VIRGINIA FREEDOM OF INFORMATION ADVISORY COUNCIL COMMONWEALTH OF VIRGINIA

AO-07-02

July 23, 2002

Ms. Marsha Johnson
Personnel Services Manager
County of Washington, Virginia
Abingdon, 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 May 14, 2002.

Dear Ms. Johnson:

You 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.

You 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 employee number.

By way 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.

Subsection 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.

Subdivision 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.

However, 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.

Rules 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.

Turning 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 body.

Based 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.

As a 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 and copying.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

¹1983-84 Op. Atty. Gen. Va. 314.

²1985-86 Op. Atty. Gen. Va. 333.

³Virginia Freedom of Information Advisory Opinion 28 (2001).