover, 590 So. 2d 245, 250 (Ala. 1991) (W-2 forms of public employees are sensitive personnel records in that they "would disclose whether or not an individual employee has elected to participate in income-deferral plans, insurance plans, or similar benefits which are more personal than public in nature") (quoting trial court opinion); Op. Att'y Gen. Ala. No. 88-00079 at 4 (Dec. 16, 1987) ("information such as psychological evaluations, family history, religious affiliation or political opinions or activities" could be sensitive personnel records); 212 Op. Att'y Gen. Ala. 26, 27 (Aug. 1, 1988) (employees' home address is private matter); Op. Att'y Gen. Ala. No. 96-00003 at 4, 1995 Ala. AG LEXIS 59 (Oct. 4, 1995) (marital status, medical history, confidential recommendations for employment, and drug or alcohol testing results "will, in most cases, fall under the sensitive personnel records exception set out in Stone . . . [but] the party refusing to disclose should remember it has the burden of proving the information requested falls within an exception to the Open Records Act"); Op. Att'y Gen. Ala. No. 2001-269, 2001 Ala. AG LEXIS 165 (Aug. 29, 2001) ("Information such as an employee's marital status, medical history, confidential recommendations for employment, and drug or alcohol testing results will, in most cases, fall under the sensitive personnel records exception in Stone.").
Alabama Code § 36-26-44 (2001) provides that the records of the State Personnel Department and Merit System shall be open to the public except for such records as the Department's rules require to be confidential by reason of public policy. The Department's rules provide as follows:
“The records of the Department are public records and are open to public inspection during normal working hours,” Ala. Admin. Code r. 670-x-17-.03, but the following shall be confidential: (a) Applications for examination of persons who have not been employed; (b) Lists of eligibles who have competed successfully on examinations; (c) Test materials such as written tests or forms or instructions which if known to an applicant might give him an advantage in competing for appointment or promotion; (d) any information listed in Ala. Code § 41-13-7; and (e) any recorded information received by a public officer in confidence, sensitive personnel records, pending criminal investigations, and records which, if disclosed, would be detrimental to the best interest of the public. See id.
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. The Alaska Supreme Court has recognized that a general privacy interest in personnel files must be balanced against other interests. Applying this balancing test to the request for production of the officers' personnel files, the Court concluded that the officers' privacy interests were outweighed by the need to “insure that police behavior conforms to the code of conduct required of a democratic society.” Jones v. Jennings, 788 P.2d 732, 739 (Alaska 1990). See also, Henry v. Municipality of Anchorage, Case No. 3:15-cv-187-RRB, U.S. D.Ak., Dkt. 918, Order As To Motions Regarding Access To Brown Report And Related Judicial Records, issued September 25, 2018) (granting Anchorage Daily News and KTUU-TV motion for access to internal investigation report that resulted in termination of former Anchorage Police Department lieutenant).
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, supra (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, 1995 WL 444416, 23 Media Law Rptr. 1724 (Ak. Super. Ct., 3rd Jud. Dist. at Anchorage, May 12, 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).
With respect to other information in personnel records, the Arizona Supreme Court has found that individuals’ privacy interests can put portions of public personnel files beyond the reach of A.R.S. § 39-121 if those interests outweigh the public’s right of inspection. See Scottsdale Unified Sch. Dist., 191 Ariz. at 302-03, 955 P.2d at 539-40 (determining that the public interest in disclosure of the teachers’ birth dates was speculative and did not override the privacy interest of the teachers); Bolm, 193 Ariz. at 39-40, 969 P.2d at 204-05 (finding that the trial court appropriately concluded that the police department’s hiring and official records, but not personnel evaluations or internal affairs records, were subject to disclosure).
The FOIA exempts personnel records “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” Ark. Code Ann. § 25-19-105(b)(12). However, employee evaluation and job performance records are open to the public “only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” Ark. Code Ann. § 25-19-105(c)(1). For a more thorough discussion, see Part II.A.2(13) of this outline.
Personnel files, except applications for employment, employment contracts, and performance ratings, are expressly exempted from inspection by Colo. Rev. Stat. § 24-72-204(3)(a)(II).
"Personnel files," as defined by Colo. Rev. Stat. § 24-72-202(4.5), means and includes home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship, including other documents specifically exempt from disclosure by law. Only information that is similar in nature to an employee's home address, telephone number and personal financial information is properly classified as "personnel file." Daniels v. City of Commerce City, 988 P.2d 648, 651 (Colo. App. 1999).
"Personnel files" as defined by Colo. Rev. Stat. § 24-72-202(4.5) does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under Colo. Rev. Stat. § 23-5-123, or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions. See Freedom Newspapers Inc. v. Tollefson, 961 P.2d 1150 (Colo. App. 1998).
"Personnel files" as defined by Colo. Rev. Stat. § 24-72-202(4.5) also does not include records of an employee's absence from the workplace, including the reason given for the absence. Jefferson Cty. Educ. Assoc. v. Jefferson Cty. Sch. Dist., 378 P.3d 835, 839 (Colo. App. 2016) (requiring disclosure of records showing names of high-school teachers who reported in sick on particular days).
This exemption applies only to documents actually present in an employee's personnel file. Denver Post v. Univ. of Colo., 739 P.2d 874, 878 (Colo. App. 1987). A public employer cannot restrict access to documents which are otherwise public records merely by placing them in an employee's personnel file. Denver Publ'g Co. v. Univ. of Colo., 812 P.2d 682 (Colo. App. 1990).
Personnel records that are not present in an employee's file but which involve privacy rights may be withheld from inspection only upon a showing in court that disclosure would do substantial injury to the public interest by invading the employee's constitutional privacy rights. Denver Post v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987).
District of Columbia
Certain personnel records are arguably exempt under the privacy exemption, D.C. Code Ann. § 2-534(a)(2). Cf. In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications and work experiences of successful job applicants but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references about successful applicants or any information regarding unsuccessful job applicants).
The Florida Supreme Court in Douglas v. Michel held there is no state or federal constitutional right of privacy in hospital personnel records in the context of the public records law. 464 So. 2d 545 (Fla. 1985); see also Gadd v. News-Press Publ’g Co., 412 So. 2d 894 (Fla. 2d DCA 1982) (a newspaper is entitled under Chapter 119 to inspect the personnel files of present and past staff physicians of a public hospital). Personnel records of other public employees have also generally been considered public records subject to disclosure. See, e.g., Lewis v. Schreiber, 611 So. 2d 531 (Fla. 4th DCA 1992) (salary information subject to inspection); Shevin v. Byron, Harless, Schaffer, Reid & Assocs., 379 So. 2d 633 (Fla. 1980) (resumes subject to inspection); Clark v. Walton, 351 So. 2d 353 (Fla. 4th DCA 1977) (city clerk obligated by the public records law to furnish union organizer with names and addresses of all city employees); Warden v. Bennett, 340 So. 2d 977 (Fla. 2d DCA 1976) (labor organization is entitled to obtain records containing names and address of employees of public college); Beaulieu v. Bd. of Trs. of Univ. of W. Fla., 2007 WL 2900332, at *8 (N.D. Fla. Oct. 2, 2007) (holding that a party cannot demand the destruction of public records contained in their personnel file which are open to disclosure). However, employee medical records are generally exempt from disclosure. See Fla. Stat. § 112.08(7) (2020) (exempting all medical records relating to employees enrolled in a group insurance plan); News-Press Publ’g Co. v. Kaune, 511 So. 2d 1023 (Fla. 2d DCA 1987) (reports of physical examinations of fire fighters performed pursuant to contract with city not subject to disclosure).
Law Enforcement Personnel Records. Access to certain personnel records of law enforcement officers is more restricted than access to the records of other public employees. For example, complaints filed against law enforcement officers or correctional officers with a law enforcement agency or correctional agency and information obtained pursuant to the agency’s investigation are confidential until the conclusion of the internal investigation or until the investigation ceases to be active without a finding relating to probable cause. Fla. Stat. § 112.533(2)(a) (2020). Similarly, in Fraternal Order of Police v. Rutherford, internal investigations of the Jacksonville Sheriff’s Office’s Response to Resistance Board, conducted when an officer uses force, were deemed subject to the confidentiality provisions of sections Fla. Stat. §§ 112.532(4)(b) and 112.533(2)(a), which are exemptions from the public’s general right to access public records and meetings under article I, § 24 of the Florida Constitution and Fla. Stat. § 119.01(1). 51 So. 3d 485 (Fla. 1st DCA 2011). These confidentiality provisions apply only during the period of the investigation and do no prohibit public access, but merely delay it until the investigation is completed or abandoned. See also AXA Equitable Life Ins. Co. v. Sands, 2006 WL 5217762 at *1 (N.D. Fla. Oct. 2, 2006) (expressing that under Chapter 119 the defendant could depose the state medical examiner as soon as the current criminal investigation is concluded).
However, Florida courts have distinguished the acquisition of public documents under Chapter 119 from a party’s discovery rights to access materials through judicially-created rules of procedure. See Reiser v. Wachovia Corp., 2007 WL 1696033 at *2 (M.D. Fla. June 12, 2007) (citing Wait v. Fla. Power & Light Co., 372 So. 2d 420, 425 (Fla. 1979)); B.B. v. Dep’t of Child & Family Servs., 731 So. 2d 30, 34 (Fla. 4th DCA 1999); see also Dekaurentos v. Peguero, 47 So. 3d 879 (Fla. 3d DCA 2010) (Fla. Stat. § 119.071(4)(b) does not exempt police officers’ pre-employment psychological evaluations from disclosure in discovery in a wrongful death action because the statute does not create a privilege that would insulate medical records from discovery in litigation).
Furthermore, the home address, telephone numbers and photographs of active or former law enforcement personnel, their spouses and children, as well as the places of employment of spouses and children and the names and location of schools attended by their children are closed. Fla. Stat. § 119.071(4)(d)(2) (2020). (See Section O.7. below regarding the disclosure of the names of law enforcement officers).
Public School Employee Records. Access to certain public school system employee personnel files is statutorily limited. For example, complaints and any material relating to the investigation of a complaint against an employee are confidential until the conclusion of the preliminary investigation or until the preliminary investigation ceases to be active. Fla. Stat. §§ 1012.31(3)(a)1 (2020); 1012.796(4) (2010). In addition, employee evaluations are confidential until the end of the school year immediately following the school year during which the evaluation was made. Fla. Stat. § 1012.31(3)(a)2 (2004). However, the “value added” measurement, which denotes the difference in the number a student actually received on the FCAT from what the score student was projected to receive, which is only part of a teacher’s annual evaluation, is not exempt from disclosure. Morris Publ’g Grp., LLC v. Fla. Dep’t of Educ., 133 So. 3d 957, 960-61 (Fla. 1st DCA 2014). Payroll deduction records of a school employee are confidential, as are an employee’s medical records. Fla. Stat. §§ 1012.31(3)(a)4-5 (2004).
Personnel files of faculty and administrators of institutions of higher learning are exempt from inspection. Fla. Stat. § 240.253. Records reflecting evaluations of performance may be viewed only by the employee and university officials. Cantanese v. Ceros-Livingston, 599 So. 2d 1021 (Fla. 4th DCA 1992). The statute allows regulations of the Board of Regents to prescribe the content and custody of limited access records which an institution in the state university system may maintain on its employees. Such records are limited to information reflecting evaluations of employee performance and are open for inspection only by the employee and by officials of the university who are responsible for supervision of the employee. See Tallahassee Democrat v. Fla. Bd. of Regents, 314 So. 2d 164 (Fla. 1st DCA 1975); Op. Att’y Gen. Fla. 73-212A (1973). The Legislature again amended this section to permit each university to prescribe the content and custody of limited access records which that university may maintain on its employees. Fla. Stat. § 1012.91 (2003). Such records are also limited to information reflecting evaluations of employee performance.
The Act does not exempt personnel records. Goddard v. City of Albany, 285 Ga. 882, 886, 684 S.E.2d 635, 640 (2009) (personnel records are not entitled to any blanket exemption from Georgia's Open Records Act); Fincher v. State, 231 Ga. App. 49, 497 S.E.2d 632 (1998) (same); see also Hackworth v. Bd. of Educ., 214 Ga. App. 17, 447 S.E.2d 78 (1994).
Personnel records are only partially open to the public, as provided in Idaho Code § 74-106(1). In Federated Publications Inc. v. Boise City, 128 Idaho 459, 915 P.2d 21 (1996) the Idaho Supreme Court held that the term “applicant” in the provision of public records laws exempting from disclosure certain personnel information refers to an applicant for a position as a public employee. The Court noted that the exemption does not apply to applicants for appointment to vacancies in the city council. Id. The Court also found that administrative review of a police shooting incident, which reviewed policies and training and determined completeness of internal discipline procedures was not exempt from disclosure under the public records laws under Idaho Code § 9-340C(1) [now Idaho Code § 74-106(1)]. Id. In Cowles Publishing Co v. Kootenai Co. Bd. of Commissioners, 144 Idaho 259, 159 P.3d 896 (2007), the Idaho Supreme Court rejected an argument that e-mail messages, of a personal nature, sent between an elected public official and a public employee were exempt personnel records. The Court held “although the e-mails may be a form of correspondence, they are not the type of communication the legislature meant to exempt in Idaho Code § 9-340C(1) [now Idaho Code § 74-106(1)]. . . . The legislature meant to exempt only those types of correspondence typically found in a personnel file – for instance, a letter of recommendation, formal correspondence between a superior and employee, or a letter commenting favorably or disfavorably on an employee’s professional conduct.” Id., 144 Idaho at 264-265. Personnel records have been a frequent point of conflict between public agencies and persons requesting such information.
Public agencies have the discretion to refuse to disclose personnel records to anyone other than the employee or his representative. Ind. Code § 5-14-3-4(b)(8); see also S. Bend Tribune v. S. Bend Cmty. Sch. Corp., 740 N.E.2d 937, 938–39 (Ind. Ct. App. 2000) (holding that information regarding candidates for the Superintendent fell within this exception). However, the following information must be disclosed to the public: the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, dates of first and last employment of present or former officers or employees of the agency, information relating to the status of any formal charge against the employee, and factual information about disciplinary actions in which final action has been taken and resulted in the employee being disciplined. Id.
All personnel file information is available to the affected employee or his representative. See Att’y Gen. Op. 87-16 (1987) (employment contract of any public official or employee available for inspection or copying upon request). This subsection does not apply to disclosure of personnel information generally on all employees or for groups of employees without the request being particularized by employee name.
Iowa Code § 22.7(11) addresses the confidentiality of personnel records:
a. Personal information in confidential personnel records of government bodies relating to identified or identifiable individuals who are officials, officers, or employees of the government bodies are confidential. However, the following information relating to such individuals contained in personnel records shall be public records:
(1) The name and compensation of the individual including any written agreement establishing compensation or any other terms of employment excluding any information otherwise excludable from public information pursuant to this section or any other applicable provision of law. For purposes of this paragraph, "compensation" means payment of, or agreement to pay, any money, thing of value, or financial benefit conferred in return for labor or services rendered by an official, officer, or employee plus the value of benefits conferred including but not limited to casualty, disability, life, or health insurance, other health or wellness benefits, vacation, holiday, and sick leave, severance payments, retirement benefits, and deferred compensation.
(2) The dates the individual was employed by the government body.
(3) The positions the individual holds or has held with the government body.
(4) The educational institutions attended by the individual, including any diplomas and degrees earned, and the names of the individual's previous employers, positions previously held, and dates of previous employment.
(5) The fact that the individual was discharged as the result of a final disciplinary action upon the exhaustion of all applicable contractual, legal, and statutory remedies.
b. Personal information in confidential personnel records of government bodies relating to student employees shall only be released pursuant to 20 USC § 1232g.
Iowa Code § 22.7(11).
This section applies only to personal information in confidential personnel records. City of Dubuque v. Tel. Herald Inc., 297 N.W.2d 523, 526 (Iowa 1980). In determining whether information sought is personal information protected by right of privacy, balance public interest served by disclosure and private interest in protecting against invasion of privacy. Id. at 526-27, Applications for appointive city officer were not protected by this section. Id. at 527. But see Iowa Code § 22.7(18).
Ordinarily, information which includes one's name, address, employer, education, training and experience is not considered "personal." 81 Op. Att'y Gen. 3, 5 (Jan. 19, 1981). Lists of state employees participating in deferred compensation plans are public records, but extent of individual participation in plans is personal and confidential. 74 Op. Att'y Gen. 430, 433 (Feb. 27, 1974).
This subsection has also been construed to make settlement agreements between public bodies and employees public records. Des Moines Indep. Cmty. Sch. Dist. Pub. Records v. Des Moines Register & Tribune Co., 487 N.W.2d 666, 669 Iowa (1992) ("[T]he outstanding characteristic of the settlement agreement was the fact that public funds were being paid to settle a private dispute. We think the document was of the type the legislature designated for disclosure."). See also Iowa Code § 22.13 ("When a government body reaches a final, binding, written settlement agreement that resolves a legal dispute claiming monetary damages, equitable relief, or a violation of a rule or statute, the government body shall, upon request and to the extent allowed under applicable law, prepare a brief summary of the resolution of the dispute indicating the identity of the parties involved, the nature of the dispute, and the terms of the settlement, including any payments made by or on behalf of the government body and any actions to be taken by the government body. A government body is not required to prepare a summary if the settlement agreement includes the information required to be included in the summary. The settlement agreement and any required summary shall be a public record.").
Compensation allocated to and used by individual public employees, whether for salary, sick leave or vacation, is a matter of legitimate concern to the public. So long as the information disclosed does not reveal personal medical conditions or professional evaluations, the public has the right to examine it. Clymer v. City of Cedar Rapids, 601 N.W.2d 42, 48 (Iowa 1999).
A custodian shall deny inspection of a personnel record of an individual, including an application, performance rating, or scholastic achievement information to anyone other than the person in interest or an elected or appointed official who supervises the work of the individual. § 4-311(a). Information relating to the performance evaluation of judges and information about a claim filed against an employee is not subject to disclosure. See 79 Op. Att'y Gen. 179, 181(1994); 78 Op. Att'y Gen. 297, 299-300 (1993). The purpose of treating personnel records as confidential is "to preserve the privacy of personal information about a public employee accumulated during his or her employment." Baltimore City Police Dep't v. State, 158 Md. App. 274, 282, 857 A.2d 148, 153 (2004) (citing 78 Op. Att'y Gen. 291, 293 (1993)). See also 65 Op. Att'y Gen. 365 (1980). There must be a concrete nexus between the official and the employee before the official is allowed access to the employee's personnel record. Id.
However, the Maryland Court of Appeals has established that employment contracts themselves do not come within this exception and are therefore subject to disclosure because they are not in the nature of a performance evaluation. University System of Maryland, et al., v. The Baltimore Sun Company, 381 Md. 79, 102, 847 A.2d 427, 441 (2004) (rejecting the University's argument that employment contracts it had with athletic coaches came within the exemption for personnel records found in § 4-311(a)). See also PIA Manual, at 3-10. The Court further stated that any side letter or documents reflecting the total compensation and sums of monies paid directly by the University to its coaches must be disclosed. University System of Maryland, 381 Md. at 103.
It has also been established that directory-type information concerning agency employees is not a "personnel record" under § 4-311(a). Prince George's County v. Washington Post Co., 149 Md. App. 289, 324, 815 A.2d 859 (2003) (finding that roster listing names, ranks, badge numbers, date of hire and job assignments of county police officers was not exempt for disclosure as a "personnel record"). Generally, a record generated by an agency that lacks supervisory authority over an employee does not qualify as a "personnel record." Prince George's County, 149 Md. App. at 331. In addition, personnel records of an individual may lose that status if all identifying information is redacted. Md. State Police v. NAACP, 430 Md. 179, 195 (2013) (requiring disclosure of records of investigation into complaints of racial profiling).
The Legislative Auditor may have access to personnel records in the performance of his/her duties. 60 Op. Att'y Gen. 554 (1975). State Accident Fund investigators also may have access to personnel records concerning a workers' compensation fund claimant, or otherwise pertinent to the claim. 60 Op. Att'y Gen. 559 (1975). However, files of investigations of employee conduct generally do not constitute personnel records of an individual and are instead classified as investigatory files. Maryland Dept. of State Police v. Maryland State Conference of NAACP Branches, 190 Md. App. 359, 378, 988 A.2d 1075, 1086 (2010), cert. granted, 997 A.2d 789 (2010).
Exempt personnel records include, at a minimum, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798, 731 N.E.2d 63, 67 (2000). Not all information contained in the personnel file is exempt, however. Courts have held that particularly private information such as an employee’s name, home address, date of birth, and social security number is the type that the legislature had in mind when it identified “other materials or data relating to a specifically named individual.” Wakefield Teachers Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 799, 731 N.E.2d 63, 68 (2000).
“[P]ersonnel files or information are absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.” Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438, 446 N.E.2d 1051 (1983). Nonetheless, Massachusetts courts have been urged to scrutinize skeptically an agency’s invocation of the “personnel files” clause of exemption (c). Documents "are not to be insulated from disclosure merely because they have been designated by the defendants as constituting a 'personnel file.' What is critical is the nature or character of the documents, not their label." Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 764 N.E.2d 847 (2002). The Supreme Judicial Court has set out three possible procedures to determine whether such records are in fact exempt: (1) creation of an itemized and indexed document log setting forth justifications for claims of exemption, which can be reviewed by opposing counsel and the judge; (2) inspection of the documents by opposing counsel pursuant to a protective order; or, as a last resort, (3) in camera inspection by the judge.
Because a major purpose of the Public Records Law is to enable taxpayers to monitor government activities and employees, the exemption for “personnel records” is a narrow one; not all records relating to an individual’s employment will make the cut. Ordinary evaluations, performance assessments, and disciplinary determinations are exempt personnel records under the statute. But the employee’s name, address, and base and overtime pay are not exempt under the “personnel records” prong, even when contained in a personnel file, because they are merely “payroll records,” and are not records “useful in making employment decisions.” Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987) (holding that employee absentee records are non-exempt “payroll records,” not exempt “personnel records”). Nor is a government agency’s investigation of its own actions and employees.
Materials relating to the conduct of an internal affairs investigation within a police department, such as witness interviews, reports, and conclusions, are not exempted from the Public Records Law. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 787 N.E.2d 602 (2003) (noting that public ability to monitor investigations of police officers is critical for maintaining citizens’ trust and confidence); accord Leeman v. Cote and City of Haverhill Police Dep’t, No. 05-5387, 21 Mass. L. Rptr. 411 (Suffolk Super. Ct. Sept. 18, 2006). The disciplinary outcome, however, was exempt, because it directly related to the making of “employment decisions regarding the employee.” Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003) (holding that “the bricks and mortar of the investigation and the documenting of its results” are public records, but the “actual order and notice of disciplinary action issued as a personnel matter from the chief to the target of the disciplinary investigation” are not).
The determination of whether records are "of a personal nature" may sometimes require litigation. See, e.g., Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 516 N.E.2d 159 (1987) (finding public employee attendance and absentee records essentially nonpersonal and available).
See generally Mich. Comp. Laws Ann. § 15.243(1)(s)(ix) (law enforcement personnel record). The term “personnel” includes “all aspects of the employment process . . . so the phrase ‘personnel records’ presumably encompasses a retiree’s individualized records.” Detroit Free Press, Inc. v. City of Southfield, 269 Mich. App. 275, 286-87, 713 N.W.2d 28, 36 (2005).
"Personnel data" are defined as data "maintained because" a person is or was employed by or applied for a position with a government entity, including those who perform voluntary services or act as an independent contractor. Minn. Stat. § 13.43, subd. 1. Certain information about current and former public employees, volunteers and independent contractors is considered public, including name; actual gross salary; salary range; contract fees; actual gross pension; fringe benefits; other remuneration; job title; job description; education and training background; previous work experience; date of first and last employment; etc. Minn. Stat. § 13.43, subd. 2.
In Montana Human Rights Division v. City of Billings, 199 Mont. 434, 649 P.2d 1283, 1285 (1982), the Supreme Court ruled that certain personnel records could be closed, including matters related to family problems, health problems, employee evaluations, military records, IQ test results, prison records, drug and alcohol problems and information "most individuals would not willingly disclose publicly." 649 P.2d at 1287. See also 35 A.G. Op. 27, and 36 A.G. Op. 28.
Personnel files are not automatically exempt from disclosure. Personnel records are exempt if they pertain to "internal personnel practices . . . test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations; and personnel, medical, welfare, and other files whose disclosure would constitute invasion of privacy" are exempt. RSA 91-A:5, IV. To determine if the material meets this exemption, the court will apply “a two-part analysis of: (1) whether the material can be considered a ‘personnel file’ or part of a ‘personnel file’; and (2) whether disclosure of the material would constitute an invasion of privacy.” Reid v. New Hampshire Attorney Gen., 169 N.H. 509 (2016). Police personnel records are exempt. RSA 105:13-b.
Also exempt are records of the hiring, dismissal, promotion or compensation of a public employee or disciplining of such employee unless the employee consents to their disclosure. RSA 91-A:3, II (a) and (b). See Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006).
N.J.S.A. 47:1A-10 provides:
Notwithstanding the provisions of P.L. 1963, c. 73 (C. 47:1A-1 et seq.) or any other law to the contrary, the personnel or pension records of any individual in the possession of a public agency, including but not limited to records relating to any grievance filed by or against an individual, shall not be considered a government record and shall not be made available for public access, except that:
an individual’s name, title, position, salary, payroll record, length of service, date of separation and the reason therefor, and the amount and type of any pension received shall be a government record;
personnel or pension records of any individual shall be accessible when required to be disclosed by another law, when disclosure is essential to the performance of official duties of a person duly authorized by this State or the United States, or when authorized by an individual in interest; and
data contained in information which disclose conformity with specific experiential, educational or medical qualifications required for government employment or for receipt of a public pension, but not including any detailed medical or psychological information, shall be a government record.
Libertarians for Transparent Government v. Cumberland County, 465 N.J. Super. 11 (App. Div. 2020)
The Appellate Division held that a settlement agreement between the county and a former county employee resolving a preliminary notice of disciplinary action against the employee was not a "government record" under OPRA because the settlement agreement resolved an internal disciplinary action, involving the employee's improper fraternization with female inmates, and, as such, was a "personnel record" exempt from disclosure under N.J.S.A. § 47:1A-10.
(Note: Case was heard by NJ Supreme Court on 9/14/21 – awaiting decision).
Gannett Satellite Info. Network, LLC v. Twp. of Neptune, 467 N.J. Super. 385 (App. Div. 2021)
This litigation involves a newspaper’s request, under both OPRA and the common law, for internal affairs records of a former Township of Neptune Police Sergeant. The trial court determined that the newspaper was not entitled to access under OPRA, but was entitled to the records, as well as counsel fees, under the common law. The Appellate Division affirmed the trial court’s ruling that the records were accessible under the common law but reversed the award of counsel fees, although the Court acknowledged that counsel fees are available under the common law. The Appellate Division also affirmed the trial court’s determination that the records were not accessible under OPRA.
(Note: Gannett filed a Petition for Certification to the New Jersey Supreme Court on the denial of fees under the common law and the denial of access under OPRA. It is currently awaiting a decision on same).
In North Carolina, personnel records for state, county and municipal employees are addressed in separate chapters of the General
Statutes. The principal statutes governing personnel records of state employees are G.S. §§ 126-22, 126-23 and 126-24. County employee personnel records are covered by G.S. § 153a-98. The personnel records of municipal employees are governed by G.S. § 160a-168. The personnel records of employees of local school boards are governed by G.S. §§ 115C-319 through 115C-321. The personnel records of employees of public hospitals are governed by G.S. § 131E-257.2. In each case, the statutes provide that personnel records generally are exempt from the Public records law but that certain fundamental information may be disclosed. Amendment to each of the personnel statutes in 2010 opened up access to more personnel information, and as of this writing, legislation is pending that would provide even greater access. The information that is consistently public is: Name; age; date original employment or appointment; the terms of any contract by which the employee is employed ; current position; title; current salary; date and amount of each increase or decrease in salary; date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification; date and general description of the reasons for each promotion with that department, agency, institution, commission, or bureau; date and type of each dismissal, suspension, or demotion for disciplinary reasons, and if the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal; and the office or station to which the employee is currently assigned. The sole exception to this general list is that employees of public hospitals, whose personnel statute is markedly different. G.S. §§ 131E-257.2.
Personnel records of hospital employees are treated differently from all other public employees. For all employees, the public has a right of access to a core of information (name; age; date of employment; current position; date of the most recent promotion, demotion, transfer, suspension, separation or other change in position classification; and the office to which the employee is currently assigned.) G.S. § 131E-257.2. For licensed medical providers employed by or with privileges to practice in a public hospital, the public also may find out educational history and qualifications, date and jurisdiction or original and current licensure; and information relating to medical board certifications or other qualifications of medical specialists. Id. The law provides additional information for the five most highly compensated “key employees” (people having responsibilities similar to those of an officer, including the chief management and administrative officials of a public hospital) plus “covered officers” (such as the CEO). For those individuals, the following is public: Base salary, bonus compensation, plan-based incentive compensation and the dollar value of all other compensation, which includes any perquisites and other personal benefits. Id.
Personnel records, including information regarding the salary and job performance of an employee, are generally open to the public, according to the attorney general.
Any record of a public employee’s medical treatment or use of an employee assistance program is confidential and must not be included in the employee’s personnel record. N.D.C.C. § 44-04-18.1.
Personal information is exempt. N.D.C.C. § 44-04-18.1. Personal information includes a person’s home address; home telephone number or personal cell phone number; photograph; medical information; motor vehicle operator's identification number; public employee identification number; payroll deduction information; the name, address, telephone number, and date of birth of any dependent or emergency contact; any credit, debit, or electronic fund transfer card number; and any account number at a bank or other financial institution. N.D.C.C. § 44-04-18.1. Nonconfidential information contained in a personnel record of an employee of a public entity is also exempt. N.D.C.C. § 44-04-18.1.
These records are generally available for disclosure. But see ORS 192.345(12) (formerly ORS192.501(12)) (permitting a public body to make employee disciplinary actions confidential at the discretion of the employee); ORS 192.355(2) (formerly ORS 192.502(2)) (permitting withholding of information of a personal nature, including but not limited to the type of information kept in a personal, medical or similar file, if public disclosure of the information would constitute an “unreasonable invasion of privacy”) and ORS 657.665 (permitting withholding of records of Employment Division). Special provisions apply for educators’ personnel files, including disciplinary matters. ORS 324.850.
The Law contains an exemption for certain “records relating to an agency employee.” The exemption includes the following records:
“(i) A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation. (ii) A performance rating or review. (iii) The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed. (iv) The employment application of an individual who is not hired by the agency. (v) Workplace support services program information. (vi) Written criticisms of an employee. (vii) Grievance material, including documents related to discrimination or sexual harassment. (viii) Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge. (ix) An academic transcript.”
65 Pa. Stat. Ann. § 67.708(b)(7).
Personnel records are generally excluded by Exemption (A), if deemed confidential by federal or state law or regulation, or the disclosure of which would constitute a clearly unwarranted invasion of personal privacy pursuant to 5 U.S.C. § 552 et. seq. R.I. Gen. Laws § 38-2-2(4)(A)(I)(b). However, there is a list of specific personnel information that is required to be public under the APRA. Id. Moreover, pension records of all persons who are either current or retired members of the retirement systems established by the general laws as well as all persons who become members of those retirement systems after June 17, 1991 shall be open for public inspection. R.I. Gen. Laws § 38-2-2(4)(A)(II).
There is no specific exemption from disclosure for public employee personnel records, but most public bodies seek to assert an exemption under the "unreasonable invasion of personal privacy" rubric. A public body's claim that an internal investigative report of a police department was per se exempt from disclosure because it contained personal information was rejected by the Supreme Court of South Carolina. Columbia v. A.C.L.U. of South Carolina, 475 S.E.2d 747 (S.C. 1996). The South Carolina Court of Appeals held in Burton v. York County Sheriff, 594 S.E. 2d 888 (S.C. App. 2004) that disciplinary records of a sheriff's deputies were not exempt from disclosure under a claim that the release of the records would constitute an unreasonable invasion of personal privacy.
Open. See T.C.A. §§ 10-7-503(a) and (c)(1). There is an exception for undercover police officers. But this exemption is not to be construed as a general closure of personnel files of all police officers. Henderson v. Chattanooga, 133 S.W.3d 192 (Tenn. Ct. App. 2003) (allowing access to officers' photographs), But see Contemporary Media v. Giles, 30 Med. L. Rptr. 2149 (Tenn. Ct. App. June 3, 2002) (denying access to photos of all newly hired deputy sheriffs).
Based on a case from the U.S. Court of Appeals for the Sixth Circuit, Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the Attorney General stated that § 10-7-503(c) of the Open Records Act, which requires custodians of law enforcement personnel information to allow the public to inspect it, but to obtain information regarding the person making the request for information and to notify the officer whose records have been inspected within three days, may not comply with the due process requirements of the U.S. Constitution in certain situations. This requirement applies where the custodian knows or should know that release of information could potentially threaten the personal security of a law enforcement officer. In those circumstances, the officer must receive prior notice and an opportunity to be heard. Op. Att'y Gen. No. 98-230 (December 10, 1998). In response to Kallstrom, the exception for undercover officer was created, as explained in Henderson.
Special disclosure exemptions exist only for the names of applicants for chief executive officer of institutions of higher education and for superintendent of public school districts. Tex. Gov’t Code §§ 552.123-124. Otherwise, the names and resume information about all individuals who apply for employment directly with a governmental body are public. Tex. Att'y Gen. ORD-257 (1980); Tex. Att'y Gen. ORD-264 (1981); Tex. Att'y Gen. ORD-439 (1986). This is true even if the governmental body uses a search committee or a consulting group to find and screen applicants. Tex. Att'y Gen. ORD-439 (1986); Tex. Att'y Gen. ORD-585 (1991); see also Hubert v. Harte-Hanks Tex. Newspapers Inc., 652 S.W.2d 546, 551 (Tex. App.—Austin 1983, writ ref'd n.r.e.). Names of finalists for positions should be made public. See Hubert, 652 S.W.2d at 551(noting that the public is legitimately concerned with the names and qualifications of candidates for the presidencies of state universities); Tex. Att'y Gen. ORD-439 (1986), overruling Tex. Att'y Gen. ORD-425 (1985) and Tex. Att'y Gen. ORD-273 (1981).
A public employee's employment history and salary are public as are federally mandated equal employment opportunity reports that contain salary, sex, and ethnicity information. Op. Tex. Att'y Gen. GA-8761 (2005). Generally, information about a public employee's certification, licenses, educational levels, professional awards and memberships, dates of employment, character references, and prior employment is public. Tex. Att'y Gen. ORD-298 (1981); Tex. Att'y Gen. ORD-329 (1982); Tex. Att'y Gen. ORD-342 (1982); Tex. Att'y Gen. ORD-455 (1987). However, in 1989 the Legislature amended the Act to exempt from public disclosure college transcripts in professional public school employees' personnel files provided, however, that this section does not exempt from disclosure the degree obtained or the curriculum on a transcript. Tex. Gov’t Code § 552.102(b); see Tex. Att'y Gen. ORD-526 (1989) (applying this exception according to the Legislature's revision to previous rule). Only transcripts of employees of public schools under Title 2 of the Education Code benefit from this exception — employees of colleges and universities fall under Title 3 of the Education Code. See Open Records Letter Nos. 2002 - 6930 (2002), 2002 - 1827 (2002), 2001 - 2740 (2001), 2000 - 2621 (2000). Information in a worker's compensation claim file held by or obtained from the Industrial Accident Board is confidential. Tex. Lab. Code. § 402.083. However, a public employer's file on a worker's compensation claim is public unless otherwise protected by a common law, constitutional, or employee privacy right. Tex. Att'y Gen. ORD-533 (1989). Information about disciplinary actions, dismissals, demotions, or promotions of public employees is public. Tex. Att'y Gen. ORD-444 (1986). Usually, the circumstances of a public employee's resignation are public. Id.; Tex. Att'y Gen. ORD-278 (1981); Tex. Att'y Gen. ORD-329 (1982).
Civil service departments must maintain a personnel file on all police officers and firefighters. Tex. Loc. Gov't Code. § 143.089. Such files are subject to the Act. Tex. Att'y Gen. ORD-562 (1990). However, the same provision of the Local Government Code allows a police or fire department to keep a confidential, separate personnel file on the same employees. Tex. Loc. Gov't Code. § 143.089(g). This file is excepted from public disclosure "if the information is reasonably related to the firefighter's or police officer's employment relationship with the fire or police department." Tex. Att'y Gen. ORD-562 (1990). Similarly, documents relating to an investigation into a firefighter or police officer's misconduct can be withheld upon a decision that the allegations of wrongdoing were unfounded. Tex. Att'y Gen. ORD-642 (1996) (citing Tex. Loc. Gov't Code. § 143.1214(b)).
Several of the Act's exceptions protect public employees' privacy. Information revealing home addresses, home telephone numbers, and Social Security numbers of current or former governmental officials and employees as well as certain peace officers and security officers is protected. Tex. Gov’t Code § 552.117. Further, information that reveals whether such persons have family members is also exempt from disclosure unless such persons choose to allow public disclosure pursuant to a procedure outlined in the Act. Tex. Gov’t Code §§ 552.117; 552.024. Photographs of peace officers (even in personnel files) generally are not public. Tex. Gov’t Code § 552.119. However, a peace officer's photograph after he has died is not exempt from disclosure. Id.; Tex. Att'y Gen. ORD-536 (1989). An employee's W-4 tax form, I.Q. score, psychological testing results, and certain financial records are confidential under a constitutional or common law right of privacy. Tex. Gov’t Code § 552.101; Tex. Att'y Gen. ORD-600 (1992) (discussing in detail a wide variety of personnel records). Personnel evaluations are also exempted. See Tex. Att'y Gen. ORD-600 (1992). However, privacy interests may not protect certain employee accident reports and insurance and benefits information. Tex. Att'y Gen. ORD-600 (1992).
Closed, except to the employee, if they involve “personal documents” which include “information in any files maintained to hire, evaluate, promote, or discipline any employee of a public agency, information in any files relating to personal finances, medical or psychological facts concerning any individual or corporation.” See 1 V.S.A. § 317(c)(7).
Personnel records concerning identifiable individuals are generally excluded. Contracts between public officers and a public body may not be withheld. Va. Code Ann. § 2.2-3705.1.1. Personnel records of a terminated employee must be produced under the Act where that employee waives all claims of confidentiality. Concerned Citizens for Educational Excellence v. Richmond Sch. Bd., 43 Va. Cir. 209, 210 (City of Richmond Cir. Ct. 1997).
Information in files maintained for public officials and employees may be withheld “to the extent that disclosure would violate their right to privacy.” RCW 42.56.230(2). The “right to privacy” refers to matters that would be highly offensive to a reasonable person if disclosed and are not of public concern. RCW 42.56.050.
Personnel records, including information contained in an individual's application and disciplinary records, generally would be subject to the balancing test required for disclosure of personal information under FOIA Exemption 2, discussed above. Facts — such as an individual's name and residential address — which "are not 'personal' or 'private' facts but are public in nature in that they constitute information normally shared with strangers and are ascertainable by reference to publicly obtainable books and records" are disclosable even without the balancing test required for more intimate information. See generally, In re Charleston Gazette FOIA Request, 222 W. Va. 771, 671 S.E.2d 776 (2008)(recognizing, in dicta, that such records should be available to the public upon FOIA request). See also, Charleston Gazette v. Smithers, 232 W. Va. 449, 752 S.E.2d 603 (2013)(West Virginia State Police records regarding an internal investigation or inquiry stemming from either a complaint of misconduct by a state police officer in connection with the officer’s official duties is subject to release in some circumstances). Syl. Pt. 8, Hechler v. Casey, 175 W. Va. 434, 333 S.E.2d 799 (1985). Public bodies have routinely disclosed information regarding public employees' salaries.
A 2016 FOIA amendment excluded from disclosure personal information relating to law-enforcement officers that is maintained by a public body in the ordinary course of an employer-employee relationship. § 29B-1-4 (a)(21). As used in this exemption, “personal information” includes the officer's social security number, health information, home address, personal address, personal telephone numbers and personal email addresses and those of his or her spouse, parents and children as well as the names of the law-enforcement officer's spouse, parents and children.
Some personnel records are made specifically subject to, or exempt from, disclosure by other statutes. West Virginia Code section 29-6-16 provides that records of the state civil service commission, "except such records as the rules may properly require to be held confidential for reasons of public policy, shall be public records and shall be open to public inspection." W. Va. Code § 29-6-16. West Virginia Code section 18-29-3 regulates grievance proceedings for education employees and West Virginia Code section 29-6A-3 regulates grievance proceedings for public employees. These provisions mandate that "[a]ll grievance forms and reports shall be kept in a file separate from the personnel file of the employee and shall not become a part of such personnel file, but shall remain confidential except by mutual agreement of the parties." Id.
West Virginia Code section 8-14-10 requires the Policemen's Civil Service Commission to "[k]eep minutes of its own proceedings, and records of its examinations and other official actions. All recommendations of applicants for office, received by the said commission or by any officer having authority to make appointments to office, shall be kept and preserved for a period of ten years, and all such records, recommendations of former employees excepted, and all written causes of removal, filed with it, shall, subject to reasonable regulation, be open to public inspection." W. Va. Code § 8-14-10.
Records identifying specific individuals by name are not per se exempt from disclosure unless the record falls within one of the exemptions of FOIA or are otherwise rendered specifically exempt from disclosure pursuant to the provisions of another statute.
Expense reports of government employees or contractors do not fall within any FOIA exemption and should be disclosed upon request.
Under the Government Employees Deferred Compensation Plans Act, “[a]ll information . . . that would tend to disclose the identity of a participating employee, including, without limitation, social security number, account number, address, telephone number, e-mail address, amounts invested, selected investments, returns and medical or disability information, are confidential and exempt from disclosure under [FOIA].” W. Va. Code § 5-10B-2.
Under the Public Records Management and Preservation Act, personal information of state officers, employees or retirees, such as their home addresses, social security numbers, credit or debit card numbers, driver’s license identification numbers, and marital status or maiden names, which are maintained by West Virginia’s executive, legislative or judicial branch agencies, are confidential and exempt from disclosure to non-governmental entities under the West Virginia Freedom of Information Act. W. Va. Code § 5A-8-21(a). The legislature recognized, “It is the policy of the state of West Virginia that the information enumerated in subsection (a) of this section is personal and confidential and should only be released to non-governmental entities for such purposes as are authorized by federal law or regulation, a provision of this code or a legislative rule promulgated pursuant to [FOIA].” W. Va. Code § 5A-8-21(b).
There is no blanket exemption of public employee personnel records from the Open Records law. Wis. Newspress Inc. v. Sheboygan Falls Sch. Dist., 199 Wis. 2d 768, 781–82, 546 N.W.2d 143, 148 (1996). Municipal and county personnel records are subject to the common-law balancing test. Cf. State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 137 N.W. 2d 470 (1965), modified on reh’g, 139 N.W.2d 241 (1966); Jensen v. Sch. Dist. of Rhinelander, 2002 WI App 78, ¶ 22, 251 Wis. 2d 676, 688, 642 N.W.2d 638, 643–44 (diminished reputational interests of school superintendent, prominent public official, who had already been placed on administrative leave did not warrant withholding from public inspection school board’s employment evaluation of superintendent’s performance). However, as a general proposition, complete personnel files of police officers are not subject to public inspection as a matter of public policy. Village of Butler v. Cohen, 163 Wis. 2d 819, 472 N.W.2d 579 (Wis. Ct. App. 1991); Pangman & Assocs. v. Zellmer, 163 Wis. 2d 1070, 473 N.W.2d 538 (Wis. Ct. App. 1991); but see Local 2489, AFSCME v. Rock Cty., 2004 WI App 210, 277 Wis. 2d 208, 689 N.W.2d 644 (public employees of a law enforcement agency give up certain privacy rights and are subject to public scrutiny; release of records of completed investigation regarding sheriff’s deputies viewing Internet pornography on the job would not be deferred pending outcome of arbitrations challenging sheriff’s discipline of such deputies); Kroeplin v. Wis. Dept. of Nat. Res., 2006 WI App 227, ¶ 46, 297 Wis. 2d 254, 287, 725 N.W.2d 286, 302 (“The public interest in being informed both of the potential misconduct by law enforcement officers and of the extent to which such misconduct was properly investigated is particularly compelling.”). The records of undercover officers are not subject to inspection. Pangman & Assocs. v. Stigler, 161 Wis. 2d 828, 468 N.W.2d 784 (Wis. Ct. App. 1991).
Personnel records of private companies that contract with governmental bodies are not thereby rendered subject to inspection under the Open Records law. Kraemer Bros. Inc. v. Dane Cty., 229 Wis. 2d 86, 99, 599 N.W.2d 75, 82 (Wis. Ct. App. 1999) (“We conclude there is a public interest in disclosure of the names, but, in light of the indirect link between that disclosure and the activities of the contracting municipalities, and in light of the existing means of assuring compliance by the municipality, it is not a strong one.”); Bldg. and Const. Trades Council of S. Cent. Wis. v. Waunakee Comm. Sch. Dist., 221 Wis. 2d 575, 585, 585 N.W.2d 726, 730 (Wis. Ct. App. 1998) (“the ‘nature’ of the documents the Council seeks is that they are, in the first instance, private records which may assume a status equivalent to that of public records . . . only if they have been produced or collected under a contract between the District and Cullen, which they plainly were not.”); but see Atlas Transit Inc. v. Korte, 2001 WI App 286, ¶¶ 16–17, 249 Wis. 2d 242, 253–54, 638 N.W.2d 625, 630–31 (lists of school bus drivers filed by private bus companies with school district are not akin to personnel records and are generally subject to public inspection).
Generally, personnel records are confidential if they contain the type of personal information normally seen in a personnel file. This does not include records of qualifications that an employee has for his or her position, including work history and educational degrees. Severance agreements are publicly available under the provision that documents setting forth the terms and conditions of employment are expressly available to the public.