Wednesday, April 16, 2014 06:39:57 AM

Re: Advisory Opinion; Public Records; Employee Personnel Information; N.C.G.S. 126-22 and 126-23

Office of the Attorney General
State of North Carolina

March 18, 1997

RE: Advisory Opinion; Public Records; Employee Personnel Information;
N.C.G.S. §§ 126-22 and 126-23

Ms. Janice Faulkner
Commissioner of Motor Vehicles
1100 New Bern Avenue
Raleigh, North Carolina 27697-0001

Dear Commissioner Faulkner:

You ask our advice concerning a public records request for a list of employees or
former employees of the Department of Motor Vehicles who are receiving disability
income. You advise that such a list is available. The only information it provides
is the name of the individual and the amount of money he or she is receiving as
disability income. It gives no particulars as to the type of disability or the
reasons why the individual was placed on disability. For reasons which follow,
such a list is a public record which should be released.

N.C.G.S. §126-22 provides that the "(p)ersonnel files of State employees, former
State employees, or applicants for State employment shall not be subject to the
inspection and examination (as public records) as authorized by G.S. 132-6." This
section then defines what personnel file information consists of. For purposes
of this Article, a personnel file consists of any information gathered by the
department, division, bureau, commission, council, or other agency subject to
Article 7 of this Chapter which employs an individual, previously employed an
individual, or considered an individual's application for employment, or by the
office of State Personnel, and which information relates to the individual's
application, selection or nonselection, promotions, demotions, transfers, leave,
salary, suspension, performance evaluation forms, disciplinary actions, and
termination of employment wherever located and in whatever form. N.C.G.S. §126-22.

The General Assembly, recognizing that some information about state employees
and former state employees should be made available as public record information,
mandated that certain information contained in a personnel file shall be open
to inspection as a public record. N.C.G.S. §126-23 provides, in pertinent part,
as follows: Each department, agency, institution, commission and bureau of
the State shall maintain a record of each of its employees, showing the following
information with respect to each such employee: name, age, date of original
employment or appointment to the State service, current position, title,
current salary, date and amount of most recent increase or decrease in salary,
date of most recent promotion, demotion, transfer, suspension, separation,
or other change in position classification, and the office or station to which
the employee is currently assigned.

In 1988 the North Carolina General Assembly established the Disability Income
Plan of North Carolina. See, Article 6 of Chapter 135 of the North Carolina
General Statutes. This Plan is administered by the North Carolina Department
of State Treasurer and the Board of Trustees of the Teachers' and State
Employees' Retirement System within the terms and conditions of the Plan as
set forth in Article 6. The Plan was established to provide an equitable
replacement income for eligible state teachers and state employees who
become temporarily or permanently disabled for the performance of their
duty prior to retirement and to encourage disabled state teachers and
state employees who are able to work to seek gainful employment after a
reasonable period of rehabilitation. The Plan further provides for the
accrual of retirement and other benefits to the date the eligible state
teacher or state employee meets the requirements for an unreduced retirement
under the Teachers' and State Employees' Retirement System.

*2 The General Assembly has provided in N.C.G.S. §126-23 that the salary
of a state employee or former employee is a matter of public record. The
word "salary" has broadly been defined by our State Supreme Court to
include retirement benefits. See, Bridges v. City of Charlotte,
221 N.C. 472, 482 (1942). It is our opinion, therefore, that the word
"salary" includes disability income. Moreover, although N.C.G.S. §126-23
does not specifically state that being in the status of receiving
disability income is a matter of public record, that statute requires
the employer to provide as public record information the "date of most
recent promotion, demotion, transfer, suspension, separation, or other
change in position classification, and the office or station to which the
employee is currently assigned." We believe that an employee's status as
receiving "disability income" fits within the meaning of "or other change
in position classification," and the "office or station to which the
employee is currently assigned," as stated in N.C.G.S. §126-23.

In conclusion, assuming that the Department of Motor Vehicles has a record
which lists the names and salary of those individuals on disability
retirement, that list is a public record which must be disclosed.

Andrew A. Vanore, Jr.

Chief Deputy Attorney General