Open Records Have Limits

Fawkes-Lee & Ryan spoke to the Iowa Public Information Board this afternoon (6/19/14).  Below is our comments.

Before the Iowa Public Information Board

June 19, 2014

I am Marty Ryan and I represent Fawkes-Lee & Ryan, a “web-based, service-oriented, grassroots small business specifically structured to address the growing need to strengthen specific Constitutional Freedoms and related social issues.”  Two of the issues we are dedicated to strengthening are access to public records/open meetings, and privacy.

We believe that openness in government is essential for a healthy democracy to survive.

Likewise, we are dedicated to working toward protecting individual freedoms, with a strong emphasis on privacy.

Often, when the public’s right to know bumps up against a privacy issue, we approach that fork in the road by following the individual’s right to privacy.

An article in the Thursday Des Moines Register cites an author and professor from Indiana who claims to have a “no brainer” solution to an alleged problem of governments and companies not having access to potential employees’ past.  He claims that “employers should request or require job applicants and finalists to sign waivers giving their current or previous employers permission to release personnel records and speak freely about the past work performances.”  (Emphasis ours.)

While the focus of the article is not about a person’s privacy, it is closely related to the issue of personnel records.  Personnel records do not belong in the public eye, whether the employer is the government or a private corporation.

The Indiana professor’s idea cannot fly in Iowa.

Iowa law is more complex than that. Chapter 91B[1] of Iowa law addresses how current employees may obtain copies of information in their personnel record.  Further, a former employee, according to a federal lawsuit, cannot have access at all because, well, the person is no longer an employee.  If a former employee may not legally obtain a copy of her disciplinary record, why should anyone else be able to gain access?

There are several other reasons why this practice should never be allowed.  A disciplinary matter such as absences may be the result of an embarrassing illness.  Even if the only piece of the record is the number of absences in a given number of days or months, there can be no allowance for the employee to refute the accusations by the employer or an outside force without possibly giving information that is protected under federal law (HPPA).

Whistleblowers will refrain from coming forward.  Without the opportunity to add due process considerations into the record, and remember, the record is held by the employer, a person’s future and quality of life for his family can be compromised by the one-sided notations within the record.

Personnel records contain facts.  Or, do they?  There is no statute that requires a personnel record to contain undisputed facts.  Name, Social Security Number, Date of Birth, and gender are facts.  Comments from a supervisor about a person’s work ethic, idiosyncrasies, and other observations are all subjective and speculative.  Yet, many disciplinary actions are based upon the latter.

We bring this to your attention because no one seems to be presenting a different view other than that carried by the print media.  There are two sides to every story.  We present our side because it is possible that at some time in the future this Board may flirt with the possibility of proposing legislation or making a decision in other facets of the Board’s responsibilities.  In addition, we feel it should be a part of the educational repertoire provided by staff.

[1]   91B.1  Files — access by employees.

1.  An employee, as defined in section 91A.2, shall have access to and shall be permitted to obtain a copy of the employee’s personnel file maintained by the employee’s employer, as defined in section 91A.2, including but not limited to performance evaluations, disciplinary records, and other information concerning employer-employee relations.

2.  However, an employee’s access to a personnel file is subject to all of the following:

a.  The employer and employee shall agree on the time the employee may have access to the employee’s personnel file, and a representative of the employer may be present.

b.  An employee shall not have access to employment references written for the employee.

c.  An employer may charge a reasonable fee for each page of a copy made by the employer for an employee of an item in the employee’s personnel file. For purposes of this paragraph, “reasonable fee” means an amount equivalent to an amount charged per page for copies made by a commercial copying business.

90 Acts, ch 1033, §1; 98 Acts, ch 1022, §1; 2008 Acts, ch 1032, §201


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