Month: September 2013

Discipline Can Be Subject to FOIA

Evaluating performance instead of discipline may avoid disclosure

By Joshua D. Herman

FOIA requests often seek employee discipline records, which can contain sensitive information for both the employee and the employer. The public disclosure of these records is primarily governed by two laws: the Freedom of Information Act (“FOIA”) and the Personnel Records Review Act (“PRRA”). Together, courts have interpreted these Acts to require disclosure of disciplinary records (including investigatory notes, letters of reprimand, etc.) if they are responsive to a FOIA request and not otherwise exempt.

Employers logically keep discipline records in the employee’s personnel file and have relied on FOIA’s personnel file exemption to deny such requests; thus, it was a surprise when the court in Watkins v. McCarthy held such records were not exempt under FOIA just because they were in a personnel file.  Further complicating matters, FOIA was recently amended to remove the personnel file exemption altogether.

Governmental bodies are left to argue FOIA’s other exemptions apply to records of discipline, namely:  7(1)(b) (private information), 7(1)(c)(personal information constituting an unwarranted invasion of personal privacy),   7(1)(f)(preliminary drafts, notes, etc. expressing opinions), and 7(1)(a) (disclosure prohibited by other law).  However, these attempts have had little success.

For example, 7(1)(b) supports redacting private information in a record (e.g., a social security number), but does not exempt the entire record.  Courts have held 7(1)(c) does not exempt discipline records arising from an employee’s work because it is not personal business.  Instead, the public’s interest in the performance of the employee’s public duties means disclosure is not an “unwarranted invasion of personal privacy”.  Consequently, Watkins v. McCarthy held that while these exemptions may permit minor redaction (e.g., the employee’s date of birth or social security number), the majority of records were not exempt.

The court in Watkins did recognize related investigation documents could be exempt as preliminary drafts pursuant to 7(1)(f), but it still required that the records be confidentially turned over to it to determine if the exemption applied. Ultimately, the court permitted the withholding of some information, but ordered production of the remaining records.

Most surprising, the Watkins court rejected 7(1)(a) entirely, reading the PRRA to require (rather than prohibit) disclosure of disciplinary records responsive to a FOIA Request.  Further Watkins held the PRRA’s requirement that employers remove disciplinary records more than four years old prior to disclosure may not apply if the disclosure is ordered pursuant to a FOIA action.  Thus, in that case, the court held that disciplinary records related to the performance of public duties going back at least four years (if not more) were subject to disclosure.

Despite the foregoing, please remember, the PRRA still requires employers provide the affected employee written notice of the impending disclosure on or before the date of disclosure.

Evaluating Performance Rather Than Documenting Discipline

At the same time the personnel file exemption was removed from FOIA, the PRRA was amended to prohibit disclosure of “performance evaluations” in response to a FOIA request.  Unfortunately, the term “performance evaluation” is not defined under either the PRRA or FOIA.  Some records of discipline may therefore qualify as a “performance evaluation” under the PRRA amendment, but no court has considered such a possibility.  Consequently, relying on this possibility may be a risk because the PRRA provision “requiring” disclosure of disciplinary records still exists.  Thus, governmental employers concerned that their disciplinary records might not be considered “performance evaluations” may choose to be proactive and tailor future records to more clearly qualify as exempt under the PRRA.

Such a practice should meet the requirements of any applicable collective bargaining agreement.  At a minimum, the evaluation should describe the poor performance of the employee (for which she/he would otherwise receive a letter of discipline), evaluate that performance, and state the corrective actions the employee should follow.  Not only may this permit governmental employers to better protect employee records from unnecessary disclosure, it also provides constructive feedback to the employee.

In conclusion, disciplinary records may be discoverable pursuant to FOIA, but performance evaluations are not.  Consequently, governmental employers may wish to consider evaluating performance as an alternative to meting out conclusory discipline to avoid disclosing their employees’ personnel records and to potentially foster more effective employee performance.  However, as noted above, there is no clear distinction between what constitutes a disciplinary record and performance evaluation.   Consequently, there is no guarantee that structuring a disciplinary action as a performance evaluation will prevent disclosure if denial of a FOIA request is appealed.

Personal Electronic Devices and the Freedom of Information Act

Court holds that not all communication on personal electronic devices is subject to FOIA

By Richard M. Joseph

richard.joseph@mhtlaw.com

In July, 2013, the Fourth District Appellate Court of Illinois, in the case of City of Champaign vs. Lisa Madigan (2013 WL 3704619), held that not all messages received by a public official on a personal electronic device, even though the communications may pertain to the transaction of public business, are subject to the Freedom of Information Act (“FOIA”).

As many of our readers are aware, in 2011 the Illinois Attorney General’s Office issued Public Access Opinion No. 1106 which stated that electronic records relating to the transaction of public business are “public records” and are subject to disclosure under Section 2(c) of FOIA, notwithstanding that they are generated on a public official’s private equipment and/or maintained on personal electronic accounts.  Under that binding opinion, communications to or from public officials on cell phones, iPhones, iPads, BlackBerrys, computers, or any other device used to send and receive communications by means of email, voice and/or text messages, even though the electronic device is privately owned and does not utilize an email account of the public body, was held to be subject to disclosure under FOIA.  In fact, it became commonplace, after the Attorney General’s opinion, for individuals filing FOIA requests to specify that their request includes all emails even though they may be on a personal electronic device.

It is interesting to note that Public Access Opinion No. 1106 was issued to the City of Champaign in regards to the same set of facts which gave rise to the Fourth District’s opinion; which, in effect, limits the impact of Public Access Opinion No. 1106.

In the City of Champaign case, the City sought review of a decision by the Illinois Attorney General that found that texts and emails sent or received from a city council member’s personal electronic device during public meetings, and concerning city business, were public records subject to a newspaper reporter’s FOIA request.

The issue started when the Champaign News Gazette filed a FOIA request with the City of Champaign seeking the following records:

“All electronic communications, including cell phone text messages, sent and received by members of the City Council and the Mayor during Council meetings and study sessions since (and including) May 3.  Please note that this request applies to both City-issued and personal cell phones, City-issued or personal email addresses, and Twitter accounts.”

The City, in partially denying the request, and later in court, argued that communications on privately-owned electronic devices are not subject to FOIA as they are not “public records” because individual city council members are not themselves the “public body”.

Section 2(c) of FOIA defines “public records” as follows:

“[A]ll records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information, and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.”  (Emphasis added)  5 ILCS 140/2(c).

To qualify as a “public record”, the court held that the communication must (i) “pertain[ ] to the transaction of public business” and (ii) must either have been prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  The court, in contrast to the position of the Attorney General, determined that not all communications “pertaining to the transaction of public business” are “public records”.

Once there is a determination that a communication pertains to “public business”, the next determination is whether that communication has been either prepared by a public body, prepared for a public body, used by a public body, received by a public body, possessed by a public body, or controlled by a public body.  Thus, the question of whether a communication which pertains to the transaction of public business is subject to FOIA turns upon the definition of a “public body”.  The Fourth District held that individual members of the city council are not themselves a “public body” under FOIA.  The court reasoned that because an individual city council member cannot, by himself or herself, conduct the business of the public body, is unable to individually convene a meeting, and is individually unable to pass ordinances or approve contracts, an individual is not a “public body” for purposes of FOIA.

Under this interpretation, an electronic message between an individual and a public official “pertaining to the transaction of public business” received outside of a city council meeting on his or her personal electronic device would not be subject to FOIA.  Such a statement, however, is not without limitation.

The court further reasoned that the communication would be subject to FOIA if it were forwarded to enough members of the public body so as to constitute a quorum for that specific body even if a personal electronic device was used.  Additionally, communications received on an electronic device provided by the public body or through an email address provided by the public body would be subject to FOIA (unless another exception applies) because such a device would be “under the control of a public body”.  Finally, even though a communication may be made or received on a personal electronic device, if the communication is between members of the public body while in a public meeting of that public body, then such communications are subject to FOIA.  This makes sense since the law should not be interpreted to allow public officials acting in their collective capacity as a public body to engage in private electronic communications which are outside the public review if they pertain to the public’s business.

The impact of the Fourth District’s opinion in City of Champaign vs. Lisa Madigan is significant.  In essence:

  • Communications to or from a public official pertaining to the transaction of public business received or sent on an electronic device provided by the public body or via an email account provided by the public body are (unless another exception applies) subject to disclosure under FOIA.
  • Communications received or sent by a public official, even though pertaining to the transaction of public business, on his or her personal electronic device and through an email account not provided by the public body are not generally subject to disclosure under FOIA.
  • Notwithstanding the above, and even if the communication is received on a personal electronic device, if the communication is forwarded to enough members of the public body so as to constitute a quorum for that specific public body, then the communication (unless another exception applies) is subject to disclosure under FOIA.
  • Finally, if public officials engage in electronic communication with each other during a public meeting and such discussion pertains to public business, the communication (unless another exception applies) is subject to disclosure under FOIA.