N. 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. 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 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. Board of Ed., 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).
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 v. City of Southfield, 269 Mich. App. 275, 286-7. 713 N.W. 2d 28 (2005).
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).
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) (former ORS192.501(12)) (permitting a public body to make employee disciplinary actions confidential at the discretion of the employee); ORS 192.355(2) (former 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.
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.
Disclosure of personnel records is limited by Tex. Gov’t Code § 552.102. Other specific 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. Tex. Att’y Gen. Op. 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 employee, if 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 (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).
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.