To Disclose or Not to Disclose:Public Employment Information and The Right-to-Know Law
In the private sector, members of the public can’t walk into company headquarters and request copies of personnel records. However, as most of you are well aware, in the world of local government, requests for employment-related-information is not uncommon. To assist you in the sometimes challenging task of sifting through and responding to these types of requests, let’s take a look at the relevant statutory and case law.
“Internal Personnel Practices”
RSA 91-A:5 contains a list of records that are exempt from disclosure under the Right-to-Know Law. Perhaps the most misunderstood provision in that section is RSA 91-A:5, IV’s exemption for “[r]ecords pertaining to internal personnel practices.” In 1993, the New Hampshire Supreme Court had the first opportunity to address application of the exemption, holding that documents compiled during an internal investigation of a police lieutenant were exempt from disclosure as an internal personnel practice. Union Leader Corp. v. Fenniman, 136 N.H. 624 (1993). The Court determined that records that documented an investigation leading up to potential discipline—as these were—fell within the plain meaning of “internal personnel practices.” In a subsequent case, the Court similarly held that a report generated by a water district about alleged misconduct of its employee was also an exempt internal personnel practice. Hounsell v. North Conway Water Precinct, 154 N.H. 1 (2006).
Fast forward to 2011, when the case of Montenegro v. City of Dover, 162 N.H. 641 (2011) came before the Court. The petitioners had requested the job titles of Dover employees who monitored surveillance equipment, and the city had denied that request on the grounds that this information constituted internal personnel practices. After determining that the list of names did not qualify as a “law enforcement record”—a separate analysis based on the federal Freedom of Information Act (FOIA)—the Court decided that these employee names were not internal personnel practices. In reaching this decision, the Court looked to Fenniman and Hounsell, as well as the federal courts’ interpretation of a FOIA exemption (5 U.S.C. § 552(b)(2) (2006), also referred to as “Exemption 2”), “which shields from compelled disclosure documents related solely to the internal personnel rules and practices of an agency.” Milner v. Department of Navy, 131 S.Ct. 1259, 1262 (2011). The Milner Court had reasoned that “[a]n agency’s ‘personnel rules and practices’ are its rules and practices dealing with employee relations or human resources. . . . They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.” Montenegro, 162 N.H. at 650 (internal citations omitted). In light of Milner, Fenniman, and Hounsell, the New Hampshire Supreme Court in Montenegro held that the requested job titles were not records related to internal personnel practices because they were not “related to internal personnel discipline, . . . a quintessential example of an internal personnel practice,” and were also not “akin to such matters as hiring and firing, work rules and discipline.” Montenegro, 162 N.H. at 650 (internal citations omitted).
Based on this line of cases, records and other information compiled or created as part of an investigation into misconduct of a public employee is exempt from disclosure as “internal personnel practices.”
RSA 91-A:5, IV also exempts from disclosure “personnel, medical, welfare, library user, videotape sale or rental, and other files whose disclosure would constitute invasion of privacy.” In the employment realm, the New Hampshire Supreme Court has interpreted this exemption to mean that “financial information and personnel files and other information necessary to an individual’s privacy need not be disclosed.” Mans v. Lebanon School Bd., 112 N.H. 160, 162 (1972). However, not all information related to an individual’s employment is per se exempt from disclosure. In Mans, the Court held that salary information of public school teachers, contained in the employment contracts, must be disclosed to the public. Although the employment contract was a record contained within the teachers’ personnel files, the Court declined to read the exemption broadly, construing it narrowly and in favor of disclosure, concluding that “disclosure of salaries of school teachers is not a disclosure of those intimate details which ‘would constitute invasion of privacy.’” Id. 164. It found that the legislature intended “a full disclosure of the mode and manner of public expenditures for school purposes.” Id. In that same vein, the Court held in 2011 that records of payments to retired public employees were also not exempt from disclosure under RSA 91-A:5, IV. Union Leader Corp. v. New Hampshire Ret. Sys., 162 N.H. 673 (2011).
The relationship between potential employment and privacy interests came to the forefront last year when a Strafford County superior court judge ruled that applicants for a municipal job have no privacy interest in the fact that they have applied. Clay v. Dover (Strafford Cty. Superior Court., No. 219-2014-CV-124, May 29, 2015).
To fully consider the implications of the Clay v. Dover decision, you first must understand the three-part “balancing test” for determining whether a sufficient privacy interest exists, as set forth by the Court in Lamy v. N.H. Pub. Utils. Comm’n., 152 N.H. 106 (2005):
Private Interest: Determine whether there is actually a privacy interest at stake. The privacy interest must be judged using an objective standard—that is, it does not matter what this particular person’s subjective beliefs about the privacy of the information are. If there’s no privacy interest, stop here because the exemption cannot apply.
Public Interest: Assess the public’s interest in the requested information. Disclosure of the information should inform the public about the conduct or activities of its government.
Balancing Test: Compare the weight of the private interest and the government’s interest in nondisclosure against the weight of the public interest in disclosure. The more compelling interest dictates your response to the request.
In the Clay v. Dover case, the city had withheld names of candidates for superintendent as well as the rubrics used to score the candidates. The city argued two exemptions—“internal personnel practices” and privacy. The judge did not find a privacy interest applied, reasoning as follows:
“But the argument that simply revealing the fact that a person applied for the position violates the person’s privacy is unavailing. The court has no information that any applicant expected his or her identity to be withheld. Moreover, the names of unsuccessful finalists were made public as the process progressed.”
The judge did also mention that the rubric was arguably an “internal personnel practice,” although the city had already voluntarily released a blank rubric. The judge ordered in camera review of the rubrics to determine whether they should be disclosed.
The judge’s decision and reasoning raises so many issues. Does an applicant really have no privacy interest in keeping his or her name private when that applicant already has another job that could be affected? Would this decision have been different if the city had informed all applicants that their identities would be private? If so, wouldn’t that be a subjective privacy test, rather than the objective privacy interest established in Lamy? Although this is a superior court decision and therefore not binding law, we will need to continue to monitor the development of issues raised by this case because if this interpretation prevails, it could create serious concerns for municipalities and candidates for public employment.
It is also worth mentioning that RSA 91-A:5, IV specifically exempts from disclosure medical and financial information. Other sensitive information, such as social security numbers and dates of birth would also be exempt. The Attorney General’s Memorandum refers to any information that could lead to identity theft as having the type of privacy protection contemplated by this exemption. Finally, “test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examinations” are exempt from disclosure. RSA 91-A:5, IV.
Employee Emails, Texts, iMessages & the Like
With the increasingly common practice of employers, including municipalities, issuing phones, tablets, and other electronic communication devices, municipalities are asking such questions as, are all texts, emails, and other forms of electronic communication sent to and from our employees on these devices subject to disclosure?
Sometimes, when we are faced with a new medium or format for information, we become confused about how the Right-to-Know Law applies. But the same analysis applies for these electronic communications, and it starts with determining whether this “information” is even a governmental record in the first place. First, “information” is “knowledge, opinions, facts, or data of any kind and in whatever physical form kept or maintained, including, but not limited to, written, aural, visual, electronic, or other physical form.” RSA 91-A:1-a, IV. Second, the information must be created, accepted, or obtained by a public body or agency “in furtherance of its official function.” Therefore, any communication by the employee related to his/her duties is information that would qualify as a governmental record, while solely personal communications would simply not be in furtherance of official functions and, as a consequence, not a governmental record. As the Attorney General’s Memorandum states at page 21: “Spam or junk e-mail received and incidental personal messages sent or received via email, such as chat, instant messages or other forms of electronic communication, are unlikely to be deemed governmental records, as they are not received in furtherance of an official function.” So, it is not the medium of communication that matters, but the purpose of the communication/information. Often, “acceptable use” policies for employer-sponsored electronic devices require that the device be used for work purposes with only incidental personal use, but whether the employee is violating that policy by engaging in too much personal use or inappropriate personal use of the device is a separate matter.
There are two additional caveats to keep in mind. First, records and information can only be disclosed if they exist. If employee emails that do qualify as governmental records are requested, they do not need to be—indeed, cannot be—disclosed if they have already been deleted. Whether the email should have been deleted is a records retention issue, not a Right-to-Know Law issue, pursuant to RSA 33-A:3-a, a statute containing a list of various types of records and the time period for which they must be retained by a municipality. Many emails will fall into the category of “Correspondence by and to municipality-transitory,” which, according to RSA 33-A:3-a, XXVII, must only be retained “as needed for reference.” However, the key to proper records retention is the subject matter of the record and not solely the fact that it is an email. So, for example, an email involving a municipal policy or program or an email containing information for a welfare application must be retained for a different period of time than “transitory” correspondence. Therefore, it is crucial that your employees are trained in records retention, as well as other policies, like email policies.
Second, what if you conduct an investigation into one of your employees to determine whether he or she is violating your electronic “acceptable use” policy? An interesting twist, and the Attorney General’s Memorandum concludes the following: “[I]f the e-mails are analyzed for evidence of abuse of the governmental e-mail system, particularly if they end up being used as evidence in a personnel action, they likely would then be considered a governmental record.” Of course, if the emails are part of the internal investigation for the purposes of employee discipline, they would likely be exempt as “internal personnel practices” pursuant to Montenegro and the related cases.
Margaret M.L. Byrnes is Staff Attorney with the New Hampshire Municipal Association. She may be contacted at 800.852.3358 ext. 3408 or at email@example.com.
1“[I]n determining whether a particular email constitutes a governmental record, a determination should be made as to the capacity and authority under which the individual legislator is acting in creating or receiving the email” because “if an individual member is imbued with authority to act on behalf of a public body,… the individual member could presumably create or obtain governmental records.” See the Attorney General’s Memorandum on the Right-to-Know Law, http://doj.nh.gov/civil/documents/right-to-know.pdf, p. 21, quoting from Attorney General’s Opinion 11-01.
2See RSA 91-A:4, III-b for a definition of “deleted.”