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It is a common practice for employers to conduct exit interviews for employees. Without even discussing the employment law issues (let alone questions about the appropriate roles and responsibilities for school administrators and board members) that may arise from the use of such interviews, Connecticut’s Freedom of Information Act (FOIA) represents another complicating factor. A recent case before Connecticut’s Freedom of Information Commission (FOIC) illustrates these concerns.
The case. in Hanna v. Chief, Police Department, Town of Old Saybrook, #FIC 2021-0586 (July 13, 2022), a former police department employee requested from the department his complete personnel file, including a copy of his “exit interview.” Per department practices, the former employee was asked to complete a written exit interview. Also consistent with its practices, the exit interview was then reviewed by another police department employee and discussed with the former employee. Department exit interviews are also reviewed by the Chief of Police (who is responsible for evaluating the performance of officers/department managers) and by the Board of Police Commissioners (which is responsible for evaluating the Chief’s performance). The stated purpose of exit interviews is for the department to learn from the leaving employee’s experience, to improve the department’s work environment going forward, and to evaluate supervisors and the department as a whole.
The department refused to produce a copy of the exit interview report, claiming the report was exempt from disclosure. The department argued that disclosing the exit interview would constitute an invasion of the police chief’s privacy. It appears that the former employee used his exit interview to express negative opinions about the boss; the department claims the former employee made “defamatory statements” about the chief in an “effort to discredit” the chief.
The FOIC decision. The former employee then appealed to FOIC about this refusal. Simply put, the FOIC rejected the Department’s defenses. The FOIC noted that the exit interview report was a “personnel” or “similar” file. Generally, a public agency bears a heavy burden if it attempts to protect such records from disclosure on a claim of invasion of privacy. The agency must find that such records 1) do not relate to legitimate matters of public interest and 2) the records/information contained therein would be highly offensive to a reasonable person. Here, the FOIC noted that the former employee’s personal impressions of the chief were related to his duties and responsibilities as chief of a police department and, as such, inherently involved a matter of public concern. The FOIC rejected the department’s claims that disclosure would be “defamatory and otherwise damaging to the reputation” of the chief, noting that whether something is damaging to someone’s reputation is not grounds for shielding documents from disclosure under the FOIA. The FOIC ordered the department to release the interview report.
What does this mean? It is no shock that FOIC would require disclosure of these types of records. FOIC noted that there is a diminished expectation of privacy for government officials, therefore most of what is found in personal/similar files are generally public records subject to disclosure under the FOIA. Just as the FOIC found that a complaint with unsubstantiated allegations against a public official is generally subject to disclosure (as the public has a right to know about the conduct of public officials – along with any investigation into alleged misconduct), the fact that a report may harm someone’s reputation or make false statements is not sufficient to protect it from disclosure under the FOIA.
Can public agencies (including school districts) cite special circumstances to protect an exit interview from disclosure? FOIA contains an exception to the disclosure of information about “educational records,” which are covered by the Family Educational Rights and Privacy Act (FERPA). Generally, FERPA prohibits schools from disclosing education records (or personal information about students contained in those records) without parental consent. If the exit interview contains information about employee misconduct where the alleged victim is a student, the school may redact personal information about the student. However, recent cases show that FOIC is taking a narrower view of what constitutes an “educational record”, and the exit interview report itself may still be subject to disclosure (albeit with redactions of student names and/or other personal information).
In addition, FOIA protects against disclosure “preliminary drafts or notes” when the public agency determines that “the public interest in withholding such documents clearly outweighs the public interest in disclosure.” There are a number of cases in which FOIC has authorized the withholding of personal notes or drafts of documents. While this exception may exclude draft reports (and personal notes of someone conducting an interview on behalf of a public agency), this exception will not cover written statements by employees or other “finished” documents.
Finally, although there is a broad exemption from disclosure for public schools teacher evaluationsboth case law and the FOIA amendments indicate that this exception is limited to actual evaluations (not summary records/allegations of misconduct) and to the extent such exit interviews contain allegations of teacher misconduct, they will still be subject to disclosure.
Please note: This post is adapted from an article written by the author for the September 2022 issue. CABE Journal
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