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FIRST FOR A REASON: ACCESS TO PERSONNEL INFORMATION


October 30, 2017 Uncategorized

FFR received an inquiry about the specifics of the statement in last week’s post that “The law is very narrow with regard to what personnel information is public.  However, almost all personnel statutes permit the public agency to release personnel information when doing so is necessary to maintain public confidence in the integrity of the agency.”

There are many personnel statutes scattered throughout the NC code.  With the exception of the hospital employee statute, though, they mostly say the same thing.  (As an example, see the state personnel statutes: http://tinyurl.com/SMVT-State-Personnel.)  Most of the statutes state that “personnel files” of employees are not public records and then provide that basic information about employees is public.  That list generally includes (1) name; (2) age; (3) date of employment; (4) terms of any employment contract; (5) current position; (6) title; (7) current salary; (8) date and amount of each increase or decrease in salary; (3) date and type of each promotion, demotion of other change in position classification; (10) date and reason for any promotion; (11) date and type of any dismissal, suspension or demotion* and (12) current assignment.

*Note:  If an employee is dismissed for disciplinary reasons, “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.”

These statutes are less than straightforward, however, and there are a few things to know.  First, the public records exemption only applies to information initially gathered by the employing agency related to certain employment activity.  Therefore, even information that lands in a personnel file isn’t necessarily exempt from disclosure.  The News & Observer, Whiteville News Reporter and Tabor-Loris Tribune have all litigated and won that issue.

As with most aspects of the Public Records Law, knowing what you are and are not entitled to get is half the ballgame.  If information truly is confidential under the statute, all hope may not be lost.  Most personnel statutes have what we call the “integrity exception.”  This provision allows the release of personnel information when it is “essential to maintaining the integrity of such department or to maintaining the level or quality of services provided by such department.”  This might come into play, for example, if there were concerns about a teacher exhibiting aggressive behavior to students.  The school system could release information to assure parents and the community that the situation had been dealt with properly.

To invoke the “integrity exception,” there must be a written determination that release is necessary, and that memo goes in the personnel file.  In 2004, Chief Justice I. Beverly Lake of the N.C. Supreme Court used it to release information about the head of the Administrative Office of the Courts when the Chief asked for the AOC head to resign.  Justice Lake wrote:

My disclosure of this information is essential to create a complete public record, and to minimize the risk of distortions or exaggerations resulting from incomplete public information … This information will show that the integrity of the AOC has been preserved and protected by my actions in connection with Mr. Kennedy’s resignation … The behavior that called for Mr. Kennedy’s resignation had not yet injured or impaired the operations of the AOC in any way.

Admittedly this procedure is rarely used, but the point is it has been used.  (To read the memo that the Chief prepared, which can serve as a go-by for any public official considering using this provision, go to http://tinyurl.com/SMVT-Lake-Memo.)

Access to personnel information is limited, but requesters need to have a discerning ear.  Is the information even protected personnel information to start with?  If so, is there an exemption that allows you access, or can you persuade the public agency that there is good reason to release the information anyway?

For a listing of the main personnel privacy statutes, go to http://tinyurl.com/SMVT-Personnel-List.

Email us with feedback, questions, or topics that interest you:  First@smvt.com

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