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MRSC has joined with Janice Corbin and Janet May, Partners, Sound Employment Solutions, Rhonda Hilyer, President, Agreement Dynamics,and Bruce Schroeder, Employment/Litigation Attorney, Summit Law Group, to bring you the "HR Advisor" article series on employment and labor law issues affecting Washington local governments. The "HR Advisor" will feature a new article each month with timely HR management information and advice you can use.*
How to Respond To a Request for Personnel Records
Under the Public Disclosure Act
September 23, 2003
Bruce Schroeder
Employment/Litigation Attorney
Summit Law Group
Many public employers are facing increasing requests for employee information under the authority of the Public Disclosure Act ("PDA"), RCW 42.17.250 et. seq. (Note) Many times the information requested has been characterized internally as "confidential" because it involves personal information relating to an employee, allegations of misconduct and investigative notes from conversations with the alleged victim, the alleged wrongdoing and several other employees within the Agency or policy making proposals that may govern the direction the Employer takes in the future. This Article discusses the duty to disclose this type of information under the PDA and the procedure for responding to an information request.
Not Everything in the Employee File Has to be Disclosed
The PDA requires public agencies to disclose "public records", a term that is broadly defined to include any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency, regardless of physical form or characteristics. RCW 42.17.020(36). While there are exemptions to the duty to disclose public records, these exemptions are narrowly construed in the interest of open access to government.
Personnel Records
There are a number of exemptions to protect personal information contained in personnel files, such as medical information, home addresses, social security numbers and financial information. For example, personal information in files maintained for employees, appointees, or elected officials of any public agency is exempt to the extent that disclosure would violate the individuals' right to privacy. RCW 42.17.310(1)(b). The statute defines information the disclosure of which would violate an individual's right to privacy as information that (1) would by highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. RCW 42.17.255. Both tests must be satisfied in order for the information to be exempt: even if information is highly offensive, it must be disclosed if it is of legitimate public concern.
The residential addresses and telephone numbers of employees which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees are specifically exempted from the disclosure obligations of the PDA. RCW 42.17.310(1)(u). Credit card numbers, debit card numbers, electronic check numbers, card expiration dates, or bank or other financial account numbers that are supplied to an agency are also exempt unless disclosure is expressly required by law. RCW 42.17.310(1)(ss).
Performance evaluations are generally exempt because disclosure of such evaluations would be offensive to a reasonable person and are of small public concern. However, performance evaluations that relate to specific acts of misconduct must be disclosed.
Applications for public employment, including the names of applicants, resumes, and other related material submitted with respect to an applicant are exempt. RCW 42.17.310(1)(t).
Despite these exemptions, it may be surprising to learn just how much information is discoverable. For example, in King County v. Sheehan, 114 Wn. App. 325, 57 P.2d 307 (2002), the Police Department received a request from individuals who operated a highly critical website of police for a list of the full names, ranks and pay for all officers employed by the Department. In an attempt to learn what information might be obtainable by a person who had access to the full names of law enforcement officers, the Department determined that it was possible to obtain officers' home addresses and other personal information via the public access section of the King County Assessor's Office. To protect the officers' safety and the safety of their families, the Department only provided the last name of the officers, their rank and salary. The Court held that the officers' full name was not exempt. The Court rejected the Department's argument that release of the names would jeopardize the success of undercover operations and place the officers' safety at risk because the department frequently released the officers' names in connection with specific incidents.
Investigative Records
Investigative records compiled by an employing agency conducting a current investigation of a possible unfair practice under RCW 49.60 (Washington's Anti-Discrimination Act), or of a possible violation of other federal, state or local laws prohibiting discrimination in employment are exempt. RCW 42.17.310(1)(ee). This exemption applies to ongoing investigations by the employer of one of its employees for alleged discrimination or harassment. However, once the investigation is completed, the investigative records are subject to disclosure. Thus, it is very important to make sure that investigation notes, memoranda and reports are written objectively and with the understanding that they may be disclosed to the public at large once the investigation is completed.
Documents Regarding Policy Making
Preliminary drafts, notes, recommendations, and intra-agency memoranda in which opinions are expressed on policies formulated or recommended are general exempt, except that a particular record is not exempt when it has been publicly cited by an agency in connection with any agency action. RCW 42.17.310(1)(i). This exemption protects the deliberative process, in which public employees exchange opinions and ideas prior to an agency decision. In order to rely on this exemption, an agency must be able to establish the following: (1) that the records withheld contain pre-decisional opinions or recommendations expressed as part of the deliberative process; (2) that disclosure of such records would inhibit the flow of ideas and opinions, that disclosure would injure the deliberative process; (3) and that the records contain policy recommendations/opinions rather than factual data. Where the record contains both exempt (policy recommendations) and non exempt (factual data) information, the record may need to be produced in a redacted form. Moreover, once the policies or recommendations are implemented, the records are no longer protected from disclosure.
How to Respond to a PDA Request?
A public agency is required to respond "promptly" to an information request under the Public Disclosure Act. This has been interpreted to mean that the agency has five business days to take one of the following actions: produce the record(s) for inspection; deny access to the requested record(s) with an explanation of why the records are exempt from disclosure; or provide a reasonable estimate of the additional time necessary to respond to the request. RCW 42.17.320. Members of the public are entitled to copy non-exempt records for the agency's normal copying charge. Such cost should not exceed fifteen cents (.15) per page unless the agency has promulgated rules justifying a higher charge. The agency may not charge a party requesting records for the cost associated with locating the requested records.
If a party is denied access to the requested information, he/she may initiate a lawsuit in superior court to compel disclosure. RCW 42.17.340(1). If the public agency fails to demonstrate an exemption to the duty to disclose the requested information applies, the agency will be liable for all costs, including reasonable attorney fees, of the party seeking disclosure. RCW 42.17.340(4).
Note: Even if a particular record is exempt from disclosure under RCW 42.17, it may be discoverable by the union under RCW 41.56. The duty to disclose information under RCW 41.56 is not discussed in this article.
| Bruce Schroeder is an employment / litigation attorney with Summit Law Group, Seattle. Bruce's practice is concentrated on representing management in the entire range of employment law matters. More. |  |
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Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
More. Janet May is a partner and attorney with Sound Employment Solutions, LLC, Seattle. Janet has over ten years of experience in the labor and employment law field, and has represented both management and labor. More. |
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| Rhonda Hilyer, President and Founder of Agreement Dynamics, is an international consultant with a reputation for helping convert traditional, conflict-based environments into productive, collaborative ones. More. |  |
*The Articles appearing in the "HR Advisor" column represent the opinions of the authors and do not necessarily reflect those of the Municipal Research & Services Center.