On personnel information, Virginia’s appeals courts have spoken.
The Mecklenburg Sun doesn’t have the widest circulation or the biggest internet presence, but its story today — in my opinion — has BIG implications for Virginia FOIA users. But only if local and state governmental bodies respect it and the public insists on it.
The paper posted a story today that says, by a unanimous vote, the Town of South Hill voted to give a Richmond attorney five documents it has been fighting to keep secret for more than five years.
Five whole documents. Yay. Um, why do we care?
We care because the disclosure of these five documents effectively brings to a close litigation that was on the verge of making a second trip to the Virginia Supreme Court. We care because it means the Supreme Court’s ruling, and the Court of Appeals’ subsequent application of that ruling, are the law of the land. There are no more appeals, no more remands.
What these courts have said about personnel information under FOIA is the standard that all governmental bodies should adhere to when they’re asked for records they might previously have shunted into the personnel exemption, § 2.2-3705.1(1).
The attorney, Richard Hawkins, originally sought records in 2019 involving complaints from citizens and others about the town manager and resignation letters from the finance director, the public works director and the human resources manager.
South Hill withheld them all, citing the personnel exemption, and Hawkins appealed to the Virginia Supreme Court (at the time, direct appeal to the Court of Appeals wasn’t an option). The Supreme Court overruled the trial court and said the personnel exemption wasn’t all that.
The Supreme Court’s ruling isn’t 100% clear, but here are some choice bits of the ruling:
[W]e hold that “personnel information” for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.
…
[W]e look to an objective test, and hold that data, facts, and statements are private if their disclosure would constitute an “unwarranted invasion of personal privacy” to a reasonable person under the circumstances.
…
By adding a redaction provision and limiting the exemption to “information” instead of the entirety of a public record, the General Assembly demonstrated its intent to narrow the exception and provide for partial disclosure.
The Supreme Court sent the case back to the trial court to look over the contested documents with these principles in mind. The trial court found that but for a few passages, the records did not meet the Supreme Court’s framing of the personnel exemption. The trial court ordered the documents — lightly redacted — to be released.
South Hill appealed to the Court of Appeals (now with expanded jurisdiction), and last month, that court affirmed the trial court, saying that the trial court was in the best position to determine whether disclosure of the specific information was an unwarranted invasion of personal privacy. The Court of Appeals ruling laid out the trial court’s analysis, approving it all.
[T]he Six Page Email [referring to the employee’s performance evaluation] as a whole is not “private” under the personnel information exemption because the employee intentionally and voluntarily sent the documents to the mayor and the town council and, under those circumstances, a reasonable person would not believe such voluntary disclosure to be an unwarranted violation of personal privacy.
…
The trial court reasoned the unredacted portions of the [settlement] Demand Letter do not fall within the personnel information exemption because the document contains allegations of mistreatment between two Town employees and references events entirely related to the employees’ employment with the Town.
… (and this is the big one, because we hear about resignation letters all the time)
The trial court ordered the [resignation] Letter to be produced with minimal redactions, including the removal of other Town employees’ names, references to Town employees’ relationships, and words or phrases indicative of Town employees’ medical conditions. The trial court reasoned that while the [resignation] Letter contains a Town employee’s rationale for resigning, it does not reveal any personal information that a reasonable person under the circumstances would find to be an unwarranted invasion of personal privacy. The trial court further found that the performance evaluation was voluntarily disclosed when the employee included it as part of the [resignation] Letter because a reasonable person under the circumstances would not find the voluntary disclosure of such document to be an unwarranted invasion of personal privacy.
In 2023, I asked the FOIA Council to look into having staff get the word out about the Supreme Court ruling. It was a big ask, but the response was that we should wait to see how it plays out. The way it played out was that the ruling was consistently ignored. It’s being appealed, they said. It’s still in litigation, they said. It’s still in flux, they said.
No more. The case is over. There is nothing left to appeal. The courts have spoken. If the Supreme Court’s original ruling was a little squishy, the trial court and the Court of Appeals have given us some very clear guidelines:
- information that is intentionally/voluntarily shared with others.
- information that would not be an unwarranted invasion of privacy if disclosed.
The personnel exemption never should have been a catch-all. Public bodies just pushed the envelope a little more each year. But with the courts’ rulings, and FOIA’s policy directive to interpret exemptions narrowly, public bodies should be pulling back from the edge. And the public, press, advocates and others who request records should hold them there.