Most employees are evaluated by their employers. This evaluation often takes place on paper, with the supervisor providing feedback on the employee’s performance for the year. Feedback should be both positive, telling the employee the good things he or she does, and also should include constructive criticism, suggesting areas of deficiency where improvement is needed. The evaluation form is filed away in the employee personnel file to document performance.
What if your performance evaluation was published on the front page of the local newspaper? Probably not a concern if you had a good year, but there often are deficiencies you’d like to keep between you, your employer, and your personnel file.
Recently, the Peoria Journal Star attempted to obtain the personnel evaluations of Kay Royster, former superintendent of Peoria School District 150. Under the Illinois Freedom of Information Act (FOIA), newspapers can obtain documents from public entities. A school district is a public entity, and the Journal Star wanted to see Royster’s performance evaluations and a letter to Royster from the Board of Education as to why the board decided to place her on administrative leave.
The school board declined the paper’s request to turn over the documents, arguing that FOIA exempts “personnel files and personal information maintained with respect to employees” from disclosure. The paper filed suit to force their disclosure, arguing the school board placed these documents into Royster’s personnel file in an attempt to shield them from disclosure and the documents weren’t the type intended for protection from the FOIA. The Peoria County judge hearing the case heard arguments of the attorneys and reviewed the documents himself. The judge ruled the documents should be released, stating that “these records were not the same as most employee evaluations and not covered by the exception.”
The school board appealed to the Third District Appellate Court in Ottawa. The appellate court panel reversed the trial judge. The appellate court ruled that the documents were “per se” exempt, meaning that because the documents clearly fit within the one of 33 exemptions of the statute, they were absolutely exempt from disclosure. That one exemption protects “personnel files and personal information maintained with respect to employees, appointees or elected officials of any public body or applicants for those positions.” Because the documents were per se exempt, the analysis ended there; the court didn’t need to determine whether the disclosure of the documents would constitute an invasion of Royster’s personal privacy.
The court did analyze whether the documents were properly part of the personnel file or whether the board was attempting to shield them from disclosure by merely placing them inside that file folder. The court held that a “personnel file” can reasonably be expected to include a resume, policies signed by an employee, payroll information, performance evaluations, and disciplinary records. The court found that “[t]he performance evaluations clearly belong in the personnel file. The letter is a response to Royster’s request for written justification for the Board’s decision, and is both a summary of the performance evaluations and a record of disciplinary action.” Therefore, these documents were protected from disclosure.
The court further supported its decision by noting that while public entities are required to do the majority of its work in public, certain matters, such as employment, compensation, discipline, and performance may be done in private under the Illinois Open Meetings Act. This act allows some public business to be conducted in closed session so private matters can be discussed and public entities aren’t placed at a disadvantage by disclosing their positions in contract negotiations and strategic planning. If the work done in those closed sessions was then documented on paper, and if the FOIA allowed disclosure of that documentation, the Open Meetings Act would be circumvented by the process of recording the spoken word into a document. Therefore, this decision also protected the goals of the Open Meetings Act.
The newspaper appealed the decision to the Illinois Supreme Court, but the high court declined to hear the case, thus ending the litigation. The result was a victory for the school board and for the privacy of all employees working for public entities. While the public still has access to information about what public entities do, that right isn’t absolute. IBI
