Privacy of State Employees’ Personnel Records; Release of Information to the News Media

December 22, 1977

Subject:

Requested By:

J. Phil Carlton Secretary Department of Crime Control and Public Safety

Questions:

(1): May the news media be told that a State employee is being investigated?
(2): May the news media be told why a State employee is being investigated?
(3): May the news media be told that a State employee has been suspended pending an internal investigation or pending an investigation by an outside criminal justice agency?

Conclusion:

(1): No.
(2): No.
(3): No. The news media may be told only the date of an employee’s most recent suspension.

Chapter 866 of the 1977 Session Laws amended the State Personnel Act, Chapter 126 of the General Statutes. G.S. 126-122, as amended, provides that personnel files of State employees, former State employees, or applicants for State employment shall not be subject to inspection and examination as authorized by G.S. 132-6. A personnel file consists of ". . . any information gathered by the Department . . . which . . . relates to the individual’s application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and determination of employment wherever located and in whatever form" G.S. 126-22. The General Assembly also provided criminal penalties for any public official or employee who "knowingly and willfully" permits an unauthorized person to have access to confidential information contained in a personnel file, G.S. 126-27, and penalties for any unauthorized person who "knowingly and willfully" examines a confidential file, G.S. 126-28.

Inspection and examination of this confidential information is allowed for certain persons. The employee, applicant for employment, former employee or his properly authorized agent may examine the confidential information, except for letters of reference or medical information that a prudent physician would not divulge to a patient. The supervisor of the employee, members of the General Assembly, a party authorized by a court order, an official of an agency of the Federal government, State government or any local subdivision thereof, when the head of the department deems such inspection is necessary and essential to the proper function of said agency, may have access to the confidential personnel file. G.S. 126-24. Also, a party to a quasi judicial hearing of a State agency or a State agency which is conducting a quasi judicial hearing, may have access to "relevant material" in personnel files and may introduce copies of such material or information based on such material as evidence in a hearing either upon consent of the employee or upon subpoena properly issued by the agency. G.S. 126-29.

In addition, a public record must be maintained on each employee by each department. This public record must show the name, age, date of original employment or appointment to State service, current position title, current salary, date and amount of most recent increase or decrease in salary, date of most recent promotion, demotion, transfer, suspension, separation, or other change in position or classification, and the office or station for which the employee is currently assigned. Any person may inspect, examine, or copy this record. G.S. 126-23.

The first question presented is whether the news media may be informed that a State employee is being investigated. It is clear that the news media does not fall within the category of persons or agencies which is allowed to inspect and examine confidential information. G.S. 126-24. Therefore, if the statement that a particular State employee is being investigated is confidential information, then the news media could not be informed of this. When this Statute is given the most liberal and wide ranging application, which is the only prudent course because of the criminal penalties involved for violation, the fact that a particular employee is being investigated would seem to be information which relates to the "individual’s application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment wherever located and in whatever form." G.S. 126-22. The legislative will is the controlling factor in interpretation of statutes. Underwood v. Howland, 274 NC 473, 478 (1968). The General Assembly made a choice between the right of the public to know how public employees are conducting public business and the privacy of public employees. The General Assembly chose the latter. At every turn, the statute protects the employee.

It is beyond dispute that a department of State government has the duty to investigate complaints concerning one of its employees. Needless to say, most departments have internal procedures for investigating complaints made against particular employees. These procedures would be a public record and therefore the news media could be informed that the department does have internal procedures for investigating complaints made against employees. However, the department should, and properly so, refuse to answer questions about a specific employee. A proper answer to inquiries by the news media concerning complaints made against an employee should be:

"The Department of Crime Control and Public Safety has internal administrative procedures for investigating complaints against its employees. All complaints received against all employees are investigated and appropriate action taken. We are prohibited by Statute from answering any questions concerning a particular employee."

Based upon the conclusion to question No. 1, it necessarily follows that the news media may not be told why an employee is being investigated. The reasons for an investigation would clearly fall within the information that relates to an individual’s demotions, suspension, performance evaluation forms, disciplinary actions and termination of employment. G.S. 126-22.

The news media may only be told the "date of" an employee’s "most recent" suspension or other change in position or classification. G.S. 126-23. Such a statement would not extend to the type of suspension that was imposed. The State Personnel rules provide for suspension or compulsory leave without pay to be used in certain limited situations. "Suspension may be used to provide time to investigate, establish facts and reach a decision concerning an employee’s actions in those cases where it is determined that the employee should not work pending a decision." 1 N.C.A.C. 8J.0610(2); see also 1 N.C.A.C. 8I.1304(2). Such a suspension must be fully documented. However, even though suspension is usually imposed pending an investigation, the State Personnel rules provide that such suspension may become part of a disciplinary action. 1

N.C.A.C. 8J.0610(10). In addition, the rules for the North Carolina Highway Patrol provide that law enforcement personnel may be suspended without pay, or placed upon compulsory leave without pay for disciplinary reasons. See 14 N.C.A.C. 9D.0103. Since there are several types of suspension, the kind of suspension imposed falls outside that information which is to be maintained in the public record.

Also, the fact that an employee was suspended pending an internal investigation or an investigation by an outside criminal justice agency is information which relates to the suspension. This information is part of an employee’s personnel file. G.S. 126-22. State Personnel rules require the agency to maintain such information concerning a suspension. 1 N.C.A.C. 8J.0610(6); 1 N.C.A.C. 8I.1304(4). To state that an employee was suspended pending an investigation would seem to intrude into the confidential part of an employee’s personnel file. Only the date of the suspension and not the type should be given.

Rufus L. Edmisten Attorney General

Isaac T. Avery, III Assistant Attorney General