Employee Resumes and Applications Subject to Release under FOIA
In a binding decision published on November 25, 2014, the Public Access Counselor (PAC) found the Village of Winnetka in violation of FOIA after the Village denied a request that asked for a copy of a Village employee's employment application and resume. The Village denied the request and cited FOIA exemptions, including under section 7(1)(c) of the Act. It is important for public bodies to be aware that the personal privacy exemption under section 7(1)(c) requires the balancing of four factors to determine whether an individual's privacy interests outweigh the interests of the public in disclosure.
William Buell submitted a FOIA request to the Village seeking "a copy of the completed employment application and resume for James Bernahl for the position of Assistant Director of Public Works and Engineering." The Village denied Buell's FOIA request and cited FOIA exemptions, including section 7(1)(c). Buell filed a Request for Review with the Public Access Bureau that expressed concern that Bernahl's hiring may have been in violation of Illinois law.
Under section 7(1)(c), the Village argued that Bernahl's employment application and resume were exempt because the employment history and other information in the resume and employment application did not pertain to the public duties of public employees. The Village cited several cases in its argument, but those cases interpreted an earlier version of the personal privacy exemption. Prior to January 1, 2010, the personal privacy exemption was found in section 7(1)(b) of FOIA and exempted the disclosure information that would be considered an invasion of personal privacy. However, the Illinois General Assembly enacted Public Act 96-542, effective January 1, 2010, that replaced former section 7(1)(b) with the current section 7(1)(c).
Under section 7(1)(c), records are no longer considered exempt simply because they are maintained in a personnel file. A public body must release records containing personal information regarding its officers and employees unless it determines that "the subject's right to privacy outweighs any legitimate public interest in obtaining the information." There is a balancing test that requires public bodies to balance the privacy rights of an employee and the interests of the public in obtaining information concerning an employee. Public bodies must consider four factors before releasing information concerning an employee: (1) the requester's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information. The PAC analyzed each factor.
1. Requester's Interest in Disclosure
Buell requested the employment application and resume to determine whether Bernahl's hiring complied with State laws that require municipal managers to make appointments based on "merit and fitness" and that give preference to veterans.
2. Public Interest in Disclosure
The PAC reasoned the general public has an interest in accessing information that demonstrates that the hiring of public employees complies with State law. Furthermore, there is a compelling public interest in disclosure of a public employee's credentials to enable the public to assess the employee's qualifications to perform his or her public duties.
3. Degree of Invasion of Personal Privacy
The PAC stated the employment application and resume contained personal information concerning Bernahl's education, training, skills, certifications, and employment history. The information was favorable and not embarrassing or potentially damaging to Bernahl's reputation. Moreover, salary information in the employment application reflected payments of public funds that Bernahl received for employment in the public sector. This information would be subject to disclosure.
4. Availability of Alternative Way to Obtain Requested Information
As to the fourth factor, the PAC stated it was unclear whether some or all of the information could be obtained from other sources. To obtain the information, Buell would have needed to contact several sources. It appeared that the information Bernahl supplied to the Village was the most complete and up to date source.
Taking all four factors into account, the PAC found that the public interest in disclosure of Bernahl's resume and employment application outweighed his privacy interests.
In addition to 7(1)(c), the Village also argued that the employment application and resume were exempt under section 7(1)(f), as "inter- and intra-agency predecisional and deliberative material" because the Village used the documents to consider which employee to hire for the position. This exemption was designed to protect the communications process and encourage open discussion among agency employees before a final decision is made. The exemption does not typically justify withholding purely factual information. The PAC found that this exemption did not apply because the employment application and resume contained exclusively factual information concerning Bernahl's background and qualifications for employment.
Lastly, the Village argued that the documents contained certain personal information, such as Bernahl's home address, home phone number, e-mail address, and signature, that fell within the "private information" exemption under 7(1)(b) of FOIA. The PAC agreed and said before the employment application and resume could be released, the Village should redact Bernahl's private information and signature.
It is important for public bodies to be aware that the personal privacy exemption under section 7(1)(c) requires the balancing of the public's interest in disclosure of specific information against the individual's interest in privacy. The exemption under section 7(1)(c) is available only if the individual's privacy interests outweigh the interests of the public in disclosure. A public body should balance the four factors to determine whether an individual's privacy interests outweigh the interests of the public in disclosure. Before releasing an employment application or resume, public bodies should redact private information, such as home addresses, phone numbers, e-mail addresses, and signatures.
We also invite you to join us for a discussion of HB 3796 and FOIA in the Digital Age at one of our seminars entitled "iGovern: Technology Use in the Public Sector, which will be held from 9:00 - 11:30 a.m. on the following dates at the following locations:
In East Peoria on Wednesday, December 17 at the East Peoria Clock Tower Place, 2nd Floor. 201 Clock Tower Drive. Contact Rachel Ford at 309.676.0400 to register.
In Rockford on Thursday, December 18, 2014 at the Northern Illinois University Rockford Campus, 8500 E. State Street, Room 200. Contact Kim Elam at 815.963.4454.
Click here to for more information and to register.