by Linda B. Hollinshead, Esq. and Thomas H. McDonough, Esq.
In today's "freedom of information" world, a common dilemma faced by a public sector employer is the extent to which it must reveal to the public information regarding its employees. Clearly, employee information is sensitive, both to the public employer and to its employees. What, then, should you do, as a public sector employer, when faced with a request for information regarding some of your employees or decisions you made regarding your workforce? This article reviews the impact of Pennsylvania's freedom of information laws on these issues (see Endnote 1).
THE PURPOSE OF FREEDOM OF INFORMATION LAWS AND PROTECTING THE PERSONNEL INFORMATION OF PUBLIC SECTOR EMPLOYEES
There is an inherent tension between the public's right to examine and inspect public records and citizens,' specifically employees,' right to privacy.
Pennsylvania's freedom of information laws, i.e., the Right to Know Act (see Endnote 2) and the Sunshine Act, (see Endnote 3) define the right of the press, individuals and entities to obtain personnel and other public information. The purpose of these laws originates from the belief that an informed public is desirable and that providing the public with access to information is a deterrent to governmental abuse. Both laws, however, provide an exception to the widespread public dissemination of information by permitting public sector employers to keep confidential certain personnel information.
RIGHT TO KNOW ACT
Pursuant to the Right to Know Act, an individual or entity may obtain access to employer documents only where the documents are both "public records" and records of a "public agency." The Right to Know Act, therefore, impacts only public institutions or organizations, not private employers.
IS PERSONNEL INFORMATION SUBJECT TO DISCLOSURE?
A critical issue for a public sector employer to determine is whether its employee personnel information is a "public record."
Generally, employee personnel files are not considered public records and cannot be obtained by the public under the Right to Know Act. However, many states, including Pennsylvania, permit employees to have access to their own personnel files.
Specific information, such as individual employee rating sheets and evaluations, are protected from disclosure under the Right to Know Act. This will be particularly important to you if an applicant who was denied a position seeks to review the applications of individuals who also applied for, and who were perhaps ultimately awarded, the position. The confidentiality of this information is upheld based upon the concern that its revelation could harm the reputation or privacy of the other applicants. You may also refuse to reveal employee names, home addresses, social security numbers and telephone numbers on similar grounds. Nevertheless, you may be required, upon request, to turn over general salary information or attendance records because there is little concern that the release of such information, without corresponding employee names, will harm employees.
ARE EMPLOYEE DISCIPLINARY RECORDS AND SETTLEMENT AGREEMENTS WITH TERMINATED EMPLOYEES SUBJECT TO DISCLOSURE?
As an employer, there are many concerns when contemplating the discipline or termination of an employee. One of these concerns may be whether the investigation of your employee's performance or the outcome of any discipline you impose may be subject to public disclosure.
Fortunately, because such investigations, inquiries and settlements of employment disputes often involve the investigation and revelation of sensitive information concerning an employee's performance, discipline, and/or dismissal, the Right to Know Act typically protects such information from dissemination.
Practical Tips:
Personnel files are confidential. Although an individual employee may request to see his or her own file, a member of the public is not entitled to access all personnel records.
If information is collected and discussed during an investigation of an employee to determine whether discipline or termination was warranted, this information is not subject to public disclosure.
It is appropriate to redact confidential information such as individual employee names, social security numbers, home addresses and telephone numbers.
The Right to Know Act does not require your employees or personnel to assist individuals in compiling the information sought. There is only a duty to make files available for inspection and copying. You may charge for the cost of copying.
SUNSHINE ACT
The Sunshine Act, sometimes referred to as the "Open Meeting Law," requires that all "[o]fficial action and deliberations" by a public agency "take place at a meeting open to the public" unless a closed meeting is permitted under certain limited circumstances (see Endnote 4). As with the Right to Know Act, the Sunshine Act affects only public agencies or organizations, not private employers.
Because your agency or organization may make personnel decisions during a meeting or a series of meetings in which information is gathered and discussed, you may be concerned as to whether those discussions are subject to disclosure.
DO DISCUSSIONS CONCERNING PERSONNEL MATTERS HAVE TO BE HELD AT A MEETING OPEN TO THE PUBLIC?
Similar to Pennsylvania's Right to Know Act, The Sunshine Act protects the confidentiality of discussions regarding employment matters. The Sunshine Act permits you to hold a private "executive session" in which deliberations on personnel issues may proceed without public inquiry.
However, the Sunshine Act departs from the Right to Know Act in one important aspect - although discussions with respect to personnel matters may be kept confidential in an executive session, the final decision on personnel matters, such as an employee's termination, must be disclosed in an open meeting. Therefore, although you may conduct an investigation of an employee or consider applicants for a position within the confines of your agency's human resources department, the ultimate decision impacting an individual employee must be revealed at a meeting open to the public.
DO DISCUSSIONS CONCERNING UNION NEGOTIATIONS HAVE TO BE HELD AT A MEETING OPEN TO THE PUBLIC?
If your agency's workforce is governed by a collective bargaining agreement, you may be concerned that freedom of information laws will give union officials or individual members access to your agency's strategy concerning contract negotiations or pending arbitrations. As with employment matters, the Sunshine Act permits you to properly hold a private executive session to discuss the negotiation of a union contract, the settlement of a union arbitration or other labor relations issues. This enables you to conduct strategy sessions, the content of which may be kept private, and reach an agreement with the union membership without the public's scrutiny.
Practical Tips:
Your agency may face significant pressure to discuss an individual's employment to an open meeting, even where they may be properly conducted during an executive session. Therefore, what should you consider when facing such a request?
The agency, not the individual, has the authority to determine whether to hold an executive session.
From an employee relations perspective, it is important to maintain a consistent position with respect to whether discussions relating to personnel matters, such as discipline, will be held in an executive session or an open meeting.
The final decision, such as a vote to terminate, must be made at an open meeting.
CONCLUSION
Despite the prominence of laws ensuring the public's right to information, your agency or organization should realize that freedom of information laws, such as Pennsylvania's Right to Know Act and the Sunshine Act, recognize the importance of providing public-sector employers a safe harbor in which to make personnel decisions. As a result, your agency may legitimately protect certain sensitive employee information.
ENDNOTES
1. Although this article discusses Pennsylvania law, most states have enacted freedom of information laws addressing these same issues.
2. The Right to Know Act codifies the common-law right of individuals and other entities, such as unions, to inspect "public records." 65 P.S. § 66.1 et seq.
3. The purpose of the Sunshine Act is to offer citizens the opportunity to observe the decision-making process of public agencies by requiring public notice and "open meetings" when agencies discuss or act on agency business. 65 P.S. § 261 et seq.
4. 65 P.S. § 274.
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Disclaimer
The ideas presented in these materials are general in nature and not intended to be contstrued as legal advice and cannot be relied on by any person or entity as legal advice pertaining to any specific situation.