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Job evaluations and personnel files under the Freedom of Information Act
I. The Illinois Freedom of Information Act
The Illinois Freedom of Information Act sets forth in its introductory section its purpose and limitations. Specifically, the Act is intended to provide all persons of this state “full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees .…”1
The Act also specifically limits itself, stating that it is “not intended to be used to violate individual privacy, nor for the purpose of furthering a commercial enterprise, or to disrupt the duly-undertaken work of any public body independent of the fulfillment of any of the fore-mentioned rights of the people to access to information.”2
The “restraints on information” are “limited exceptions to the general rule that the people have a right to know the decisions, policies, procedures, rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people.”3
Most government work is done on paper, and work done verbally is often transcribed. So, as applied to documents, the Act defines “public records” as “all records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, recorded information, and all other documentary materials ….”4
The Act goes on to list 17 examples of public records specifically identified to be within that definition.5
II. The Copley Press case
The issue in the Copley Press case was whether the Peoria Journal Star newspaper was entitled to documents prepared by the Peoria School District Board of Education about the employment of its superintendent. Superintendent Kay Royster was placed on Administrative leave by the school board. Although the Board’s action was taken at an open public meeting, and included some discussion by the individual Board members before voting on the motion, the Board did not further publicly explain why it placed Royster on leave, other than to say the decision was based on her two performance evaluations. The Board did say it sent a letter to Royster explaining the reasons for the decision.
The Peoria Journal Star newspaper, owned by the Copley Press, sent a FOIA request to the School District asking for copies of all documents pertaining to the employment action regarding the Superintendent, which from the FOIA reply of the District, amounted to the two performance reviews and the letter. The request to release those documents under FOIA was denied by the Board on the grounds that the documents were part of Royster’s personnel file.
Copley Press, the parent company, and the Peoria Journal Star, sued the School District for relief under the Act. After filing an uncontested motion for an index of relevant documents (which index identified and listed the two evaluations, one from approximately five months prior and one approximately 17 months prior, and the letter to the employee), the hearing and arguments of the parties, and making an in camera inspection of the documents, the trial court granted the requested relief, finding that the evaluations and letter were not protected under FOIA. “A public body cannot make a non-exempt document exempt merely by placing it in a personnel file,” the court held. “The superintendent’s role is to carry out the policies of the Board. Its explanation to her why it feels she is no longer capable of performing that duty is neither a `personnel matter’ nor `personal information.’”
Copley Press argued that the personnel file exemption in paragraph (b)(ii) was restricted by language in paragraph (b). Because the Superintendent engaged in public duties as a public employee, her evaluation and the letter explaining her effective dismissal could not reveal information that was an invasion of her privacy. Additionally, Copley argued that a public entity must provide more explanation than that the documents were part of her personnel file, or any public entity would be able to hold any document from disclosure as long as it was placed into a personnel file. Instead, Copley encouraged the court to restrict the protected information to that data that is confidential or private, not merely located in a personnel file.
The School District declined all requests for the documents under 7(1)(b)(ii), stating that the documents were part of the personnel file and therefore per se exempt. However, just because an entity declares documents per se exempt, does that make it so? Copley argued no, and the trial court agreed.
III. Freedom of Information Act precedent
The seminal case in Illinois FOIA jurisprudence is Lieber v. Board of Trustees of Southern Illinois University, 176 Ill.2d 401, 680 N.E.2d 374 (1997), wherein the Supreme Court held that as long as a public body can prove that the information contained within the requested document falls within one of the specifically enumerated categories of exempted documents of Section 7, then the requested document is per se exempt from disclosure.6
In general, when a public body receives a request for information under the act, it must comply with that request unless one of the statutory exemptions applies.7 If the public body claims that a requested document falls within one of the exemptions, the public body may deny the request. The requestor is then left with bringing a lawsuit challenging the exemption in the circuit court. The question then becomes what test must a circuit court judge apply in determining whether the public body was justified in refusing the request? Apparently, if the court agrees with the public body that the information requested is exempt, then the analysis ends.8
If the public body asserts an exemption that is not specifically included on the list within the Act, and is therefore not exempt per se, then the trial court must evaluate the particular information on a case by case basis.9 The Court then, and only then, evaluates the information by applying a balancing test.10 The balancing test requires the laying of four factors to decide whether disclosure should be permitted:
1. The plaintiff’s interest in disclosure;
2. The public interest in disclosure;
3. The degree of the invasion of personal privacy; and
4. The availability of alternative means of obtaining the requested information.11
The Act provides for certain exemptions from disclosure12 and the issue was whether or not the documents requested were exempt from disclosure by the Act.
The statutory language at question in this case provides as follows:
(b) Information that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure is consented to in writing by the individual subjects of the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. Information exempted under this subsection (b) shall include but is not limited to:
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(ii) personnel files and personal information maintained with respect to employees, appointees, or elected officials of any public body or applicants for those positions[.]”13
Specific terms used within the statute are not defined within the statute. For example, “public duties” are not defined within the statute. “Personnel files” is also not defined within the Act. “Invasion of personal privacy” is not specifically defined within the statue; however, the exemption itself does explain that the invasion of personal privacy does not include “information that bears on the public duties of public employees and officials.”14 However of note, as the School District attempted to argue to the trial court, is the legislative intent in enacting FOIA, and specifically the personnel file exemption. On third reading of the original bill, May 25, 1983, the chief sponsor, Representative Barbara Flynn Currie, had expressly stated that: “job evaluation forms in personnel files should not be available for open public disclosure.” Unfortunately, the trial court was not influenced by that legislative history or clear expression of legislative intent.
The School District, relying on the per se exemption provision of section 7(1)(b)(ii), did not argue that the release of the documents themselves would constitute an actual, unwarranted invasion of the employee’s personal privacy, or that the documents contained such entries. The trial court’s in camera inspection of the documents found they were as indexed and responsive to the FOIA request, and would not “constitute a clearly unwarranted invasion of personal privacy,” nor that the employee would have any reasonable expectation that they would remain private, nor did they contain any personal information that required redaction. Upon request, the trial court sealed the documents pending a motion for stay, and later stayed the interim order pending appeal. The court made an award of approximately $15,000 in attorneys fees under section 11 of FOIA which had been recently amended, such that the FOIA attorney fee provision now provides for an award of fees and costs if the requestor is regarded as a “prevailing party,” unless the fundamental purpose of the request was to further the commercial interests of the requestor. The court rejected the District’s argument that the newspaper had such a commercial interest in making the request, because it was a for profit enterprise, by relying on other sections of FOIA where news media are favorably treated in respect of the definition of “commercial benefit” so long as their requests are to “access and disseminate information regarding the health, safety, and welfare or the legal rights of the general public….” Finally, the trial court certified the interim orders under Supreme Court Rule 304(a) and the appeal followed.
IV. The Copley Press decision
The Third District Appellate Court reversed the trial court’s decision. Copley Press, Inc. v. Bd. of Ed. For Peoria School District No. 150, 359 Ill.App.3d 321, 834 N.E.2d 558, 296 Ill.Dec 1, (3rd Dist. 2005) [Lv, to app. Denied, December 1, 2005]. Not surprisingly, the court’s analysis started with Lieber, recognizing the presumption that public records are open and accessible. The appellate court reaffirmed Lieber’s holding that the per se analysis applied to personnel file documents, without having to consider a balancing test. The balancing test applies only after it is determined that the information is not per se exempt. The appellate court held that the Superintendent’s evaluations and the letter communicating the Board’s decision to put her on leave were both per se exempt. Therefore, whether or not the documents constituted an invasion of the employee’s personal privacy did not need to be considered.
The next issue was whether the evaluations and the letter were properly placed in the file. As noted before, the Freedom of Information Act does not define the term “personnel file.” Although the Illinois Freedom of Information Act does not define the term “personnel file,” other jurisdictions have. For example, Massachusetts considers disciplinary reports as part as of individual personal information.15 However, the court did not rely on the definition provided by the Personnel Record Review Act, any federal statutes, or legal sources from any other state. Instead, the court applied a common sense realization of what personnel files are for and what they traditionally contain:
The performance evaluations clearly belong in the personnel file. The letter is a response to Royster’s request for written justification for the Board’s decision, and is both a summary of the performance evaluations and a record of disciplinary action. A document cannot be made part of a personnel file simply by placing it there. In this case, however, the requested documents are precisely what one would expect to find in a personnel file and are thus per se exempt from disclosure.
Surprisingly, the court also relied on the Open Meetings Act to support its decision, even though neither party relied on that Act in making their arguments to the court. The panel recognized that Section 2 of the Open Meetings Act permits public bodies to hold closed meetings to determine, among other things, “[t]he appointment, employment, compensation, discipline, performance, or dismissal of specific employees of the public body.” 5 ILCS 120/2(c)(1). If the school board was allowed to meet in private about the Superintendent’s performance and dismissal under the Open Meetings Act, allowing the newspaper access to her performance evaluations and the letter explaining her dismissal would effectively allow the public into the executive session, and nullify the prohibitions of the Open Meetings Act. As recognized earlier, because most government entities operate through documents, even in the transcription of the spoken word, and meetings held in private are often (if not always) reduced to a writing. The court’s holding protected these documents as part of a personnel file, under the Freedom of Information Act, and reinforced the documentation of those decisions made while in executive sessions allowed by the Open Meetings Act.
All public employees should appreciate the decision in Copley. The court made no distinction between the personnel records of Superintendent Royster, the chief operating officer of the School District, and any other employee of the school system. As the School District had argued, there is no basis in the language of FOIA for such a distinction among public employees. Arguably, “public duties” may not include the more mundane responsibilities of public employment such as maintenance or janitorial service, but may be apply to other public jobs. For example, teachers arguably do perform a public duty in educating students. Taken down a slippery slope suggested by Copley’s arguments, the press would be able to discover every teacher’s performance evaluation and publish those results in the Sunday paper. The result of such open disclosure would be to discourage individuals from the close scrutiny of teaching, add additional stress to an already stressful job, and create a chilling effect on providing candid and constructive performance reviews.
Having reversed the trial court’s determination as to the application of the personnel file exemption under section 7(1)(b)(ii), as well as the proper per se analysis, the appellate court did not reach the attorney fee issues, and reversed the award without further discussion. Subsequently, the Supreme Court denied leave to appeal this decision. Upon remand to the trial court, Copley Press recently agreed to the dismissal of remaining claims in their complaint.
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