Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Personnel Records ______________________ Nina Gupta, Esq. Brendan Murphy, Esq.

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved What is the big deal about disclosure? [T]he [ORA] was enacted in the public interest to protect the public--both individuals and the public generally--from "closed door" politics and the potential abuse of individuals and the misuse of power such policies entail. Therefore, the Act must be broadly construed to effect its remedial and protective purposes. The intent of the General Assembly was to encourage public access to information and to promote confidence in government through openness to the public and allow the public to evaluate efficient and proper functioning of its institutions. Wallace v. Greene County, 274 Ga.App. 776 (2005)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Personnel Records and ORA “There is no blanket exclusion exempting from disclosure a person's personnel records.” Fincher v. State, 231 Ga.App. 49 (1998)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved What are personnel records? Evaluations? Employment data (I-9, application)? Contracts? Certification documents? Reprimands?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved How about.... Medical documents (such as FMLA medical certification)? Financial documents? Investigatory files? Background checks?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Personnel record concerns Must balance public right to know against Employee’s privacy rights and restricted access statutes

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Personnel Records Six(!) basic types – (1)General records; (2) Evaluation files; (3) Investigatory files; (4) Medical files; (5) Financial files; and (6) Background checks.

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved General Files Generally contains – (1) Employment application; (2) I-9 and other pre-employment documentation; ►But not drug test results or medical tests! (3) Contracts; (4)Record of personnel action; (5)Reprimands (OCGA ); (6)Records of “closed” investigations ( (a)(5) ►Be careful of FERPA! (7)Requests for use of personal leave; (8)Evaluations (if no independent eval. file).

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved General Personnel File Should redact or remove Day and month of birth; Employee’s SSN Home telephone # and address; Insurance or medical information; Mother’s birth name; Credit or debit card information; Bank account information; Other personal financial information ►Doesn’t include salary!

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Practice Pointer When redacting or otherwise not disclosing information in ORA request, the District “shall specify in writing the specific legal authority exempting such record or records from disclosure, by Code section, subsection, and paragraph.” O.C.G.A. § (h)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Evaluations All... performance evaluation records shall be part of the personnel evaluation file and shall be confidential. O.C.G.A. §

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Evaluation File Good practice pointer to keep evaluations in separate file adjacent to general personnel folder. Prevents accidental disclosure.

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved What are “evaluation records?” Annual evaluations? Formal observations? Informal observations? Letters of direction? Letters of concern? Records of conferences? Anything that might affect an evaluation? Letters of recommendation?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Common scenario Letter from Employee’s Attorney – Dear Superintendent C – This letter is in regard to your ongoing investigation of your employee, my client, Alan M, and what the papers are referring to as the “incident” at Zeb’s BBQ. We would like copies of any and all investigatory reports you have prepared, as well as copies of all statements from the Georgia Tech alumni involved. Do you have to disclose them?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Investigatory File Do we have to disclose the contents of an ongoing investigation? No. “[R]ecords consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees [do not have to be disclosed] until ten days after the same has been presented to the agency... for action or the investigation is otherwise concluded or terminated.” O.C.G.A. § (a)(5)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Investigatory File Must be prepared, however, to disclose after investigation concludes. There can be no doubt that the general public properly is concerned with the operation of its government to the extent that police officers, who hold a position of such public trust, are being appropriately hired, trained, supervised, and disciplined as needed by the public agencies that control them. Evans v. City of Riverdale (1993)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved “Ongoing investigations” When is an investigation no longer “ongoing?” Recommendation for discipline? Referral to PSC? Conclusion of PSC investigation?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved “Ongoing investigations” Investigatory report of regarding employee of State Board of Pardons & Paroles could be released “ten days after it had been presented to the State Board of an officer of the State Board, or if the investigation had concluded or terminated.” Fincher v. State, 231 Ga. App 49 (1998)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved What if your lawyer investigates? Open Records Act “shall not be construed to repeal the attorney-client privilege…or the confidentiality of attorney work product.” O.C.G.A. § (e)(1-2) But, make sure your lawyer is acting as a lawyer!

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved What if your lawyer investigates? Fulton County Hospital Authority v. Miller & Billips, 293 Ga. App. 601 (2008) Hospital received anonymous complaints of sexual misconduct in HR department that did not raise claims or threats of litigation Security department usually conducted these internal types of internal investigations Hospital authority asked legal department to investigate because allegations involved high-ranking employees, as well as employees named as defendants in currently pending lawsuits Legal department investigated to assess potential for litigation, analyze facts, and prepare possible defenses; prepared several documents as a result Court held that these documents were subject to disclosure Investigation was “routine internal inquiry” “Given the nature of the complaints, the evidence supports the conclusion that any expectation of litigation was based on speculation”

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Practice Pointer Keep separate but adjacent investigative files Investigative files are not automatically and necessarily considered part of a generic “personnel file” Fincher v. State, 231 Ga. App. 49 (1998) Irvin v. Macon Tel. Pub. Co., 253 Ga. 43 (1984)

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Medical Records Medical records hold an almost unique place in the privacy spectrum. Federal law generally prohibits disclosure of medical information (ADA, FMLA) and require separation of certain medical records from other types of personnel records.

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Financial Records While an employee’s salary or compensation is public information, the ORA recognizes that certain types of information should be kept private, including – (1)Tax information; (2)Contributions to retirement plans; (3)Withholding for prepaid legal services (and PAGE and GAE dues); (4)Garnishment documents.

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Background Checks Both GBI and FBI provide background checks. The information contained on these background checks “may not be disseminated outside the receiving [agency].”

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Questions?

Copyright Nov by the Law Firm of Brock, Clay, Calhoun & Rogers, LLC All Rights Reserved Thank You