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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-04-03
February
14, 2003
Mr. Roderick
R. Ingram
Assistant City Attorney
Virginia Beach, 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 a phone
conversation December 3, 2002, with Ms. Donna Mickley, and
your email of December 23, 2002.
Dear
Mr. Ingram:
You
have asked a question concerning the scope of the personnel
records exemption in the Virginia Freedom of Information Act
(FOIA).
You
indicate that this question was raised in response to a "quality
of work environment" survey completed by employees of
the City of Virginia Beach ("the City"). Most of
the survey focused on questions concerning general work environment
issues, and did not ask questions concerning particular employees.
However, you indicate that the survey also contained an open-ended
comments section. Some respondents commented about identifiable
City employees or officials, and most of those comments concerned
the job performance of those identifiable individuals. The
City forwarded comments about identifiable individuals to
the appropriate supervisors for review and, if necessary,
action. The City's human resources department was concerned
about releasing the comments to the public if the surveys
were requested under FOIA. You ask if the comments could be
properly withheld under the personnel exemption, and more
generally, what is a personnel record for purposes of the
FOIA.
Subsection
A of § 2.2-3704 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. Subdivision A 4 of §
2.2-3705 gives the custodian of records the discretion 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 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 the information contained within
a personnel record, the personnel records exemption is a privacy-based
exemption, designed to protect the subject of the record from
the dissemination of personal information.3 In order to protect
that privacy, the exemption applies to more than just records
contained in a personnel file in a supervisor's or human resource
manager's office. Instead, the exemption would apply to any
record held by a public body that relates to an identifiable
employee concerning the nature of the employment, job capacity
or performance, or is otherwise related to the scope of employment.
In the
scenario you describe, the City received comments about identifiable
employees on a work environment survey. The facts indicate
that these comments will be reviewed and acted upon, if appropriate,
by the appropriate supervisors and treated like any other
grievance or complaint about an employee. While the surveys
themselves would not be considered personnel records, the
portions of the surveys containing complaints and comments
about identifiable employees can be treated as personnel records
as the comments relate to the job performance or scope of
an individual's employment. If one employee filed a grievance
or a complaint about another employee with a supervisor or
the human resource department, this document would be considered
a personnel record and could be withheld under the personnel
exemption. The analysis does not change just because of the
manner in which the complaint was received. If a survey contains
comments related to the scope of the employment of an identifiable
individual, this information may be withheld from public disclosure
in order to protect the privacy of the identified employee.
Based
on your description of the surveys, the survey in its entirety
does not appear to be a personnel record. If the surveys were
requested under FOIA, the appropriate response would be to
release the records. However, the City has the discretion
to exercise the personnel exemption and redact out any portion
of the response that identifies an employee in order to protect
the privacy of that individual.
Thank
you for contacting this office. I hope that I have been of
assistance.
Maria J.K. Everett
Executive Director
1
1983-84 Op. Atty. Gen. Va. 314.
2 1985-86
Op. Atty. Gen. Va. 333.
3 Virginia
Freedom of Information Advisory Opinion 07 (2002).
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