FREEDOM OF INFORMATION
COMMONWEALTH OF VIRGINIA
Personnel Services Manager
County of Washington, Virginia
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 e-mail
of May 14, 2002.
have asked whether employee timesheets may be properly exempted
under the Virginia Freedom of Information Act (FOIA) as personnel
records, or whether FOIA requires disclosure of the timesheets.
indicate that an employee timesheet tracks all sick, vacation,
personal and holiday leave earned and used by a particular
employee. The timesheet also tracks the amount of overtime
and compensatory time owed to the employee by the local governing
body. An employee is identified on the timesheet by name and
of background, you state that both the county attorney and
the county administrator have denied access to employee timesheets
in response to citizen requests under FOIA, citing the personnel
exemption found at subdivision A. 4. of § 2.2-3705 of
the Code of Virginia. However, you question whether subdivision
B. ii. of § 2.2-3705 would require the release of these
records as records of the position, job classification,
official salary or rate of pay of, and records of the allowances
or reimbursements for expenses paid to any officer, official
or employee of a public body. In support of your argument
that such records are subject to mandatory disclosure under
this provision, you mention that the Library of Virginia's
Records Management and Imaging Services classifies time and
attendance records as payroll records.
A of § 2.2-3704 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.
Furthermore, § 2.2-3700 states that the provisions of
FOIA should be construed liberally to promote access, and
that any exemption must be construed narrowly. Subsection
A of § 2.2-3705 gives the custodian of a record the discretion
to decide whether or not to exercise any exemption that may
apply, unless the disclosure is prohibited by law.
A. 4. of § 2.2-3705 allows a custodian to withhold [p]ersonnel
records containing information concerning identifiable individuals,
except that access shall not be denied to the person who is
the subject thereof. While FOIA does not define the term
"personnel record," the Attorney General of Virginia
has opined that the term includes those records maintained
by a public agency which identify an employee, his rank or
classification, rate of pay, performance and/or job history."1
Employee evaluations, specifics as to the nature of employment,
professional qualifications and employment applications have
all been found to be personnel records subject to the exemption.2
Because of the nature of certain information contained within
a personnel file, the personnel record exemption is a privacy-based
exemption, designed to protect the subjects of the records
from the dissemination of personal information.
despite this seemingly broad exemption to protect personnel
records, the General Assembly carved out an exclusion from
the exemption to require the dissemination of certain personnel
records. Specifically, subdivision B. ii. of § 2.2-3705
requires a public body to allow access to records of the
position, job classification, official salary or rate of pay
of, and records of the allowances or reimbursements for expenses
paid to any officer, official or employee of a public body.
In essence, this exclusion makes it clear that there is certain
information that the public is entitled to see that falls
outside of the "zone of privacy"3 established by
the exemption found at subdivision A. 4. of § 2.2-3705.
of statutory construction dictate that statutes or parts of
statutes be read together to give both the meaning intended
by the Generally Assembly. Applying that standard here, it
appears that the General Assembly established two different,
yet compatible standards in addressing personnel records.
The exemption at subdivision A.4. of § 2.2-3705 establishes
a protected area of private information about public employees,
while subdivision B. ii. carves out a zone of permissible
invasion of privacy. While at first glance an employee's salary
may appear to be very personal information, it in fact addresses
the expenditure of the public's money generally. Thus the
exclusion allows for this disclosure.
now to your question, one must determine if the employee timesheets
fall under the umbrella of the exemption for personnel records,
or are subject to disclosure pursuant to the exclusion. Upon
analysis, it appears that the timesheets contain the type
of information intended to be exempted by subdivision A. 4.
of § 2.2-3705. The Attorney General previously held that
payroll reports generated by a locality were exempt from mandatory
disclosure under FOIA because they contained "information
of the type normally found in personnel records, specifically
related to ... hours." It is important to note that the
employee records addressed in that case were those of a private
employer contracting with a locality for a construction job.
Nonetheless, the Attorney General found that FOIA, and the
personnel exemption, applied to personnel records of non-public
employees if the records were in the possession of the public
upon the description you gave of the timesheets in question,
it would appear that this holding of the Attorney General
would also apply to the instant case. The timesheets include
more information than just job classification and rate of
pay. They include more personal information, such as whether
an employee has been out of the office frequently due to illness
or has taken vacation. This type of information does not seem
to fall with the zone of permissible invasion of privacy,
such that it does not directly address the expenditure of
public moneys. Therefore, the custodian of the timesheets
may exercise the exemption at subdivision A. 4. of §
2.2-3705 in order to withhold these records from public disclosure.
final note, you mentioned that the Library of Virginia classifies
the timesheets as payroll records. The Library addresses issues
of records retention under the Virginia Public Records Act,
whereas FOIA deals with public access to these records. Both
statutes define public records in a similar manner. The timesheets
very well may be payroll records in determining how long a
public body must maintain or archive these documents. However,
FOIA, and not the Public Records Act, is dispositive in determining
whether certain public records are subject to public inspection
you for contacting this office. I hope that I have been of
Maria J.K. Everett
Op. Atty. Gen. Va. 314.
Op. Atty. Gen. Va. 333.
Freedom of Information Advisory Opinion 28 (2001).