FOI Advisory Council Opinion 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 e-mail 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.

Sincerely,

Maria J.K. Everett
Executive Director

Footnotes:

1 1983-84 Op. Atty. Gen. Va. 314.

2 1984-85 Op. Atty. Gen. Va. 334.

3 Virginia Freedom of Information Advisory Opinion 07 (2002).