If a city or town receives a SC Freedom of Information Act request for personnel files or salary information, how should it respond?
FOIA provides any person the right to inspect or copy any public record of a public body, unless an exception applies. It defines public records broadly, so that virtually all personnel records and salary information are included, but exceptions exist.
SC Code Section 30-4-40(a)
states that a “public body may but is not required to exempt” certain information from disclosure. For personnel files, the exception is personal information where disclosure would be an “unreasonable invasion of personal privacy.” The courts have narrowly construed this exception while weighing the public’s interest against personal privacy.
In Burton v. York County Sheriff’s Department, a newspaper made a FOIA request for employment records of deputies who had been suspended without pay. Balancing the employees’ privacy interest against the public’s interest in knowing about the alleged misconduct, the court found that the way that the Sheriff’s Department employees handles their duties “to be a large and vital public interest that outweighs their desire to remain out of the public eye.”
In a 2019, SC Lottery Commission v. Glassmeyer, the Court of Appeals reached a different result. In it, a private citizen asked for personal information about winners of lottery prizes of more than $1 million, including the winners’ names, addresses, phone numbers, and prize amount. The court determined that, given the public’s limited interest in this information, the privacy interests prevailed. The South Carolina Supreme Court recently reversed this decision and remanded for further proceedings, and so the case is not concluded.
When considering a request for personnel files, a municipality should balance privacy interests against the public’s interest in the files. In some instances, such as senior management or law enforcement officials, the public interest will likely prevail. In other cases, a public body may determine that information is sufficiently personal and private that, in the absence of a compelling public interest, it need not be produced. Other considerations include these:
- Health and medical information is protected under federal and state law and should be separated from the overall personnel file and protected. Most other items in a personnel file are presumptively subject to disclosure under FOIA.
- SC Code Section 30-4-40(b) provides that even if part of the personnel file is exempt, the municipality should redact or omit the exempt information and provide the rest.
SC Code Section 30-4-40(a)(6)
requires a public body to provide “the exact compensation of each person or employee” earning $50,000 or more, all part-time employees, all persons paid for special appearances or performances, and all employees at the level of agency or department head. This provision has been interpreted to require disclosure of the exact compensation of elected officials.
For employees earning between $30,000 and $50,000, the municipality must disclose compensation levels within a range of $4,000. For employees earning less than $30,000, the disclosure requirements depend on whether the employee is classified or unclassified under a system that establishes pay grades by job category.
- Classified employees: the public body must disclose the salary schedule showing the compensation range for that classification, including longevity steps.
- Unclassified employees: the public body must disclose the compensation levels within a range of $4,000.
Although FOIA is not specific on the items that are included in “compensation,” the Attorney General’s office has indicated that compensation includes all benefits, bonuses and allowances.
Ballard v. Newberry County
The South Carolina Public Records Act makes it a misdemeanor to destroy any public record, using the same definition of “public record” as is found in FOIA. This definition is broad and covers things like emails, voicemails, and even text messages. Is deleting an old email or text a violation of the Public Records Act? In Ballard v. Newberry County, a FOIA request revealed that the county had inadvertently deleted some government emails and text messages. The plaintiff, a private resident, sued, saying she had a claim against the county for destruction of the records.
The court did not rule on whether the deletions violated the Public Records Act, but said that there was no private cause of action under that act. A private plaintiff cannot assert a claim under the Public Records Act, only the state can. In addition, the court ruled that FOIA, which does create a private cause of action, does not independently require preservation of public records, but provides a privately enforceable right to copy or inspect public records that do exist. At least in the Ballard case, the county had no liability for destroying the messages.
This case does not mean that local governments may delete emails and text messages without consequence, since the state could assert a claim in a criminal action. Municipalities should be sure to have procedures to preserve electronic records, even emails and text messages.