‘Personnel information’: FOIA redactions reassessed with high court guidance

With guidance from the Supreme Court of Virginia, a circuit court in Virginia has ordered a town to disclose several documents it had earlier ruled were exempt as personnel information under the Virginia Freedom of Information Act, or VFOIA.

The circuit court dismissed the plaintiff’s mandamus petition for VFOIA disclosure after the town redacted information from documents including emails, performance reviews, resignation letters and a demand letter pertaining to employment disputes.

Having found that VFOIA didn’t define “personnel information,” the Supreme Court created one for the circuit court to use when reviewing the documents on remand.

“[W]e hold that ‘personnel information’ … means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity,” Justice Thomas P. Mann wrote for the court.

Armed with that new definition, the circuit court ruled that all documents in question should be disclosed with slight redactions, such as the names of secondary employees and medical information.

The opinions are Hawkins v. Town of South Hill (VLW 022-6-050 and VLW 023-8-029).

VFOIA requests

Between 2019 and 2020, an attorney named Richard Hawkins III submitted several VFOIA requests for documents from the Town of South Hill relating to employment disputes involving the town manager and various employees.

While the town responded to each request, Hawkins felt they were deficient. After the last response, Hawkins petitioned the Mecklenburg County Circuit Court for mandamus to compel production of the documents, impose civil penalties and award attorneys’ fees and costs.

In his petition, Hawkins alleged that the town asserted VFOIA exceptions too broadly and withheld documents that should have been released or redacted. The town demurred on grounds that it fully complied with VFOIA.

The parties narrowed the dispute to seven documents that Judge J. William Watson Jr. reviewed in chambers. Applying a definition of “personnel record” from a previous version of VFOIA, Watson concluded that five documents were exempt “personnel information.”

Watson didn’t address Hawkins’ request for fees or decide whether he substantially prevailed. Before appealing, Hawkins endorsed the order with objections to the denial of mandamus, as well as the court not awarding fees or holding that he was a prevailing party under VFOIA.

‘Personnel information’

Despite its presumption of transparency, VFOIA exempts “[p]ersonnel information concerning identifiable individuals” from disclosure. “VFOIA does not completely define the operative term ‘personnel information,’” Mann pointed out.

Looking to the plain and ordinary meaning of the terms, the justice noted that “‘[p]ersonnel’ can have at least four meanings.”

Although VFOIA defined “information” as “the content within a public record that references a specifically identified subject matter,” Mann found that the statute didn’t define “content,” which plausibly could mean multiple things.

Virginia’s legislature amended VFOIA in 2016 by changing “personnel record containing information concerning identifiable individuals” to “personnel information concerning identifiable individuals” and defined “information.”

Opining that “content” was the most difficult term to construe, the court concluded it meant “data, facts, or statements.”

Where “personnel information” was modified by the phrase “concerning identifiable individuals,” Mann wrote that the “meaning of ‘personnel’ most clearly intended by the legislature is ‘a body of persons employed in some service’ or government employees.”

After examining dictionary definitions, the statute’s legislative history and opinions from Virginia and other jurisdictions, the court settled on a definition of “personnel information.”

“[W]e hold that ‘personnel information’ for purposes of Code § 2.2-3705.1(1) means data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity,” the justice wrote.

Mann stressed that the definition of “personnel” was narrowly limited to exclude individuals whose information merely happened to appear in a public record.

“Reading the definitions narrowly, we recognize that the only content exempt from disclosure is that which is tied to the employment of the individual in some way, and which otherwise would not be disclosed to the employer,” Mann said.

He added that this definition “recognizes that the ‘personnel information’ exemption, like the ‘personnel record’ exemption before it, is a ‘privacy-based exemption, designed to protect the subject of the record from the dissemination of personal information.’”

Refusing to “legislate from the bench,” the court remanded the case for the circuit court to apply an objective test that was neither rigid nor firm to determine whether the exemption applied in the context of each disputed document.

New analyses

The first document Watson addressed on remand was a six-page email between town officials, which he described as “the voluntary republication, by the employee, of an event tied solely to the author’s employment.”

“In order to be private, the disclosure of this information would have to constitute an ‘unwarranted invasion of personal privacy to a reasonable person under the circumstances,’” the judge wrote before finding that the email should be produced entirely without redactions.

The second document was another email which purported to be a performance evaluation that was voluntarily published to the mayor and town council.

“Given this fact, it defies logic that a reasonable person would find this production to be an unwarranted invasion of personal privacy,” Watson wrote.

However, he redacted the names of secondary employees mentioned in the email to whom it didn’t pertain.

“Even though this is an evaluation of the employee in question, the Court finds that evaluations are not automatically excluded,” Watson said, noting that “even if one could argue the info was private, there is no unwarranted invasion thereof.”

Similarly, the judge found that a different email chain could be produced with some name redactions.

“While these emails may contain some unflattering comments concerning job performance and a rebuttal to those allegations, that performance is solely in relation to the function of a public duties by a public employee being compensated by public funds,” he said.

“If severely strained relationships exist between employees and supervisors which negatively impact the smooth and efficient performance of public responsibilities, the public should know,” Watson asserted.

The demand letter could also be disclosed with redactions for names, medical information and references to private activities.

“While the nonredacted content may contain details of what appears to be allegations of improper treatment in the workplace of an employee by a supervisor, it involves an employee of a municipality and her supervisor and concerns events solely related to the workplace,” the judge held.

Here, that information was known to the employer because of the employment relationship and wasn’t information that wouldn’t otherwise be disclosed to the employer.

“If there is a claim by an employee that could result in liability to the municipality in question, the public, subject to appropriate redactions, should be able to gain this information,” Watson concluded.

Finally, Watson ruled that three resignation letters should be produced with redactions for names and private actions.

“The employee resigning is setting forth the rationale for his resignation … not revealing personal information[,]” Watson wrote. “While this may contain unflattering comments about a third party, it is certainly not information, the disclosure of which a reasonable person could find to be an unwarranted invasion of personal privacy.”