New Privacy in Public Employment
June 4, 2020
Category: Public Records Act , New Legislation and Regulations
New protections for public employee personal information go into effect soon.
SSHB 1888, which amends section RCW 42.56.250 of the Public Records Act (PRA), will go into effect on June 11, 2020. The amendment creates new exemptions for certain information in personnel and public employment records and imposes an obligation on agencies to provide notice to employees of any request for certain personnel information. Public records officers should familiarize themselves with the new exemptions and agencies will need to update their policies and procedures to reflect these new notice requirements.
An employee’s payroll deductions, photographs in a personnel file, birth month and year, and demographic details are among the new exemptions, but some are dependent on agency type.
Section RCW 42.56.250(4) is amended to expressly exempt from disclosure information regarding “payroll deduction including the amount and identification of the deduction” contained within personnel records and public employment-related records.
In accordance with prior cases, MRSC has historically advised that certain payroll deductions, such as voluntary retirement contributions, union dues, and charitable contributions, were likely exempt under an invasion of privacy analysis because there is no legitimate public concern in how employees spend their salary. See, e.g., Tacoma Public Library v. Woessner, 90 Wn. App. 205 (1998); and Cowles Publishing v. State Patrol, 44 Wash. App 882 (1986), rev on other grounds 109 Wn. 2d 712. The question remained whether “involuntary” deductions, such as mandatory retirement contributions, would also be exempt.
This new statutory exemption removes the need to engage in a privacy analysis and parse out which payroll deductions would be exempt — the exemption now applies to “payroll deductions” without any limitation. Further, the exemption appears to apply not only to information in the official payroll and pay stub records but also to information found in other public employment-related records, such as annual “cafeteria” deduction authorizations or garnishment orders.
Photographs and birth month and year
SSHB 1888 also extends an existing exemption that previously only applied to employees and workers of criminal justice agencies to all “employees or volunteers of a public agency.” RCW 42.56.250(8). Photographs and month and year of birth in all personnel files are exempt from disclosure, except when requested by the news media, which has access to photographs and the full date of birth.
This photograph exemption does not apply to all “public employment-related” photos that an agency may have of an employee, such as photos of a retirement party. Rather, photographs in personnel files are typically copies of badge photographs. There may also be photographs associated with internal personnel investigations, which should also be analyzed for potential application of the exemption.
Further, the birth month and year exemption only applies to information in the personnel files. If the information is shared in another record, such as a monthly newsletter wishing employees a “Happy Birthday,” the birth month and year in those records would not be exempt and should not be redacted. Note that the calendar day of birth is not exempt from disclosure. Public records officers will need to be careful that they do not redact the entire date of birth when they are preparing records for disclosure.
Practice tip: If redacting just the month and year will be a particularly onerous and time-consuming burden, such as for a large volume of records, consider asking the requestor if they are willing to voluntarily exclude the full date of birth from their records request. This may make it easier to apply redactions a bit faster. Be sure to get the requestor’s agreement in writing.
Personal demographic details
The new subsection RCW 42.56.250(11) creates an exemption for an employee’s personal demographic details voluntarily submitted to and maintained by a state agency or a higher education institution. This exemption does not apply to information in the records of local governments, such as cities, towns, counties, and special purpose districts.
Public agencies have long had the option to provide third-party notice to persons named in a record or to whom a record specifically pertains that their information is about to be disclosed in response to a public records request. This notice, while not mandatory in most cases, gives a third party time to go to court and obtain an order prohibiting the release of their information. See RCW 42.56.520; 42.56.540.
SSHB 1888 now makes this third-party notice mandatory for requests for information found exclusively in certain employee records. The new subsection RCW 42.56.250(12), with emphasis added, provides:
Upon receipt of a request for information located exclusively in an employee’s personnel, payroll, supervisor, or training file, the agency must provide notice to the employee, to any union representing the employee, and to the requestor. The notice must state:
(a) The date of the request;
(b) The nature of the requested record relating to the employee;
(c) That the agency will release any information in the record which is not exempt from the disclosure requirements of [chapter RCW 42.56] at least ten days from the date the notice is made; and
(d) That the employee may seek to enjoin release of the records under RCW 42.56.540.The notice requirement is limited to requests for information that is “exclusively” in the relevant files. Arguably, if the information is also available elsewhere, then the agency is not required to provide notice to the employee.
The notice requirement is limited to requests for information that is “exclusively” in the relevant files. Arguably, if the information is also available elsewhere, then the agency is not required to provide notice to the employee and union representative (if the employee is represented), although it may be a good practice to go ahead and do so.
While the statute does say the agency “must” provided notice to the employee, if the employee is the requestor, then an agency would likely not have to go through this process. Alternatively, the agency can request a current employee utilize their statutory right under RCW 49.12.240 to inspect their own personnel files, thereby avoiding the procedural requirements of the PRA altogether.
MRSC also recommends agencies include in the notice a specific date the record will be released if the third party does not present the agency with an order from the court.
So long as courts remain only partially open due to the COVID-19 pandemic, public records officers will likely need to provide more than 10 days for third parties to obtain a court order prohibiting release of a record. See our blog post: The PRA and Third-Party Notice During Emergency Court Shutdowns.
What if the employee is no longer employed with the agency? The statute does not expressly state that former employees are entitled to this notice, but it also does not specifically limit its application to current employees either. There are certain logistical challenges in providing notice to former employees, particularly if the former employee has moved. If the agency has a current practice of voluntarily providing notice to former employees, it would probably be good to continue that practice. Agencies should consult with their attorneys on the best way to handle this grey area.
Finally, be sure to send the requestor a copy of any third-party notices that you provide.
The title of SSHB 188 is “An act relating to protecting employee information from public disclosure.” I view this act as an attempt by the legislature to further balance the public’s right to monitor the business of government against the individual privacy interests of those who work for the government. While the new exemptions address specific personal information, the notice requirement also ensures employees are informed even when their non-exempt information is about to be released to the public.
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