Disciplinary Records Older Than 4 Years Prohibited from Disclosure in Response to FOIA Request
By: Robert B. McCoy
Public employers have sometimes attempted to prevent the disclosure of an employee’s disciplinary records in response to Freedom of Information Act (FOIA) request under the theory that a request for such records is an unwarranted invasion of the employee’s privacy. However, it is now settled law in Illinois that disciplinary records of a public employee, where discipline was actually imposed and which bear on the employee’s ability or fitness to do his or her work, are public records that must be released in response to a FOIA request. But, must a public employer disclose every past reprimand or suspension of an employee, no matter how long ago the discipline was imposed?
The answer is “no.” The Illinois Appellate Court, in the case Johnson v. Joliet Police Department, decided on June 19, 2018, ruled that, when a public employer received a FOIA request for an employee’s disciplinary records, the Personnel Record Review Act (Review Act) mandates that the employer delete those records which are more than four years old.
In the Johnson case, the Joliet Police Department denied a plaintiff’s FOIA request for records relating to the discipline of one of its employees. This employee had been disciplined twice, but that discipline had been imposed more than four years prior to the FOIA request.
In ruling that the Joliet Police Department justifiably denied the FOIA request, the Appellate Court noted that Section 8 of the Review Act provides that “An employer shall review a personnel record before releasing information to a third party and, except when the release is ordered to a party in a legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of disciplinary action which are more than 4 years old.” (820 ILCS 40/8.)
Section 8 of the Review Act appears straightforward, but the plaintiff making the FOIA request in the Johnson case argued that Section 11 of the Review Act, which states that the Review Act is not to be construed as to diminish a right to access records already otherwise provided at law, meant that the Joliet Police Department could not limit his FOIA rights. (820 ILCS 40/11.) The Appellate Court disagreed, finding that the plaintiff’s interpretation of the Review Act rendered meaningless Section 7.5(q) of FOIA, which exempts from FOIA information prohibited from being disclosed by the Review Act. (5 ILCS 140/7.5(q).)
If your public body receives a FOIA request for employee disciplinary records, the first step is to determine what records are responsive to the request, and whether the records are actually disciplinary records. Not all records regarding an employee’s poor performance are disciplinary records. For example, in the Johnson case, the Appellate Court noted that citizen complaint registers were not disciplinary records. Records of an investigation or adjudication, to determine whether discipline should be imposed against a specific employee, are not disciplinary records. Neither are performance evaluations. But, letters of reprimand or notices of suspension (with or without pay) are disciplinary records. These records must usually be disclosed, but pursuant to Section 8 of the Review Act, disciplinary records more than 4 years old must be deleted from the response to a FOIA request. Whenever records are withheld in response to a FOIA request, the requester must be informed of the reason for the denial, while also being informed of his or her right to appeal to the Illinois Attorney General’s Public Access Counselor or file a lawsuit seeking review of the denial.
If any disciplinary records are being released to a third party, Section 7 of the Review Act requires that the employee receive prior notice before the records are released. (820 ILCS 40/7.) When disciplinary records are being released to a third party pursuant to a FOIA request, notice to the employee can be by email; otherwise, the notice must be by first-class mail. Employees have the right to supplement their personnel file with their side of the story, and any written explanations should be released along with the disciplinary records being divulged, but employees do not have the right to veto or delay the release of their disciplinary records.