FOIA Disclosure

FOIA Disclosure - Personnel Files

By Alex Saitta

July 15, 2019

Introduction:

Most of you I gather have followed the Hagood Mill saga. I did two write-ups on it. It ended well with the county retaining ownership of the mill, and leasing the operation of the mill to the Hagood Mill Foundation board.

I have to say one of the most surprising twists occurred when the county government released the Hagood Mill director’s personnel file to the press in response to a Freedom of Information Act (FOIA) request. Click here. The school district never did that in the 12 years I was there. The lawyers took the position they would not, short of a judge’s ruling.

Question:

Thinking back to when I was on the school board, and what happened in this instance, I wondered if a local government is given a FOIA request, does it have to release an employee personnel file, does it have a choice in releasing it or can it refuse to release the personnel file?

Answer:

To answer that, we have to start by looking at the FOIA law as well as relevant court rulings.

The purpose of the FOIA is to create a duty on the part of public bodies to disclose information. The FOIA also lays out fifteen categories of public records that are exempt from mandatory disclosure.

In this case the relevant exemption is number 2 of the 15, and it pertains to information of a personal nature.

SECTION 30-4-40. Matters exempt from disclosure. A public body may but is not required to exempt from disclosure the following information… (2) Information of a personal nature where the public disclosure thereof would constitute unreasonable invasion of personal privacy. Keep in mind, there are personal records or things the government has or are in an employee’s file that are always protected from disclosure like the employee’s health records, tax returns, what he/ she checks out at the library, or their social security number, address and home phone number.

Keep In Mind:

After that, you have to keep in mind a few things as you navigate between what the government must disclose or not:

First, the exemptions from disclosure under the FOIA (e.g., proposed contracts of buying or selling property, the salaries of employees or documents pertaining to the effort to attract a business) do not create a duty of nondisclosure.

That is, a city or county government has a choice to disclose these things; it is not bound to keep them private. For example, if ABC City is negotiating with Walmart in relocating one of their distribution centers, the city can disclose related documents if it wants to or not. It has a choice if the documents are exempt under the law.

Second, if a requested record or file contains material which is not exempt, the government shall separate the exempt and nonexempt material and make the nonexempt material available to the public.

Let’s say the press requests the file of on-going talks of the sale of XYZ property. Just because some information in the file is exempt from disclosure, the government cannot carte blanche deny the entire request. Instead, it must sort through the file, disclosing what is not exempt.

Boils Down To This:

When it comes down to personnel files and their disclosure, it boils down to the FOIA and judicial rulings like the one in Burton vs. York County Sheriff’s Department (2004, South Carolina):

Our Supreme Court has defined the right to privacy as the right of an individual to be let alone and to live a life free from unwarranted publicity. However, one of the primary limitations placed on the right of privacy is that it does not prohibit the publication of matter which is of legitimate public or general interest. Indeed, the Court has held if a person, whether willingly or not, becomes an actor in an event of public interest, then the publication of his connection with such an occurrence is not an invasion of his right to privacy.

So it is a balancing act: the public’s right to know vs. protecting the employee’s privacy. The determining factor is if the surrounding issue has risen to the level of legitimate public interest, and the employee’s connection to that issue.

Let’s say Citizen Smith is upset his road is not being paved, and is on a mission to dig up dirt on Mr. Jones, who is the head of the county government’s road paving department. Likely Mr. Smith’s FOIA request to see Mr. Jones’ personnel file will be denied and that will be held up in court. Citizen Smith’s concern is personal and does not deal with an interest of public concern.

If Mr. Smith is part of citizens group that uncovered Mr. Jones has been paving roads of his neighbors and friends only, and the press is now investigating, likely the parts of Mr. Jones’ personnel file relating to this issue will have to be disclosed publicly upon request.

Director At Hagood Mill’s File:

Like the Greenville News article states above, the paper filed a FOIA request and the county provided the personnel file of the Hagood Mill director.

The thinking of the county government, I’m guessing was two-fold. One, it realized this issue had risen to one of public interest with so many attending the council meetings and press coverage. As a result, it was obligated to disclose the contents of the director’s personnel file. Two, the council was taking so much heat for terminating the director, it decided to tell its side of the story by releasing the file, mainly the write-ups and his performance short-comings.

Liability:

I credit the county for its openness with such a public issue.

I can tell you the school district administration would have never done this, and would have fought such a release if it went to court. In court the district would have argued disclosing the performance write-ups was an invasion of personal privacy and thereby exempt from disclosure. Their thinking would have been, that exemption would have given the district a choice to release the personnel file or not, and it would have not have fearing liability. That is, if something in the file was not accurate and defamed the employee and the public disclosure would have prohibited him from finding gainful employment, the employee could then have successfully sued the district.

Also, the district would not have wanted to pollute the public square with the facts and opinions on the situation, thinking it could bias board members or jurors in any kind of school board grievance or civil case the employee files. That too could open up the district administration for harmful repercussions.

SC Attorney General’s View:

The attorney general wrote an opinion on this subject in 2015, and it has a few relevant points to keep in mind.

“Correspondence relating to audits of individual positions, which are individually identifiable and relate to one person's level of performance or ability should not be released. Such documents relate solely to the individual employee's personal status and should be considered exempt from disclosure as a personnel record.”

"Under the scholastic record and public interest exceptions to public record disclosure, the Citadel could under the Freedom of Information Act refuse to disclose to an individual his personnel files, including confidential faculty evaluations of the individual's teaching performance.”

"It is my opinion that under the Freedom of Information Act, such personnel matters, relating generally as stated in your letter to strengths and weaknesses of employees, are excluded from public inspection" Again, if issue is narrow to that employee and has not risen to a level of public concern, the contents of the employee’s file are likely exempt from disclosure.

As you can see, reading all this, it is all gray until a judge rules on it. For instance, do the set of facts in a particular case reach the threshold of making it an issue of public concern? Often that is not clear. Then only a judge can rule on that for sure.

As a result, a local government with an aversion to disclosure, will deny the request and hope the citizen or newspaper doesn’t take the case to court. And if it does, the judge then rules the way of the government.

Attorney Fees:

If a local government refuses to release this or that document, is taken to court and the judge rules that document is not exempt, the document must be released. The plaintiff is then entitled to collect attorney fees and other costs to litigate the case, from that government. The factors for the court to consider when determining such an award are the nature and difficulty of the case, the time devoted to the case, and customary legal fees for similar services.

Remember too, a willful violation or non-compliance with the FOIA is a misdemeanor. However, it would be next to impossible to prove a local government willfully violated the law short of a court order the government then refused to comply with.

Finally, keep in mind, when a FOIA request is denied, section 30-4-30 specifies that the reason for such a denial must be clearly stated.

By The Way:

There was a concern raised the administration was telling employees not to vent their grievance and upset about the Hagood Mill situation on Facebook or other social media platforms. If this is true, did the administration have a right to do this?

On this issue, there is another balance to contend with: the first amendment rights of the employees vs. the government’s right to smoothly provide its services. (US Supreme Court, Connick vs Myers, 1983)

For instance, if an employee feels he is being treated unfairly, and puts it on Facebook he was wronged by his manager and the manager does this to all employees in this department, the government can force the employee to stop writing about that on Facebook. It is not an issue of public concern and it is likely disrupting the functioning of that department and the service it provides the public.

If an employee spoke up at a school board meeting opposing the big raise the superintendent just received and he is not worth the money, it would be illegal for the administration to tell the employee he could speak at the meeting. In this Hagood Mill situation, if county employees or volunteers were venting their frustration with the decision to fire the employee and with the new direction the council was taking the mill, that is an issue of public concern. It would have been wrong and illegal for the administration to tell employees not to post on Facebook about that.