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.Posted in Joshua Herman, Labor and Employment, Local Government and Public Finance