Personnel records are the records maintained by employers such as colleges or universities to document the employment history of individual employees. Personnel records can be in any form, such as paper, electronic, and audio or video files in a variety of formats. What establishes the nature of personnel files is the quality of the information in them, not their physical nature. In other words, personnel files are important more for the information they contain than for the form they take, whether written or electronic. Personnel records may include application materials, college transcripts, resumes or curriculum vitae, evaluation and merit materials, tenure and promotion files, and disciplinary information about individual employees. Traditionally, personnel files have been considered to be property of employers, information maintained in them was private, and even the subjects of the files were not given access. Presumably, only those with a “need to know,” usually supervisors of employees, were permitted access. The law of personnel records for institutions of higher learning and their employees has become increasingly sophisticated. As such, this area of law largely depends on a combination of common law and statutory law that differs across jurisdictions. In light of the important legal issues associated with such files, this entry reviews key legal issues associated with personnel files.
The information in college and university personnel records represent competing values. On one hand, individual employees who are subjects of personnel files have an expectation of privacy with regard to certain information in their files, an expectation that is buttressed by potential judicial claims. On the other hand, because employees of public colleges and universities are governmental employees, the people of the jurisdictions within which they work have expectations of transparency in government’s businesses, including education.
Privacy Interests in Personnel Records
Judge Thomas Cooley famously described the right to privacy as “the right to be let alone” (Cooley, 1888, p. 29). The expectations that individuals have to privacy in many matters is supported by federal and state constitutional law, federal and state statutory law, and common law.
Under the U.S. Constitution, there are two types of privacy. The first type, usually called “information privacy,” deals with the federal government’s release of private information about individuals. The second type, often referred to as “constitutional autonomy,” deals with situations in which the federal government interferes with highly private individual decisions. In addition, many jurisdictions have explicit privacy protections in their state constitutions. For example, Montana’s state constitution provides a guarantee as follows: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”
Federal statutory law also recognizes certain privacy interests in personnel records. The Privacy Act of 1974, now incorporated into the federal Freedom of Information Act, controls the extent and uses of information about individuals that is maintained by federal agencies. The Americans with Disabilities Act (ADA) requires employers covered by its provisions to secure information obtained by post–job offer medical examinations in places separate from general personnel files while maintaining their confidentiality. Insofar as colleges and universities are providers of health care or purchase group health insurance, they are subject to the privacy provisions in the Health Insurance Portability and Accountability Act. At least one employee claimed that the college transcripts in her personnel file were covered by the Family Education Rights and Privacy Act (FERPA). However, the Fifth Circuit affirmed that once transcripts had become part of an individual’s personnel file, they were no longer educational records as defined by FERPA and therefore were subject to disclosure under state law (Klein Independent School District v. Mattox, 1988).
Individual state statutory provisions related to privacy can implicate college or university personnel files in odd ways. By way of illustration, the Texas Education Code prohibits institutions of higher education from releasing oral interviews for historical purposes if the materials were obtained through confidentiality agreements between interviewees and representatives of state institutions, such as faculty members and students who are engaged in gathering data for their dissertations. For example, a history department’s oral history project that focused on the memories of university employees might trigger privacy interests in audio or video files that find their way into personnel files.
The common law recognizes four separate tort claims concerned with individual rights to privacy. The four potential claims are intrusion on seclusion, public disclosure of a private fact, being placed in a false light in the public eye, and appropriation of another’s name or image. All states have adopted one or more of these common law claims, while damages and injunctive relief are available for impairing the privacy interests of individuals at common law.
The Public’s Right to Know
The public’s interest in transparency in government is supported by various sunshine laws related to records. In 1974, the Congress enacted the Freedom of Information Act, which applies to federal agencies. This act creates a presumption that all records produced by the federal government must be disclosed to the general public, unless they are subject to a specific exemption in its provisions. It is worth noting that personnel files are the sixth specific exemption provided in this act. Consequently, personnel files in federal institutions of higher education such as the military academies are categorically exempt from disclosure.
By 1981, all states except Mississippi had adopted state-level freedom of information acts (Braverman & Hepler, 1981). Mississippi added its own open records law in 1983. Many states adopted open records laws that were structurally similar to the federal act, beginning with a presumption in favor of disclosing all state governmental records but providing a specific exemption related to personnel files, sometimes with variations. Administrators in college and universities in states with freedom of information acts that provide a full exemption for personnel files, without modifying language, can likely presume that personnel files in their institutions are categorically exempt from disclosure. However, modifications in the language of the exemptions may modify the duty to disclose. For example, Colorado’s exemption is for personnel files except applications and performance ratings.
A number of states have no exemption language in their freedom of information acts. For instance, in a situation not unlike the federal case involving FERPA, the Supreme Court of North Dakota affirmed that absent a specific exemption for the personnel files of educators, the contents of such files were subject to disclosure (Hovet v. Hebron Public School District, 1988). Consequently, whether personnel files must be disclosed is subject to case-by-case analyses balancing the public’s right to know against individual employees’ privacy interests to be let alone.
In Pari Materia Analysis
Freedom of information acts and privacy acts are statutes treated as in pari materia, literally, “relating to the same person or thing or having a common purpose.” This rule of statutory construction requires courts to read, construe, and apply both statutes together so that they can gather legislative intent from the whole of both laws. The application of this rule can be seen in University of Pennsylvania v. EEOC (1990), wherein the Equal Employment Opportunity Commission (EEOC) sought tenure review files of male faculty members on behalf of an unsuccessful female applicant for tenure. The U.S. Supreme Court held that in the face of the female’s claim that she was subjected to discrimination based on sex under Title IX of the Education Amendments of 1972, university officials were required to release otherwise confidential peer-review materials that were contained in the tenure dossiers to the EEOC in order to evaluate her allegations. This case is important for higher education, because it stands for the proposition that the EEOC has the power to enforce its statutory duty to investigate discrimination, here involving gender, and to issue subpoenas while not granting institutions of higher learning any special exemptions as it goes about its job.
Another example of this rule of construction arose when an appellate court in Colorado ruled that documents placed in the personnel file of a former university chancellor, including an employment termination settlement agreement, were subject to disclosure. The court reached this outcome despite the general prohibition under state law against disclosing personnel files except for applications and performance ratings. The court held that granting university officials unfettered discretion to prevent the disclosure of documents that did not implicate privacy rights and that contained information that was routinely disclosed to others was not entitled to blanket nondisclosure under state law, because granting such a wide exception would have been contrary to public policy (Denver Publishing Co. v. University of Colorado, 1990).
In sum, insofar as personnel files occupy a central role for campus employees, including administrators, faculty members, and staff, all of those interested in higher education should be mindful of their rights under federal and state laws.
See also Family Educational Rights and Privacy Act; Privacy Rights of Faculty Members; University of Pennsylvania v. Equal Employment Opportunity Commission
Braverman, B. A., & Hepler, W. R. (1981). A practical review of state open records laws. George Washington Law Review, 49, 720–760.
Cooley, T. M. (1888). A treatise on torts. Chicago: Callaghan & Co.
Dagley, D. L. (1994). Privacy interests of school personnel in district personnel files. Illinois School Law Quarterly, 14, 81–105.
Russo, C. J., Ponterotto, J. G., & Jackson, B. L. (1990). Confidential peer review: A Supreme Court update and implications for university personnel. Initiatives, 53(2), 11–17.
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
Colo. Rev. Stat. § 24-72-204(3)(a)(II) (Bradford, 1988).
Denver Publishing Co. v. University of Colorado, 812 P.2d 682 (Colo. Ct. App. 1990).
Family Education Rights and Privacy Act, 20 U.S.C. § 1232g.
Freedom of Information Act, 5 U.S.C. § 552A.
Health Insurance Portability and Accountability Act (HIPAA), 29 §§ U.S.C. 1181 et seq.; 42 U.S.C. § 200gg; 42 U.S.C. §§ 1320d, 1320d 1-8; 26 U.S.C. §§ 9801 et seq.
Hovet v. Hebron Public School District, 419 N.W.2d 189 (N.D. 1988).
Klein Independent School District v. Mattox, 830 F.2d 576 (5th Cir. 1987), cert. denied, 485 U.S. 1008 (1988).
Miss. Public Record Act of 1983, Miss. Code Ann. § 25-61-1 to § 25-61-17.
Montana Constitution of 1972, art. II, § 10 (1972).
Privacy Act of 1974, 5 U.S.C. § 552A.
Texas Education Code, § 51.910.
Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681.
University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).