September 9, 1993
C. Robin Britt, Sr., Secretary Department of Human Resources Post Office Box 29526 Raleigh, North Carolina 27626-0526
RE: Advisory Opinion; Public Records; Personnel Files; Nursing Home Reform Act; Long Term Survey Team Tests; Request for Release of Individual Test Results; G.S. 132-1; G.S. 132-6; G.S. 126-22
Dear Secretary Britt:
You have asked for our opinion regarding a request for disclosure of documents pursuant to G.S. 132-1 and 6. Specifically, the North Carolina Health Care Facilities Association has requested access to the Surveyor Minimum Qualification Testing results which the Department of Human Resources recently received from the Health Care Financing Administration (HCFA) of the Department of Health and Human Services (HHS). HCFA administered the test to all State survey agency directors pursuant to the Nursing Home Reform Act, which requires that individual members of long term care survey teams meet minimum qualifications established by the Secretary of HHS and successfully complete a training and testing program in survey and certification techniques. Since HCFA administered and scored the tests, the only document DHR has which comes within the Association’s request is the list it received from HCFA indicating which DHR employees passed or failed the test.
As we understand the relevant facts, future applicants for membership on a survey team will be required to show that they have passed the HCFA test as a prerequisite to team membership. However, the current team members were serving on teams before the HCFA test was required. The law does not exempt them from passing the test but does allow them a yet undetermined period of time to do so. Meanwhile they can continue serving on the teams.
G.S. 132-1 defines public records to include all documents made or received pursuant to law in connection with the transaction of public business by a State agency. G.S. 132-6 provides that public records are subject to inspection and examination. G.S. 126-22 excludes personnel files from the inspection and examination requirements of G.S. 132-6. Personnel files include "any information gathered by the . . . agency . . . which employs an individual . . . and which information 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 State Personnel Manual provides that when duties assigned to a position may be performed only by persons who are licensed, registered or certified, employees in those positions are responsible for maintaining the required credentials and may be dismissed for failure to do so. State Personnel Manual, Section 9, page 8.0. Since federal law requires that survey team members must pass a test administered by HCFA in order to continue doing their jobs, the list indicating which DHR survey team members have passed or failed the test is a document received by the agency in connection with the transaction of the public business. However, since an employee may ultimately be removed from the survey team if he does not pass the test, the list also relates to one or more of the items enumerated in G.S. 126-22. We conclude, therefore, that the list is confidential personnel information which may not be released pursuant to G.S. 132-6.
In its letter, the Association indicates that its interest in making this request stems from its desire to understand the tool which HCFA used to test surveyors and to know how surveyors fared in the process. Even though we have concluded that the actual list DHR received from HCFA is confidential personnel information which may not be released, it nevertheless may be possible for you to accommodate the Association’s interest by helping them to obtain a copy of the test from HCFA and by compiling and releasing to them the percentages of surveyors who passed the two separate parts of the HCFA test.
If we can assist you further or if you have any additional questions, please do not hesitate to contact me.
Ann Reed Senior Deputy Attorney General