March 18, 1997
Ms. Janice Faulkner Commissioner of Motor Vehicles 1100 New Bern Avenue Raleigh, North Carolina 27697-0001
RE: Advisory Opinion; Public Records; Employee Personnel Information; N.C.G.S. §§ 126-22 and 126-23
Dear Commissioner Faulkner:
You ask our advice concerning a public records request for a list of employees or former employees of the Department of Motor Vehicles who are receiving disability income. You advise that such a list is available. The only information it provides is the name of the individual and the amount of money he or she is receiving as disability income. It gives no particulars as to the type of disability or the reasons why the individual was placed on disability. For reasons which follow, such a list is a public record which should be released.
N.C.G.S. §126-22 provides that the "(p)ersonnel files of State employees, former State employees, or applicants for State employment shall not be subject to the inspection and examination (as public records) as authorized by G.S. 132-6." This section then defines what personnel file information consists of.
For purposes of this Article, a personnel file consists of any information gathered by the department, division, bureau, commission, council, or other agency subject to Article 7 of this Chapter which employs an individual, previously employed an individual, or considered an individual’s application for employment, or by the office of State Personnel, and which information relates to the individual’s application, selection or nonselection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment wherever located and in whatever form. N.C.G.S. §126
22.
The General Assembly, recognizing that some information about state employees and former state employees should be made available as public record information, mandated that certain information contained in a personnel file shall be open to inspection as a public record. N.C.G.S. §126-23 provides, in pertinent part, as follows:
Each department, agency, institution, commission and bureau of the State shall maintain a record of each of its employees, showing the following information with respect to each such employee: name, age, date of original employment or appointment to the 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 classification, and the office or station to which the employee is currently assigned.
In 1988 the North Carolina General Assembly established the Disability Income Plan of North Carolina. See, Article 6 of Chapter 135 of the North Carolina General Statutes. This Plan is
administered by the North Carolina Department of State Treasurer and the Board of Trustees of
the Teachers’ and State Employees’ Retirement System within the terms and conditions of the
Plan as set forth in Article 6. The Plan was established to provide an equitable replacement
income for eligible state teachers and state employees who become temporarily or permanently
disabled for the performance of their duty prior to retirement and to encourage disabled state
teachers and state employees who are able to work to seek gainful employment after a reasonable
period of rehabilitation. The Plan further provides for the accrual of retirement and other benefits
to the date the eligible state teacher or state employee meets the requirements for an unreduced
retirement under the Teachers’ and State Employees’ Retirement System.
The General Assembly has provided in N.C.G.S. §126-23 that the salary of a state employee or
former employee is a matter of public record. The word "salary" has broadly been defined by our
State Supreme Court to include retirement benefits. See, Bridges v. City of Charlotte, 221 N.C.
472, 482 (1942). It is our opinion, therefore, that the word "salary" includes disability income.
Moreover, although N.C.G.S. §126-23 does not specifically state that being in the status of
receiving disability income is a matter of public record, that statute requires the employer to
provide as public record information the "date of most recent promotion, demotion, transfer,
suspension, separation, or other change in position classification, and the office or station to
which the employee is currently assigned." We believe that an employee’s status as receiving
"disability income" fits within the meaning of "or other change in position classification," and the
"office or station to which the employee is currently assigned," as stated in N.C.G.S. §126-23.
In conclusion, assuming that the Department of Motor Vehicles has a record which lists the
names and salary of those individuals on disability retirement, that list is a public record which
must be disclosed.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General