A Look in Through the Out Door: FOIA and Employee Exit Interviews
The following article was first published on Pullman & Comely’s School Law Blog. It was adapted from an article the same author provided for the CABE Journal September 2022 edition. It is reposted here with permission.
It is a common practice for employers to conduct exit interviews with departing employees.
Without even discussing employment law issues (not to mention issues over the appropriate roles and responsibilities for school administrators and board members) that might arise out of the use of such interviews, Connecticut’s Freedom of Information Act presents another complicating factor.
A recent case before Connecticut’s Freedom of Information Commission exemplifies these concerns.
In Hanna v. Chief, Police Department, Town of Old Saybrook, #FIC 2021-0586 (July 13, 2022), a former employee of a police department requested from the department his complete personnel file, including a copy of his “exit interview.”
As per the department’s practices, the former employee was asked to complete a written exit interview.
Also consistent with its practices, the exit interview was then reviewed by another police department employee and discussed with the former employee.
Department exit interviews are also reviewed by the police chief (who is responsible for evaluating the performance of department employees/supervisors) and by the Board of Police Commissioners (which is responsible for evaluating the performance of the chief).
The stated purpose of the exit interviews is for the department to learn from the departing employee’s experiences, improve the department’s work environment going forward, and to evaluate supervisors and the department as a whole.
The department declined to produce a copy of the exit interview report, asserting that the report was exempt from disclosure.
The department claimed that the disclosure of the exit interview would constitute an invasion of the police chief’s personal privacy. It appears that the former employee used his exit interview to express negative opinions about the chief; the department claimed that the former employee made “defamatory statements” about the chief, in “an effort to discredit” the chief.
The former employee then filed a complaint with FOIC over this denial.
Simply put, FOIC rejected the department’s defenses.
FOIC noted that the exit interview report is a “personnel” or “similar” file.
Generally, a public agency has a heavy burden if it attempts to shield such records from disclosure due to a claimed invasion of privacy.
The agency must establish that such records: (1) do not pertain to legitimate matters of public interest, and (2) the records/information contained therein would be highly offensive to a reasonable person.
Here, FOIC noted that the former employee’s personal impressions of the chief related to his duties and responsibilities as a chief of a police department, and as such, inherently pertained to a matter of public concern.
The commission discounted the department’s claims that the disclosure would be “defamatory and otherwise harmful to the reputation” of the chief, noting that whether something is harmful to one’s reputation is not a basis to shield documents from disclosure under FOIA.
FOIC ordered the department to disclose the interview report.
What Does This Mean?
It is not a shock that FOIC would require disclosure of this type of record.
The commission has noted there is a diminished expectation of privacy for public employees, which is why most of what is in personnel/similar files are generally public records subject to disclosure under FOIA.
Just as FOIC has found that a complaint making unsubstantiated allegations against a public employee is generally subject to disclosure (as the public has a right to know about the conduct of public employees-along with any investigation of alleged misconduct), the fact that a report might damage one’s reputation or make false allegations is not enough to shield it from disclosure under FOIA.
Can Public Agencies Shield Exit Interviews?
FOIA contains an exemption from disclosure for “educational records” that are covered by the Family Educational Rights and Privacy Act.
Generally, FERPA prohibits schools from disclosing educational records (or personally identifiable information concerning students contained in those records) without parental consent.
If an exit interview contains information on employee misconduct where the alleged victim is a student, a school could redact personally identifiable information concerning the student.
However, recent cases indicate that FOIC is taking a narrower view of what constitutes an “educational record,” and the exit interview report itself may still be subject to disclosure (albeit with redactions of student names and/or other personally identifiable information).
In addition, FOIA protects from disclosure “preliminary drafts or notes” where the public agency determines that “the public interest in withholding such documents clearly outweighs the public interest in disclosure.”
There is a bevy of cases where FOIC has permitted the withholding of personal notes or draft documents.
While this exception might exempt draft reports (and the personal notes of someone conducting an interview on behalf of a public agency), this exception will not cover written employee statements or other “completed” documents.
Finally, while there is a broad exception to disclosure for public school teacher evaluations, both case law and amendments to FOIA indicate this exception is limited to the actual evaluations (not generalized records/allegations of misconduct), and to the extent that such exit interviews contain claims of teacher misconduct, they would still be subject to disclosure.
About the author: Mark Sommaruga is an attorney with Pullman & Comley. He has extensive experience in counseling and representing public and private sector clients in labor, employment, education, and municipal law issues, including Freedom of Information Act matters.
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