There are surprisingly few cases discussing the Freedom of Information Act1 and its exceptions—particularly when it comes to personnel files. On July 31, 2007, however, a new opinion was issued by the Fourth District Appellate Court that provides some guidance in this area.
In Reppert v. Southern Illinois University,2 Jerry Reppert and the Gazette Democrat submitted a Freedom of Information Act (FOIA or the Act) request to Southern Illinois University (SIU) for two sets of documents: (1) employment contracts for SIU President Poshard, former SIU President Wendler, and SIU employees Jackson and Lawrence covering the time period January 1, 2000, to the time of the request; and (2) independent contractor contracts covering January 1, 2000, to the time of the request for SIU employees Jackson and Lawrence. The request was denied. Plaintiffs appealed the denial, which was denied by Wendler.
In August 2006, plaintiffs filed a complaint asserting three separate bases under which the requested documents should be disclosed, one of which was the FOIA.3
SIU filed a motion for summary judgment on Count II, asserting that the FOIA exempted these documents from disclosure. The crux of the motion was that the employment contracts were part of employee personnel files and as such are exempt from the FOIA disclosure requirements. The argument was based on subsection 7(1)(b)(ii) of the FOIA4 and SIU argued that the application of this exemption made the documents per se exempt from disclosure.
The circuit court granted the motion for summary judgment finding that the employee contracts were exempt from disclosure under the personnel-file exemption.5
The Freedom of Information Act
Any case that addresses the FOIA includes a discussion of the purpose of the Act—that governmental records should be open to the light of public scrutiny. This discussion was included in the Reppert case. The benefit of including this is that it provides the necessary basis for reviewing the lower court’s decision in the context intended by the General Assembly when the Act was first passed.
Accordingly, with this purpose in mind, the presumption exists that public records are to be open and accessible.6 The appellate court also noted that the Act is subject to liberal construction and the exceptions to disclosure are to be read narrowly “so as not to defeat the FOIA’s intended purpose.”7
As is usually the case, the definitions included in a public act shed some light on the analysis. In this case, the Act specifically defines “public records” to include “(vii) all information in any * * * contract dealing with the receipt or expenditure of public or other funds of public bodies; [and] (viii) the names, salaries, titles, and dates of employment of all employees and officers of public bodies * * *.”8 The court recognized that the definition of public records is written broadly (to “include, but is expressly not limited to * * * ”).9 The emphasized language has not been fully analyzed in the FOIA context. At a minimum, however, it is one way to emphasize the breadth of the definition.
Section 7 of the Act10 sets out those records that are exempt from inspection and copying. Included in this list is information that “would constitute a clearly unwarranted invasion of personal privacy * * * The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.”11 And, subsection 7(1)(b) then goes on to provide that this information includes but is not limited to “personnel files and personal information maintained with respect to employees * * * of any public body.”12 Section 8 of the Act13 also provides that if material contained within an exempt public record is not exempt, such record shall be disclosed with the exempt information deleted.
The Reppert Opinion
The appellate court found that the grant of summary judgment in favor of SIU on the FOIA count was in error. Specifically, the court recognized that the statutory definition of “public record” included information contained in the employment contracts that were sought by the Reppert request. And, maybe this was a key factor, at oral argument, counsel for SIU agreed that the information contained in the employment contracts was not confidential.
Further, the court expanded its discussion and concluded that the narrow reading of the section 7(b)(1) exemption regarding the individual contracts constituted “information that bears on the public duties of public employees and officials.”14 Continuing, the court then noted that the disclosure of the contracts is not considered an invasion of personal privacy and, as a matter of law, is not exempt under section 7.
The court specifically pointed out that although personnel files are per se exempt from disclosure, individual contracts that are kept within the personnel files are not also per se exempt. Explaining its position, the court stated that section 8 of the Act explicitly permits disclosure of non-exempt documents which are contained within exempt public records.
The Copley Press case
In supporting its conclusion, the appellate court distinguished the SIU case from Copley Press, Inc. v. Board of Education for Peoria School Dist. No. 150,15 a 2005 case out of the Third District Appellate Court. In Copley Press, a FOIA request was submitted to a school district’s board of education seeking two performance evaluations and a letter explaining the reasons for the dismissal of the school district’s superintendent. The board of education denied the request based on the personnel file exemption of section 7(1)(b)(ii). The Copley Press court analyzed the disclosure of documents in a personnel file and found that “since the requested documents fit within the personnel file exemption under section 7(b)(ii), they are per se exempt, whether or not they constitute an invasion of [the superintendent’s] personal privacy” and are thus exempt from disclosure.16
The Copley Press court also reviewed whether the documents were properly placed in the personnel file. Because “personnel file” is not defined in the Act, the court applied a legislative intent analysis focusing on the plain language of the statute. The Copley Press court further recognized that a “personnel file” can reasonably be expected to include certain documents and went on to specifically list them: resume or application, employment contract, emergency contact information, training records, performance evaluations, and disciplinary records.17 The court then concluded that the performance evaluations sought in the FOIA request clearly belong in the personnel file.18
The Copley Press court did recognize that the mere act of putting a document into a personnel file did not make the document part of the personnel file.19 But, the court went on to state that the documents sought are of the type that would be placed in a personnel file and are thus per se exempt from disclosure.
The Copley Press court also discussed the application of the FOIA in conjunction with the Open Meetings Act. The basis for this discussion was that because the FOIA and Open Meetings Act both ensure public access to information concerning the conduct of public bodies, except in limited circumstances, the two acts must be construed together.20 The Open Meetings Act allows a public body to hold closed meetings to consider, among other issues, the discipline, performance, or dismissal of specific employees.21 The court concluded that since the Open Meetings Act allows a public body to go into executive or closed session to discuss the superintendent’s employment, to allow the disclosure of information under the FOIA would in effect nullify the exception in the Open Meetings Act.22
Conclusion—What does this mean?
Reading the Reppert and Copley Press cases together gives lawyers a better understanding regarding the extent of the personnel record exemption. Notably, the Copley Press case did not state that employment contracts were documents that clearly belong in a personnel file; this conclusion was specifically limited to performance evaluations.23 The discussion of an employment contract was included in a general review of what may reasonably be found in a personnel file.24 As such, the Reppert court treated the discussion as dicta.25
Lawyers should also keep in mind the Copley Press court’s consideration of the Open Meetings Act’s provisions in undertaking a FOIA analysis. This type of review did not occur in the Reppert case. Thus, to the extent that the information contained in the documents sought pursuant to the FOIA would qualify for a valid exemption under the Open Meetings Act, an argument can be made that to allow disclosure under the FOIA would circumvent the application of the Open Meetings Act. Typically, when it comes to contracts, those documents are subject to open disclosure in both the Open Meetings Act and the FOIA context.
The lesson learned here is that simply because a document is included in a personnel file does not mean that it per se exempt from disclosure under the FOIA.