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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-28-01
May
31, 2001
Mr. Gary Grant
Earlysville, Virginia
The staff of
the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your email
of April 16, 2001, and your phone conversation of May 16,
2001.
Dear Mr. Grant:
You have asked whether
certain information concerning employees of a public school
system is open to the public under the Virginia Freedom of
Information Act (FOIA). Specifically, you inquire whether
an employee's name, employment action taken regarding that
employee, assignment and salary would be a matter of public
record. You further inquire as to whether a public body must
withhold all information properly subject to an exemption,
or whether it may release some or all of the information.
Subsection A of
§ 2.1-342 of the Code of Virginia declares that [e]xcept
as otherwise specifically provided by law, all public records
shall be open to inspection and copying by any citizens of
the Commonwealth. Unless a specific exemption applies
to the type of information that you have described, then any
documents containing this information would be available to
the public.
Subdivision A. 4.
of § 2.1-342.01 exempts [p]ersonnel records containing
information concerning identifiable individuals from public
disclosure. The act does not further define the term "personnel
record." However, the Attorney General of Virginia has found
that term encompasses records that identify a particular employee
and include information such as rank or classification, job
performance, job history, employee evaluations, specifics
as to the nature of employment, professional qualifications,
application information, or other records prepared or maintained
by for an agency's internal, administrative purposes.1
The Attorney General has further opined that the exemption
covers records within the Act's intended scope of confidentiality
that contain personal information concerning individual...employees.2
Note that the exemption applies to any record that contains
this type of information. Therefore, if a given record includes
any of this information within the zone of privacy, the entire
record would be subject to the exemption.
The question now
turns to whether the particular types of personnel information
that you mention would fall under the personnel records exemption.
You first ask if an employee's name would be public record.
This does not seem to fall under the type of confidential
information that the exemption protects, and a list of employees
within the school system would appear to be a public record.
Second, you ask
whether employment action taken regarding particular employees
would be subject to public disclosure. By way of example,
you note that such action might include, among others, nomination
for tenure, non-renewal due to lack of proper licensure, early
retirement, or career leave. Such information falls within
the definition of a personnel record carved out by the Attorney
General of Virginia. As such, as it pertains to identifiable
employees, any document containing such information would
be subject to the personnel records exemption and therefore
not subject to the mandatory disclosure requirements of FOIA.
Third, you ask whether
the assignment of each employee, such as the name of the school
where he works and the teaching subject or job to which he
has been assigned, would be a matter of public record. Subsection
B of § 2.1-342.01 states that nothing in FOIA should be construed
to deny public access to records of the position or job classification
of any employee of a public body. Therefore, the position
held by each employee of the school system would be subject
to public access.
Next, you ask whether
the salary of an employee must be disclosed under FOIA. Subsection
B of § 2.1-342.01 requires that the official salary or rate
of pay and records of allowances or reimbursements paid to
any officer, official or employee of a public body must be
made available to the public. This requirement applies only
to public employees whose annual rate of pay is greater than
$10,000. As such, the salary of any employee of the school
system who makes more than this amount would be a matter of
public record.
In light of the
exemptions discussed above, you ask whether a public body
may disclose some or all of the information subject to the
exemption, or must invoke the exemption and withhold all of
the information. Subsection A of § 2.1-342.01, the section
setting forth exemptions to FOIA including the personnel records
exemption, states that [t]he following records are excluded
from the provisions of this chapter but may be disclosed by
the custodian in his discretion, except where disclosure is
prohibited by law. The Code does not prohibit the dissemination
of personnel records to third parties. As such, the custodian
of the personnel records may decide to release some or all
of the information that it may otherwise properly withhold.
In conclusion, information
relating to action taken concerning an employee is properly
subject to the personnel exemption found at subdivision A.
4. of § 2.1-342.01. However, the custodian of records containing
this information may choose to release some or all information
relating to the actions taken. Information concerning the
name, position, and salaries of employees, however, is a matter
of public record and may not be withheld.
Thank you for contacting
this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
1
See 1983-84 Op. Atty. Gen. Va.
314, 1985-86 Op. Atty. Gen. Va. 333, 1991 Op. Atty. Gen. Va.
9.
2 1991
Op. Atty. Gen. Va. 9.
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