From time to time, we receive questions about the confidentiality (or lack thereof) of records concerning persons who definitely work for a county or municipality but don’t follow the traditional definition of personnel. These can be delicate situations because, on the one hand, no one wants to disclose private personnel information, but, on the other hand, no one wants to keep from disclosing a public record. To complicate matters further, the General Statutes don’t explicitly say whether these individuals count as “personnel” or not, and case law in North Carolina doesn’t always provide definitive answers. The analysis below follows the interpretation and advice of Dr. David M. Lawrence in his book Public Records Law for North Carolina Local Governments (2nd. ed., 2009). Let’s take a look at three general groups of people who occupy this gray area, keeping in mind that if you’re going to withhold a record from public access, you need a specific statute that allows you to.
- Elected officials
Many elected officials in local governments across North Carolina are full-time employees: for example, registers of deeds and county sheriffs. These should obviously be considered personnel. What, however, of elected officials who only work for the government part-time? Should city council members, county commissioners, and school board members be subject to personnel privacy statutes the same way that regular employees are?
This is made trickier because part-time elected officials are treated like personnel in some instances (for example, income taxes), and unlike them in others (for example, the local government retirement system). Additionally, elected officials don’t always have the same expectations of privacy as full personnel because of the public nature of their office. How do we balance the public’s need for information with part-time elected officials’ privacy?
Lawrence suggests that, until the matter is clarified in the courts, records that treat part-time elected officials as personnel (for example, insurance applications and tax forms) be confidential, and the rest remain open. For more information on the records of elected personnel, please see Tom Vincent’s December 17, 2012 post.
Local governments often benefit from having a number of volunteers carry out public business, whether as firefighters, interns, coaches, or committee members. As a result, local governments often have files about volunteers that treat them as personnel. Do volunteers, therefore, count as “personnel” as far as the personnel privacy statutes go?
Most of the case law in the U.S. concerning volunteers (though not all) has decided that volunteers are not to be considered personnel. Concerning the privacy statutes specifically, volunteers are not specifically listed in the privacy statutes (employees, former employees, and applicants for employment are), and North Carolina courts tend to read exceptions to the right of public access as narrowly as possible. What’s more, two statutes (G.S. 115C-209.1 and G.S. 126-5(c1)(4)) specifically exempt certain voluntary positions’ (school volunteers and state commission members) personnel files from access, implying that the normal status of volunteer records is, “open to the public.”
As a result, Lawrence believes that records concerning volunteers are completely open to the public.
- Independent Contractors
There is one more category of individuals who may work for a local government but may not be “personnel.” Independent contractors may include local government attorneys, local physicians in staff positions at public health authorities, and the like. As long as the local government is not the sole client of these private practices, the contractor cannot be considered an employee in the traditional sense. So, are personnel records concerning them open to the public?
In this instance, we have clear case law in North Carolina that says, “yes.” In 2007 a North Carolina Court of Appeals case ruled that independent contractors are not employees under personnel privacy statutes. If the contractor in question is a health care provider for a public health authority or a public hospital, however, check the statutes and see whether the records in question are open. According to G.S. 130A-45.9 and G.S. 131E-97.1, qualification records and grievance files for these employees are confidential.
As with most matters of confidential records, the personnel privacy statutes can be come complicated very quickly. If you have any questions, please contact one of the Local Records Analysts here, or any of UNC’s School of Government Local Government Law experts.