Freedom of Information Act

Public agencies responding to requests made under the Freedom of Information Act will face a new notification requirement starting October 1, 2018, when requests are made for records contained in an employee’s personnel, medical or similar files.  Importantly, these procedures apply only when requests are made for records contained in such files.  Similar information contained in other records (such as interoffice emails) do not trigger the same protection.

Under the current law, when a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files, and the agency reasonably believes that the disclosure of such records would legally constitute an invasion of privacy, the agency must follow a notification procedure designed to allow the employee to object to the disclosure.  Specifically, the agency was required to disclose whatever responsive records would not be an invasion of privacy, but also notify each employee concerned in writing (except if written notification would be impractical due to a large number of employees concerned) and also notify each employee’s collective bargaining (union) representative, if any.  If the employee objected to the disclosure of information after such a notification, the public agency would not disclose it unless and until the Freedom of Information Commission ordered disclosure.   The employee should be given the opportunity to object to the disclosure only of those records whose disclosure could legally constitute an invasion of privacy.

The law remains unchanged with respect to the procedure for information that the public agency reasonably believes would legally constitute an invasion of privacy.  It adds a requirement that whenever a public agency receives a request to inspect or copy records contained in any of its employees’ personnel or medical files and similar files, and the agency reasonably believes that the disclosure of such records would not legally constitute an invasion of privacy, the agency shall first disclose the requested records to the person making the request to inspect or copy such records and subsequently, within a reasonable time after such disclosure, make a reasonable attempt to send a written or an electronic copy of the request to inspect or copy such records or a brief description of the request, to each employee concerned and his or her collective bargaining representative, if any.

It is important to note that the public agency must promptly disclose the requested information when it reasonably believes disclosure would not legally constitute an invasion of privacy.  The disclosure in such cases must occur prior to the notification of employees and union representatives.

To determine whether a disclosure could legally constitute an invasion of privacy, public agencies must apply the Perkins test, developed from case law under the Freedom of Information Act.  Under the Perkins test, a disclosure could legally constitute an invasion of privacy if the information sought does not pertain to legitimate matters of public concern and the disclosure of such information is highly offensive to a reasonable person.   By way of example, details of an employee’s medical condition and treatment are generally viewed as meeting the Perkins test, while numerical attendance records are not.

In another update to the Freedom of Information Act, the Freedom of Information Commission will have some discretion to afford relief to public agencies contending with vexatious requesters, including the ability to relieve the public agency of responding to that requester’s Freedom of Information Act requests for up to one year.  This is welcome news for public agencies struggling under the burdens of complying with requests made to encumber or antagonize the public agency.

Our team of labor and employment attorneys regularly assists municipal and board of education clients in complying with Freedom of Information Act requests and regularly defends clients before the Freedom of Information Commission.  Contact us for assistance in handling FOIA requests or FOIC hearings.