TRANSPARENCY TUESDAY: "That's personnel" is rarely the right response
How public employees are performing their jobs (or whether they're showing up at all) would appear to be pretty essential information for journalists (or just inquisitive citizens) to figure out whether government agencies are, or aren't, working effectively.
It's long been the case, however, that personnel information is some of the toughest information to obtain by way of a public records request, in part because of the myth that personnel records are always confidential.
For instance, a North Carolina television reporter was told that, because of "personnel confidentiality," she couldn't be told why the City of Charlotte was still paying the city's former top tourism official for at least two months after he left the job, or how long it would continue paying him into the future.
And a New York requester recently was denied access to questionnaire responses completed by candidates for a city planning board, which asked about their qualifications to serve. "That's personnel information," she was told. But the head of New York's Committee on Open Government knew better: "The word 'personnel' doesn’t appear in the Freedom of Information Law,” Robert J. Freeman told The Daily Mail.
Indeed, the word "personnel" rarely appears in any state's public-records act -- despite what many government functionaries have been trained to believe.
State laws typically take one of two alternative approaches to personnel information:
- Personnel files are considered confidential, but with a laundry list of exceptions. For example, in North Carolina, the public is entitled to see such personnel information as contract terms, pay raises, dates of disciplinary actions, promotions or demotions, and the basis for firing.
- Personnel files are subject to a "balancing test" of public interest versus privacy interests, and material is confidential if disclosure would be an "unwarranted" invasion of personal privacy. That's the approach in Arizona, for instance, and California as well.
Take this recent piece by the Newark Star-Ledger, whose reporters combed through the vacation and sick-leave records of high-ranking state employees to discover that some of them stood to cash in on six-figure jackpots (known in government circles as "boat payments") for unused leave time. The roster included some members of the state legislature who, conveniently, had voted to "grandfather" themselves into New Jersey's generous leave-banking system while capping it for more recent hires, according to the Star-Ledger.
And take the by-now-infamous story of New York City schoolteachers who -- protected by tenure, but caught in a glacially slow review process for personnel actions -- can spend as long as a decade drawing full pay for sitting parked in "reassignment centers" (pejoratively called "rubber rooms") where they await word on the appeal of their firings.
Stories like these are possible only because all personnel records are not always confidential, and journalists who are told otherwise should be prepared to respond, sweetly but resolutely, "Can you show me where in the law it says that?"
Government agencies generally have not fared well when they've tried to conceal reports of internal misconduct investigations behind the "personnel curtain," so such refusals should be vigorously challenged. In any state with a "privacy balancing test," the public's right to know of official misconduct -- particularly if the employee is high-ranking or holds a sensitive job (e.g., police officer) -- should override any claim of confidentiality. (And that is doubly true if the misbehavior is illegal, as there is no legitimate expectation of privacy in committing crimes.)
The myth surrounding the "secret personnel file" likely results from the delicacy with which those files -- which do contain sensitive information such as Social Security numbers and employees' medical conditions -- are handled in the typical office. While it's right to be cautious about the confidential portions of personnel files, quite a bit of what appears in a government employee's file is manifestly the public's business, including salary and job qualifications.
As with many public-records denials, the blanket "that's personnel" denial should alert a good journalist to go into used-car haggling mode. Maybe you can't get the whole file -- you weren't going to publish that medical leave request anyway -- but with skillful bargaining (and knowledge of what the law doesn't say), you should get what you need.
Tagged: public records, Transparency Tuesday