There’s a new reminder out from a North Carolina court that, just because a government decision involves “personnel,” doesn’t mean it’s legally impenetrable to public scrutiny.
In May 2014, North Carolina’s Alamance-Burlington County School Board held a closed-door “executive session” and, unexpectedly, approved a $200,000 buyout to its recently rehired superintendent for unexplained reasons. Understandably, local journalists wanted to know why. They filed a request for the meeting minutes under North Carolina’s Public Records Act, and were told: Sorry, discussions of personnel decisions are confidential.
The Times News Publishing Company, which owns the daily newspaper in Burlington, filed suit. And in a July 21 ruling, North Carolina’s Court of Appeals sided with the paper, stating: “we reject the school board’s argument that the closed meeting minutes are categorically exempt from public disclosure because they concern a personnel matter.”
The school board relied on two different exemptions to North Carolina’s open-government laws. First, the Public Records Act allows an agency to withhold “personnel files,” which the law defines as records “gathered” by a school district about an employee’s hiring, promotion or termination. Second, the Open Meetings Law allows an agency to withhold records that “would frustrate the purpose of a closed session.”
In an opinion by Judge Richard Dietz, the appeals court held that the minutes of a board meeting are not “personnel files,” but that if the minutes contain the kind of information exempted from disclosure in personnel files, then those parts of the minutes can be kept confidential. But the decision isn’t all-or-nothing:
[C]ore personnel information such as the details of work performance and the reasons for an employee’s departure will remain permanently exempt from disclosure. But other aspects of the board’s discussion in the closed session, including the board’s own political and policy considerations, are not protected from disclosure.
Significantly, the court refused to defer to the school board’s determination that everything discussed during the non-public session constitutes confidential personnel material. The court said that, when a government agency makes a blanket claim of secrecy, the trial court must inspect the minutes and reach an independent decision as to what’s exempt. That’s helpful, because school board lawyers habitually over-classify records as confidential; now, they’re on notice that the judge will be checking their homework.
The court gave an gentle under-the-table shin-kick to the General Assembly, pointing out that the law probably needs amending to allow for greater disclosure when decisions of such public consequence are made behind closed doors:
[W]e note that under the ‘personnel file’ exception to the Public Records Act, many of the specific facts about the superintendent’s departure may remain permanently hidden from the public—perhaps an unintended outcome for a law meant to limit secrecy in government.
The Times News case is another indicator that government agencies’ broad-brush claims of “personnel confidentiality” are frequently overblown and vulnerable to legal challenge. Journalists should instinctively doubt, and skeptically challenge, claims that personnel decisions are none of the public’s business.