The Best Defense Is A Good Offense: Employers’ Use of The FOIA For Background Checks

briefcase-lock_72DPI_RGBIn representing primarily public sector bodies over most of my career, I have generally been in a position of advising clients in how to comply with Freedom of Information Act (“FOIA”) requests, and thus usually assist those in a “defensive” posture.   However, in light of the FOIA’s limited protections and exemptions with regard to the disclosure of personnel records, employers of all stripes should feel free to use the FOIA in an “offensive” posture by requesting records concerning potential employees who formerly worked in the public sector.

A common mistake that employers (and employees) make is assuming that personnel files for public employees are governed and protected by the so-called Connecticut Personnel Files Act.  The Personnel Files Act (Connecticut General Statutes §31-128, et seq.), which generally restricts disclosure of personnel files, only applies to private sector employees; this Act does not apply to employees of public agencies. See City of Hartford v. FOIC, 201 Conn. 421, 429-431 (1986).  Rather, the personnel , medical and “similar” files of public sector employees are subject to disclosure to the public at large consistent with the commands the FOIA.  Generally, such records are only exempt from disclosure where disclosure would constitute an ”invasion of personal privacy.”

What does that mean?  The Freedom of Information Commission (“FOIC”) and the courts have repeatedly pronounced that records relating to public employees are presumptively legitimate matters of public concern, noting that 1) a public employee’s expectation of privacy is diminished, as he/she is “a servant of and accountable to the public,” and 2) “the public has a right to know not only who their employees are, but also when their public employees are and are not performing their duties.”  Perkins v. FOIC, 228 Conn. 158, 175 (1993); Kaloidis v. Chief, Police Department, City of Waterbury, Docket #FIC 2013-047 (December 18, 2013).  As such, disclosure of such personnel records is the general rule.

So why should employers (whether public sector or private sector) care about the FOIA?  All employers can use the FOIA for essentially a background check where a job applicant was previously employed in the public sector.  While “Google” and other 21st  century search mechanisms provide employers with tools to find information that may be in plain sight (especially where there is notoriety regarding the job applicant), less prominent information that may not have made it into the media regarding the public sector employee is available to the public at large upon request.  For example, with certain exceptions (for example, teachers), job performance evaluations are public records that are subject to disclosure, as are 1) employment contracts, 2) records of employee discipline, and 3) complaints, investigation reports and other records of employee misconduct.   Even most home addresses of public employees are public records. Furthermore, employers should realize that public sector bodies generally have a tight time frame for responding to requests under the FOIA. Thus, an employer can usually be assured of getting timely information, which could be essential in the hiring process.

These circumstances are further proof that the FOIA is something that all types of entities 1) should be familiar with, and 2) can utilize to their advantage.

This and other issues are discussed  in more detail in Understanding the Connecticut Freedom of Information Act and Access to Public Meetings and Records, by Mark J. Sommaruga, Esq.  For a copy of this book, please click here.

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