Accessing personnel records: A balancing act between privacy, public’s right to know





A high-school guidance counselor disappears from his job, placed on “administrative leave” for unexplained reasons. Rumors run wild through the school. As a school-district investigation drags on, the public wants to know: What’s going on?

Complaints accusing employees of wrongdoing are some of the most informative records that a journalist could want – and some of the most difficult to get. Two different confidentiality arguments – the sensitivity of personnel records and the secrecy of unfinished investigations – both are likely to be raised.

The guidance counselor’s case (Predisik v. Spokane School District) was argued in October 2014 before the Washington State Supreme Court, which will soon decide whether the public has a right of access to documents describing accusations against public employees. That ruling will add to a growing list of recent court cases addressing the conflict between employee privacy and the public’s right to keep government accountable.

This article looks at the frustrating obstacles journalists often face in trying to obtain access to personnel-related records from college and schools. While the law sometimes entitles these agencies to withhold highly embarrassing or confidential documents, it’s an oversimplification to say – as many agencies do – that “personnel” is a blanket excuse for denying a public-records request.

Personnel records: A touchy subject

Personnel files contain a mix of information that is of public interest and importance (such as how much a government employee is paid) and information that normally is none of the public’s business (such as the reason for an employee’s medical absences). Because of that mixture, access to personnel files rarely is all-or-nothing.

Even in the federal government, where the Privacy Act is especially protective of the personnel records of U.S. government employees, the public is entitled to certain information – such as the employee’s salary and positions held along with their location – even if the employee prefers that the information be kept private.1

Occasionally, the information in a personnel record is categorically off-limits to disclosure as a matter of law. For instance, most state open-records laws now require removal of information that would promote identity theft, including bank-account numbers and Social Security numbers.

Aside from those few exemptions, access to records kept in a government employee’s personnel file is a case-by-case decision. Judges must balance the public’s right to know against the employee’s personal privacy interests. Because court interpretations are highly fact-specific, it’s difficult to predict whether a specific record will be deemed accessible or will be withheld as confidential.

Most state open-records laws give agencies discretion to withhold records that otherwise are accessible to the public if their contents would unnecessarily invade personal privacy. However, even highly embarrassing records can be released if disclosure is in the public interest and the records are newsworthy. (In one memorable example, a fired Wisconsin teacher lost his case attempting to block disclosure of the pornographic websites he viewed on a school computer.2)

The more that a record involves the expenditure of taxpayer money or the honesty of government services, the less likely that a judge will order it withheld on the grounds of personal privacy. For instance, in one recent case, a Michigan community college was ordered to grant a journalist’s request to inspect forms signed by the college president to withhold money from his paycheck for a retirement fund.3 The court rejected the college’s “personal privacy” argument and agreed with the journalist that information on the form might raise issues of public concern, such as whether the president complied with IRS tax regulations.

Evaluation records: A special case

When the Los Angeles Times released a database calculating the effectiveness of some 11,500 teachers in the Los Angeles Unified School District based on how much they raised their students’ standardized test scores above expectations, the story provoked protests from teachers. When one of the teachers publicly identified as “less effective” committed suicide, the outcry turned to outrage.4

Public access to teacher evaluations is an emotionally charged issue, in part because so many employees believe that the methods used to assign performance scores are unfair. (A counter-argument in favor of access is that the public cannot judge whether the evaluations are misleading without seeing them.)

Most government employees receive a written annual evaluation, which influences whether the employee is promoted, receives a raise, or might even lose her job. Evaluations can become highly newsworthy when the employee’s performance becomes a matter of public concern – for instance, when the employee is nominated for a position of authority, or is removed without explanation.

State laws are mixed on how much access, if any, the public can get to information about employee evaluations.

Some state statutes and court interpretations – including those in Colorado, New York, North Dakota, and Ohio – expressly give the public a right of access to faculty evaluation information under the state open-records law.5 Statutes or court interpretations Connecticut, Kansas, Louisiana, Massachusetts, Missouri and Rhode Island allow government officials to keep some of this information secret.6

In many other states, access depends on a case-by-case “balancing test” in which judges examine how urgently the public needs the information versus how embarrassing the information would be if disclosed.7

Two recent court cases from Florida and California – resulting in opposite conclusions – illustrate how judges have struggled with the public’s right to know about teacher performance.

In 2013, Jacksonville’s Florida Times-Union sued the state Department of Education for refusing to turn over a database of “value added measurements” for each public school teacher in Florida. Those measurements – similar to the Los Angeles Times analysis, comparing students’ predicted standardized test scores against what they actually scored – were used in teacher performance evaluations. The evaluations determine which teachers get raises and promotions.

A state appeals court ruled in February 2014 that the newspaper was entitled to the data.8 Although Florida law allows agencies to withhold teacher performance evaluations until a year after the end of each school term,9 the court ruled that the value-added scores were not actually “evaluations” and did not fall under that exception to disclosure. (In December 2014, the Florida Supreme Court refused to hear the case, so the ruling is final.)

Across the country in California, a state appeals court ruled that essentially the same database released to the Times-Union in Florida is confidential and need not be disclosed.

In 2013, the Los Angeles Times sued under the California Public Records Act to obtain the state’s database of “Academic Growth over Time” scores – scores that, like Florida’s, compare actual student test results versus predicted results – for every teacher in the state, along with a “location code” showing where each teacher was teaching.

A superior court judge ordered the state Department of Education to release the data, but in July 2014, California’s Second District Court of Appeal disagreed.10 The three-judge panel accepted the school district’s contention that disclosure of the records would depress morale and make it harder to recruit good teachers to California. The schools’ interests in confidentiality “clearly outweighed” the public’s “minimal or hypothetical” interest in knowing how each teacher scored, the judges decided.

The Times argued that parents could use the database to pressure their local districts to adopt more effective teaching methods. But the judges said such interference by parents would actually be counterproductive and was an argument in favor of secrecy, not disclosure.

Complaints of employee wrongdoing

Accusations of wrongdoing by government employees are highly newsworthy. Legislators and judges are sensitive to the risk of unfair reputational harm if completely unfounded accusations become widespread public knowledge. But sometimes accusations dismissed as “unfounded” are still of public interest, because the agency may not have thoroughly investigated its own employees. Sometimes, the only way to know whether accusations are being taken seriously is to see the records.11

Where an employee has been cleared of wrongdoing, or the case is still in progress, public access is especially challenging. Courts usually hesitate to release records of disciplinary matters unless the cases have concluded with a finding of guilt – to protect employees against frivolous accusations, or to avoid interfering with ongoing investigations.

For example, when The Seattle Times requested 10 years’ worth of records relating to sexual misconduct complaints against teachers from three Seattle-area school districts, 55 teachers named in the documents responded with a suit seeking to block release of the records on the grounds of personal privacy. Washington’s Public Disclosure Act exempts information from employees’ personnel files “to the extent that disclosure would violate their right to privacy.”12

The Washington Supreme Court split the difference, granting the Times access to records describing the misconduct accusations but ordering the names of the accused employees removed to protect their privacy.13 However, if the accusations were investigated and resulted in a finding of wrongdoing, then the entire file – including the accused teacher’s name – was subject to disclosure.

Some states, such as Wisconsin, specifically exempt records of complaints against employees from their open-records statutes.14 But in a recent case involving teacher disciplinary records, a Wisconsin court took a narrow view of the exemption and ordered disclosure.

In Bartlet v. Appleton Area School District,15 a parent sought access to the disciplinary files of seven special-ed teachers and administrators, having been informed of accusations of child abuse in the district in the past. The school district withheld the records, arguing that the teachers were low-level employees whose personnel files were not a matter of public interest, and that disclosure might interfere with future civil or criminal cases.

The Outagamie County Circuit Court found the school district’s arguments unpersuasive and ordered the records released. As school employees tasked with children’s safety, the employee’s conduct was of public interest, and there was no proof any legal proceedings were imminent or would be disrupted by public access to the records, the judge ruled. Significantly, the judge ruled that the public had an interest even in accusations of wrongdoing that were deemed unfounded, to verify whether the claims were thoroughly investigated.

As these cases illustrate, it’s possible for journalists to effectively investigate claims of wrongdoing by school employees even where schools object on the grounds of “personnel” or “personal privacy.”

When the 'personnel' is the boss

Louisiana law entitles the public to information about the “applicants” for college presidencies,16 but that didn’t stop the trustees of Louisiana State University from concealing the names of those considered for LSU’s presidency in 2013. The trustees simply insisted that they had no “applicants,” because the names were drawn from a private headhunting firm’s stockpile of candidates.

That interpretation only partially convinced the courts. In December 2014, a state appeals court ruled that the public was entitled to the names and backgrounds of four candidates who got as far as being offered interviews, a decision that satisfied neither LSU nor the news organizations suing for access.17

The public’s interest in records about the hiring of senior college executives is undeniable. A college president often is the highest-paid public employee in the state, supervising thousands of employees, a police force, and a budget that can reach into the billions.18 But – especially at the largest state institutions – it’s becoming common for presidential searches to take place entirely outside the public’s view. While state statutes often entitle the public to (at least) a list of the finalists for the position,19 college governing boards have figured out how to “game” those laws by disclosing a “finalist list of one.”20

Colleges typically argue that candidates with sensitive jobs, especially sitting presidents at other institutions, will be deterred from applying if they cannot be guaranteed confidentiality. Influenced by those arguments, legislators in Wyoming exempted presidential searches from their state open-records law in 2013.21 Legislators in Nebraska and Florida have tried to close off access to college presidential searches, but the bills have failed.22

In the shadow of FERPA

In 15 years as head field hockey coach at the University of Iowa, Tracy Griesbaum led the Hawkeyes to three Big Ten tournament championships, six NCAA Tournament appearances and the 2008 NCAA Final Four. But in August 2014, the university fired her, saying only that the removal was “based on concerns about her treatment of student athletes.”23

Reporters for the Iowa Press-Citizen tried to obtain records shedding light on the reasons behind the termination, but ran into a roadblock: the Family Educational Rights and Privacy Act, or FERPA. The newspaper filed a complaint Nov. 6 with the Iowa Public Information Board, contending that the records were withheld improperly.24

Whenever an educational institution is involved, journalists must be prepared to hear “FERPA” in response to any request for public records, justified or not.

FERPA is a federal statute requiring educational institutions to enforce a policy of safeguarding the privacy of students’ education records.25 While the statute applies only to records about identified students that are kept in a central location,26 many college and school attorneys insist that the law entitles institutions to withhold records involving student complaints against employees.

Courts have been inconsistent, to say the least, in how they’ve applied FERPA to requests for employee records. In one especially extreme case, a divided Iowa Supreme Court ruled 4-3 that documents gathered by internal investigators, looking into whether the University of Iowa mishandled sexual assault accusations against two football players, were exempt from public disclosure because of FERPA.27

Other courts, however, have taken a more common-sense and limited view of FERPA, finding that records about employee wrongdoing are the employees’ records and not the students’ – even if students are tangentially mentioned – and therefore cannot be withheld as FERPA “education records.” For example, a Florida court ordered Florida State University to turn over correspondence with the NCAA about possible wrongdoing by tutors who were giving academic help to athletes. The court ruled that the documents, while tangentially mentioning student-athletes, were not those students’ own individual education records.28

Conclusion

Access to personnel records has enabled journalists to do many enlightening stories that would not have been possible without the documents. Using public-records requests, journalists have been able to obtain such personnel records as letters of termination29 and resignation agreements30 – documents that some might assume are off-limits because they’re about personnel issues.

Journalists often are pleasantly surprised at how much the law does entitle them to know about personnel matters. It’s always worth the attempt to file a formal public-records request and make the agency justify redacting or withholding documents.

Even where documents do contain sensitive personal information, it’s rarely permissible for an agency to withhold the entire record. State open-records statutes and court interpretations typically require that, if it’s possible to remove only the confidential personal information and disclose the rest, then the agency must try. Often, journalists find that records are useable for newsworthy stories – to show statistical trends, such as how many teachers have faced abuse charges and how they were disciplined – even with names removed.


Attorney Frank LoMonte is Executive Director of the Student Press Law Center.


Endnotes:

1. See 5 C.F.R. Part 293.311 (describing what information about federal employees will be disclosed under the Freedom of Information Act).

2. Zellner v. Cedarburg Sch. Dist., 731 NW 2d 240 (Wis. 2007).

3. Anklam v. Delta College Dist., 2014 Mich. App. LEXIS 1246, No. 317962 (Mich. App. June 26, 2014) (unpublished).

4. Ian Lovett, “Teacher’s Death Exposes Tensions in Los Angeles,” The New York Times, Nov. 9, 2010.

5. See Colo. Rev. Stat. § 24-72-202(4.5); Denver Post v. Univ. of Colo., 739 P.2d 874 (Colo. App. 1987); Blecher v. Board of Educ., N.Y.L.J., Oct. 25, 1979 (Sup. Ct. Kings Co. 1979); Anonymous v. Board of Educ. for Mexico Cent., 616 N.Y.S.2d 867 (Sup.Ct., Oswego Co. 1994); Hovet v. Hebron Pub. Sch. Dist., 15 Med. L. Rptr. 1118 (Feb. 2, 1988); State ex rel. James v. Ohio State Univ., 637 N.E.2d 911 (Ohio 1994); Dove v. Allen Co. Educ. Serv. Ctr., 118 Ohio App.3d 102 (1997).

6. See Conn. Gen. Stat. § 10-151(c); K.S.A. § 45-221(a)(4); Trahan v. Larivee, 365 So.2d 294 (La. App. 3rd Cir. 1978); Connolly v. Bromery, 447 N.E.2d 1265 (Mass. App. 1983); Wakefield Teachers Assn. v. School Comm. of Wakefield, 731 N.E. 2d 63 (Mass. 2000); Mo. Rev. Stat. § 610.021(13).

7. Ark. Code Ann. § 25-19-105; Iowa Code § 22.7(11); City of Dubuque v. Telegraph Herald, Inc., 297 N.W.2d 523 (Iowa 1980); Mont. Human Rights Div. v. City of Billings, 649 P.2d 1283 (Mont. 1982)(applying balancing test but stating that records are presumably open); W.Va. Code § 18-29-3.

8. Morris Publ’g Grp. v. Florida Dept. of Educ., 133 So. 3d 957 (Fla. Dist. Ct. App. 2014).

9. Fla. Stat. § 1012.31(3)(a).

10. Los Angeles Unif. Sch. Dist. v. Superior Court, 228 Cal. App. 4th 222, 175 Cal. Rptr. 3d 90 (2014).

11. See, e.g., West v. Port of Olympia, 333 P.3d 488 (Wash. App. 2014) (finding that requester was entitled to complete records, including names, of accusations of financial wrongdoing by a state employee, because financial impropriety does not qualify as a “highly offensive” matter that can be withheld on the grounds of personal privacy).

12. R.C.W. § 42.56.230(3).

13. Bellevue John Does 1-11 v. Bellevue Sch. Dist., 189 P. 3d 139 (Wash. 2008).

14. See Wis. Stat. § 19.36(10)(b) (exempting information “relating to the current investigation of a possible criminal offense or possible misconduct connected with employment by an employee prior to disposition of the investigation”).

15. No. 12CV1318 (Wis. Cir. Ct. Feb. 7, 2014).

16. La. Rev. Stat. § 44:12.1.

17. Capital City Press, LLC v. Louisiana State Univ. Sys. Bd. of Supervisors, __ So. 3d __, No. 2013-CA-2000 (Dec. 30, 2014).

18. For example, the University of Florida had revenues of $3.8 billion in the 2013-14 budgetary year and operating expenses of $3.2 billion. See Florida Board of Governors Office of Budgeting and Fiscal Policy, “State University System Operating Budget Summary Fiscal Year 2013-2014,” available at http://www.flbog.edu/about/budget/docs/2013-14_combined-final.pdf (last viewed Jan. 10, 2015).

19. See, e.g., N.M. Stat. Ann. § 14-2-1B (public is entitled to the names of five presidential finalists at least 21 days before the selection is made).

20. See, e.g., Lee Shearer, “Morehead named finalist for UGA presidency,” Athens Banner-Herald, Jan. 28, 2013 (University of Georgia discloses one in-house “finalist,” who is then given the job less than two weeks later). Georgia law entitles the public to the names of “as many as three” finalists, O.C.G.A. § 50-18-72(b)(11), creating a loophole that the Georgia Board of Regents has taken advantage of.

21. Bob Beck, “Law allowing a secret search for UW President enacted,” Wyoming Public Media, Feb. 8, 2013.

22. Lydia Coutré, “Executive searches in Nebraska will remain open after legislative proposal fails,” SPLC News Flash, Feb. 20, 2014; James L. Rosica, “Legislators will again consider loopholes to state’s open records law,” The Tampa Tribune, Dec. 26, 2014.

23. Bryce Miller & Jayson Clayworth, “Records complaint filed against UI,” Iowa Press-Citizen, Nov. 6, 2014.

24. Id.

25. 20 U.S.C. § 1232g(b).

26. Owasso Indep. Sch. Dist. v. Falvo, 534 U.S. 426 (2002).

27. Press-Citizen Co., Inc. v. Univ. of Iowa, 817 N.W.2d 480 (Iowa 2012).

28. NCAA v. Associated Press, 18 So.3d 1201 (Fla. Dist. Ct. App. 2009). The decision was made easier because the journalists agreed to accept the documents with student names blacked out. In a comparable case, a Wyoming judge imposed but then dissolved an order restraining a newspaper from publishing a report about a misconduct investigation of a college president, rejecting the college’s insistence that the report was covered by FERPA because it mentioned the mistreatment of a student. Laramie County Comm. College v. Cheyenne Newspapers Inc., No. 176-092 (Laramie Cty. Dist. Ct. May 25, 2010).

29. Nico Savidge, “Fired UW police captain took photos of unsuspecting women, coworkers, investigation found,” Wisconsin State Journal, May 28, 2014.

30. Warren Bluhm, “Documents: Knutson resigned ‘in lieu of termination.’” Green Bay Press Gazette, Dec. 27, 2014.


Family Educational Rights and Privacy Act, FERPA, personnel records, Predisik v. Spokane School District, reports, winter 2014-15