The Virginia Coalition for Open Government - Attorney General's Opinion 1983-84 #280

This is in response to your request for my opinion with regard to release of certain records in light of the decision rendered by the Supreme Court of Virginia in Hinderiiter v. Humphries, 224 Va. 439, 297 S.E.2d 684 (1982). Specifically, the question which you have posed is:

"In the event the local governing body after conducting an investigation, takes disciplinary action for cause, in the form of suspension, demotion or dismissal of a police officer or other town employee, is the information gathered pertinent to the cause for such action, subject to public release under the Freedom of Information Act 2.1-340 et seq., or is such information protected from disclosure under the Privacy Protection Act 2.1-377 et seq. of the Virginia Code."

To answer your question, the Freedom of Information Act and the Privacy Act must be applied to your hypothetical situation. The two Acts are not mutually exclusive.

The type of information you describe comes within the definition of "official records" under the Freedom of Information Act. Section 2.1- 342(a). As such, it must be disclosed unless specifically excepted. The only exception to mandatory disclosure which may be applicable to your hypothetical situation would be that of "personnel records." This type of record is not required to be disclosed under the Act; however, an agency has the discretion to disclose such records. See 1977-1978 Report of the Attorney General at 489.

The Freedom of Information Act does not define the term "personnel records." Normally, personnel records include those records maintained by a public agency which identify an employee, his rank or classification, rate of pay, performance and/or job history. Therefore, the Freedom of information Act would not mandate disclosure of your hypothetical investigative information if it were properly part of "personnel records."

The Privacy Protection Act defines "personal information" in 2.1- 379(2) as follows: "all information that describes, locates or indexes anything about an individual including his real or personal property holdings derived from tax returns, and his education, financial transactions, medical history, ancestry, religion, political ideology, criminal or employment record, or that affords a basis for inferring personal characteristics, such as finger and voice prints, photographs, or things done by or to such individual...."

Manifestly, the definition of "personal information" is not the same as "personnel records." The Supreme Court of Virginia in Hinderliter v. Humphries, supra, related tha the investigative report at issue was placed in the police officer's personnel file; however, that case involved the application of the Privacy Act, not the application of the Freedom of information Act and, therefore, the Court did not discuss what constitutes a "personnel record." The Court did conclude that the contents of the report were properly considered "personal information" as that term is defined in the Privacy Act. Further, the Court found that pursuant to police department policy, the personnel file, of which the report became a part, was an "information system" for purposes of the Privacy Act.s

The Court concluded that the release of the report, therefore, could be done only in accordance with procedures set out in the Privacy Act. Applying the decision in Hinderliter to the facts in your hypothetical investigation, I am of the opinion that the information is subject to public release by the local governing body only if:

(1) the information is not part of the employee's "personnel record," and(2) the information is not "personal information" as defined in 2.1-379(2). If the information is "personal information" kept by the agency in an "information system," the governing body may not release it except in strict compliance with the Act.

1Because you indicated that the investigation has been concluded, the exception for an actve administrative investigation, 2. 1-342(b)(5), is not applicable 2 224 Va. at 445. 3 224 Va. at 447 The Court did not indicate that maintaining a separate file was essential in every case to constitute a "personnel file."

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