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Wednesday, September 10, 2014

Employee Investigative Reports Subject to FOIA

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….”


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