FOI Advisory Council Opinion AO-28-01
May 31, 2001
Mr. Gary Grant
Earlysville, 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 e-mail of April 16, 2001, and your phone conversation of May 16, 2001.
Dear Mr. Grant:
You have asked whether certain information concerning employees of a public school system is open to the public under the Virginia Freedom of Information Act (FOIA). Specifically, you inquire whether an employee's name, employment action taken regarding that employee, assignment and salary would be a matter of public record. You further inquire as to whether a public body must withhold all information properly subject to an exemption, or whether it may release some or all of the information.
Subsection A of § 2.1-342 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. Unless a specific exemption applies to the type of information that you have described, then any documents containing this information would be available to the public.
Subdivision A. 4. of § 2.1-342.01 exempts [p]ersonnel records containing information concerning identifiable individuals from public disclosure. The act does not further define the term "personnel record." However, the Attorney General of Virginia has found that term encompasses records that identify a particular employee and include information such as rank or classification, job performance, job history, employee evaluations, specifics as to the nature of employment, professional qualifications, application information, or other records prepared or maintained by for an agency's internal, administrative purposes.[fn1] The Attorney General has further opined that the exemption covers records within the Act's intended scope of confidentiality that contain personal information concerning individual...employees.[fn2] Note that the exemption applies to any record that contains this type of information. Therefore, if a given record includes any of this information within the zone of privacy, the entire record would be subject to the exemption.
The question now turns to whether the particular types of personnel information that you mention would fall under the personnel records exemption. You first ask if an employee's name would be public record. This does not seem to fall under the type of confidential information that the exemption protects, and a list of employees within the school system would appear to be a public record.
Second, you ask whether employment action taken regarding particular employees would be subject to public disclosure. By way of example, you note that such action might include, among others, nomination for tenure, non-renewal due to lack of proper licensure, early retirement, or career leave. Such information falls within the definition of a personnel record carved out by the Attorney General of Virginia. As such, as it pertains to identifiable employees, any document containing such information would be subject to the personnel records exemption and therefore not subject to the mandatory disclosure requirements of FOIA.
Third, you ask whether the assignment of each employee, such as the name of the school where he works and the teaching subject or job to which he has been assigned, would be a matter of public record. Subsection B of § 2.1-342.01 states that nothing in FOIA should be construed to deny public access to records of the position or job classification of any employee of a public body. Therefore, the position held by each employee of the school system would be subject to public access.
Next, you ask whether the salary of an employee must be disclosed under FOIA. Subsection B of § 2.1-342.01 requires that the official salary or rate of pay and records of allowances or reimbursements paid to any officer, official or employee of a public body must be made available to the public. This requirement applies only to public employees whose annual rate of pay is greater than $10,000. As such, the salary of any employee of the school system who makes more than this amount would be a matter of public record.
In light of the exemptions discussed above, you ask whether a public body may disclose some or all of the information subject to the exemption, or must invoke the exemption and withhold all of the information. Subsection A of § 2.1-342.01, the section setting forth exemptions to FOIA including the personnel records exemption, states that [t]he following records are excluded from the provisions of this chapter but may be disclosed by the custodian in his discretion, except where disclosure is prohibited by law. The Code does not prohibit the dissemination of personnel records to third parties. As such, the custodian of the personnel records may decide to release some or all of the information that it may otherwise properly withhold.
In conclusion, information relating to action taken concerning an employee is properly subject to the personnel exemption found at subdivision A. 4. of § 2.1-342.01. However, the custodian of records containing this information may choose to release some or all information relating to the actions taken. Information concerning the name, position, and salaries of employees, however, is a matter of public record and may not be withheld.
Thank you for contacting this office. I hope that I have been of assistance.
Sincerely,
Maria J.K. Everett
Executive Director
Footnotes:
1. See 1983-84 Op. Atty. Gen. Va. 314, 1985-86 Op. Atty. Gen. Va. 333, 1991 Op. Atty. Gen. Va. 9.
