Employee Investigative Reports Subject to FOIA
From The Workplace Report with Ancel Glink: Internal Employee Investigative Reports May be Subject to FOIA Release
According to recent Public Access Counselor (PAC) and court
opinions, reports of internal investigations of alleged public employee
misconduct are subject to public disclosure pursuant to the Freedom of
Information Act. In a binding opinion, (Public Access Opinion 13-011) the PAC
addressed whether or not internal investigative reports concerning employee
misconduct by the assistant police chief were exempt from disclosure under
section 7(1)(n) of the Freedom of Information Act. Section 7(1)(n) exempts from
disclosure records “relating to a public body’s adjudication of employee
grievances or disciplinary cases; however this exemption shall not extend to
the final outcome of cases in which discipline is imposed.” The City of Bloomington argued that its
investigative records were exempt as records relating to a public body’s
adjudication of an employee’s disciplinary case. In this particular case, the
assistant chief was involved in a traffic accident. The city asserted that an
informal “adjudication” occurred when the chief of police reviewed the
investigative reports and imposed a five day suspension. No formal grievance or
formal adjudication was ever held.
In finding that these reports had to be released, the PAC emphasized the strong public interest in access to a
public body’s internal investigation into a personnel matter. “Disclosure of a
full and complete account of a public body's investigation of allegations of
employee misconduct ensures that the investigation is consistent with the
public body’s internal rules and procedures and that the discipline imposed, if
any, is consistent with the public body’s findings.”
Given these decisions employers may want to consider engaging an attorney on
behalf of the public body for employee misconduct investigations. By
placing an attorney in charge of an investigation the attorney client exemption
found in section 7(1)(m) of the Freedom of Information Act may apply. Section
7(1)(m) exempts from disclosure: “Communications between a public body
and an attorney or auditor representing the public body that would not be
subject to discovery in litigation, and materials prepared or compiled by or
for a public body in anticipation of a criminal, civil, or administrative
proceeding upon the request of an attorney advising the public body….”
To read the entire post, go to Internal Employee Investigative Reports May be Subject to FOIA Release
0 comments:
Post a Comment