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Print articleVirginia Supreme Court Ruling Impacts Confidentiality of Government Employee Personnel Records
June, 2023 - Michael W.S. Lockaby
In October 2022, the Virginia Supreme Court decided the case of Hawkins v. Town of South Hill (view the opinion here), which fundamentally alters 40 years of precedent in the Commonwealth concerning what is considered confidential and not subject to production in response to a Virginia Freedom of Information Act (“FOIA”) request. Earlier this month, the Circuit Court issued its decision on remand in light of the Virginia Supreme Court’s decision in Hawkins. The fallout from these two cases is continuing to be felt by local government managers and human resources professionals across the Commonwealth.
Historically, an employee’s personnel record was considered to be confidential, except to himself or herself, under the Virginia FOIA, Virginia Code § 2.2-3705.1, subsection 1. Thus, when a local government was responding to a FOIA request, it would focus on whether a given document or information was legitimately part of a personnel file, and where the record was deemed part of the personnel file, the record was withheld from production. While the term “personnel record” or “personnel information” was somewhat elastic, it was generally understood to mean personal data concerning the employee's age, length of service, amount of training, education, compensation level, and other pertinent personal information, and it included performance reviews, records of personnel actions, and comments from the public on the employee. The only information generally produced about an employee in a FOIA request was the employee’s name, position, wages, reimbursements, and contract of service, if applicable.
In Hawkins, numerous FOIA requests were issued that sought documents from the Town of South Hill relating to employment disputes involving the Town Manager and several employees, including resignation letters, communications from employees to the Town Council regarding the Town Manager, and other communications between town staff and the mayor and council. Mr. Hawkins believed that the town’s responses to the FOIA requests were deficient and withheld relevant information. The town, by contrast, argued that it was responding to the FOIA request consistent with long-standing Virginia precedent.
In response to these arguments, the Virginia Supreme Court adopted a new test, that focuses on whether the information is personal rather than whether the record contains personnel information. Under the new test, a Virginia governmental entity must assess whether (1) the information is part of a personnel record and only there because of the person’s employment with the government; and (2) it is private. For purposes of this two-part test, information is “private” if an objective person would consider its disclosure an unwarranted invasion of personal privacy. In that case, the question is whether information rather than the entire document or record itself can (and should) be withheld. The Virginia Supreme Court’s decision was based, in part, on the fact the General Assembly expressly amended the Virginia FOIA statute in 2016 to make clear that the law permits the redaction of personnel information in lieu of withholding the entire public record. The Virginia Supreme Court interpreted this action by the General Assembly as narrowing the scope of the exemption to public disclosure.
When this case was remanded (or sent back to) the Virginia Circuit Court, that court determined that virtually all of the at-issue documents should be disclosed, subject to redaction of certain individual words and phrases. The time for appeal has not yet expired, and it is not yet known if the town will appeal the ruling.
What do these decisions mean for government employers? Going forward, governmental entities will need to assess whether only portions of a record contain personnel information. Unless the entire record contains personnel information, it will need to be produced with personnel information redacted. This will complicate the process for governmental entities. It will also increase the risk of employee-based claims of invasion of privacy.
While the Hawkins decision certainly alters the test, Virginia governmental entities will need to continue to assess whether or not certain records should be produced, withheld, or produced with certain information redacted. Documents that we previously might not have considered to contain personnel information may now fall under the Supreme Court’s analysis. As always, on close questions, it is wise to consult with your local government attorney in order to give you the best chance of defending your decision should litigation arise.
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Historically, an employee’s personnel record was considered to be confidential, except to himself or herself, under the Virginia FOIA, Virginia Code § 2.2-3705.1, subsection 1. Thus, when a local government was responding to a FOIA request, it would focus on whether a given document or information was legitimately part of a personnel file, and where the record was deemed part of the personnel file, the record was withheld from production. While the term “personnel record” or “personnel information” was somewhat elastic, it was generally understood to mean personal data concerning the employee's age, length of service, amount of training, education, compensation level, and other pertinent personal information, and it included performance reviews, records of personnel actions, and comments from the public on the employee. The only information generally produced about an employee in a FOIA request was the employee’s name, position, wages, reimbursements, and contract of service, if applicable.
In Hawkins, numerous FOIA requests were issued that sought documents from the Town of South Hill relating to employment disputes involving the Town Manager and several employees, including resignation letters, communications from employees to the Town Council regarding the Town Manager, and other communications between town staff and the mayor and council. Mr. Hawkins believed that the town’s responses to the FOIA requests were deficient and withheld relevant information. The town, by contrast, argued that it was responding to the FOIA request consistent with long-standing Virginia precedent.
In response to these arguments, the Virginia Supreme Court adopted a new test, that focuses on whether the information is personal rather than whether the record contains personnel information. Under the new test, a Virginia governmental entity must assess whether (1) the information is part of a personnel record and only there because of the person’s employment with the government; and (2) it is private. For purposes of this two-part test, information is “private” if an objective person would consider its disclosure an unwarranted invasion of personal privacy. In that case, the question is whether information rather than the entire document or record itself can (and should) be withheld. The Virginia Supreme Court’s decision was based, in part, on the fact the General Assembly expressly amended the Virginia FOIA statute in 2016 to make clear that the law permits the redaction of personnel information in lieu of withholding the entire public record. The Virginia Supreme Court interpreted this action by the General Assembly as narrowing the scope of the exemption to public disclosure.
When this case was remanded (or sent back to) the Virginia Circuit Court, that court determined that virtually all of the at-issue documents should be disclosed, subject to redaction of certain individual words and phrases. The time for appeal has not yet expired, and it is not yet known if the town will appeal the ruling.
What do these decisions mean for government employers? Going forward, governmental entities will need to assess whether only portions of a record contain personnel information. Unless the entire record contains personnel information, it will need to be produced with personnel information redacted. This will complicate the process for governmental entities. It will also increase the risk of employee-based claims of invasion of privacy.
While the Hawkins decision certainly alters the test, Virginia governmental entities will need to continue to assess whether or not certain records should be produced, withheld, or produced with certain information redacted. Documents that we previously might not have considered to contain personnel information may now fall under the Supreme Court’s analysis. As always, on close questions, it is wise to consult with your local government attorney in order to give you the best chance of defending your decision should litigation arise.
Link to article
