North Carolina § 153A-98 - Privacy of employee personnel records.

§ 153A-98. Privacy of employee personnel records.

Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files of employees, former employees, or applicants for employment maintained by a county are subject to inspection and may be disclosed only as provided by this section. For purposes of this section, an employee's personnel file consists of any information in any form gathered by the county with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. As used in this section, "employee" includes former employees of the county. The following information with respect to each county employee is a matter of public record: Name. Age. Date of original employment or appointment to the county service. The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession. Current position. Title. Current salary. Date and amount of each increase or decrease in salary with that county. Date and type of each promotion, demotion, transfer, suspension, separation or other change in position classification with that county. Date and general description of the reasons for each promotion with that county. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the county. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the county setting forth the specific acts or omissions that are the basis of the dismissal. The office to which the employee is currently assigned. For the purposes of this subsection, the term "salary" includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity. The board of county commissioners shall determine in what form and by whom this information will be maintained. Any person may have access to this information for the purpose of inspection, examination, and copying, during regular business hours, subject only to such rules and regulations for the safekeeping of public records as the board of commissioners may have adopted. Any person denied access to this information may apply to the appropriate division of the General Court of Justice for an order compelling disclosure, and the court shall have jurisdiction to issue such orders. All information contained in a county employee's personnel file, other than the information made public by subsection (b) of this section, is confidential and shall be open to inspection only in the following instances: The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient. A licensed physician designated in writing by the employee may examine the employee's medical record. A county employee having supervisory authority over the employee may examine all material in the employee's personnel file. By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court. An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution of the employee, or for the purpose of assisting in an investigation of the employee's tax liability. However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation. An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release. The county manager, with concurrence of the board of county commissioners, or, in counties not having a manager, the board of county commissioners may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a county employee and the reasons for that personnel action. Before releasing the information, the manager or board shall determine in writing that the release is essential to maintaining public confidence in the administration of county services or to maintaining the level and quality of county services. This written determination shall be retained in the office of the manager or the county clerk, is a record available for public inspection and shall become part of the employee's personnel file. Even if considered part of an employee's personnel file, the following information need not be disclosed to an employee nor to any other person: Testing or examination material used solely to determine individual qualifications for appointment, employment, or promotion in the county's service, when disclosure would compromise the objectivity or the fairness of the testing or examination process. Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded. Information that might identify an undercover law enforcement officer or a law enforcement informer. Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials. The board of county commissioners may permit access, subject to limitations they may impose, to selected personnel files by a professional representative of a training, research, or academic institution if that person certifies that he will not release information identifying the employees whose files are opened and that the information will be used solely for statistical, research, or teaching purposes. This certification shall be retained by the county as long as each personnel file so examined is retained. Repealed by Session Laws 2016-108, s. 2(g), effective July 22, 2016. Even if considered part of an employee's personnel file, the following information regarding any sworn law enforcement officer shall not be disclosed to an employee or any other person, unless disclosed in accordance with G.S. 132-1.4, or in accordance with G.S. 132-1.10, or for the personal safety of that sworn law enforcement officer or any other person residing in the same residence: Information that might identify the residence of a sworn law enforcement officer. Emergency contact information. Any identifying information as defined in G.S. 14-113.20. Notwithstanding the requirements of this section, information shall be provided to the State Board of Elections from employee personnel records as provided in G.S. 163-22. The board of commissioners of a county that maintains personnel files containing information other than the information mentioned in subsection (b) of this section shall establish procedures whereby an employee who objects to material in his file on grounds that it is inaccurate or misleading may seek to have the material removed from the file or may place in the file a statement relating to the material. A public official or employee who knowingly, willfully, and with malice permits any person to have access to information contained in a personnel file, except as is permitted by this section, is guilty of a Class 3 misdemeanor and upon conviction shall only be fined an amount not more than five hundred dollars ($500.00). Any person, not specifically authorized by this section to have access to a personnel file designated as confidential, who shall knowingly and willfully examine in its official filing place, remove or copy any portion of a confidential personnel file shall be guilty of a Class 3 misdemeanor and upon conviction shall only be fined in the discretion of the court but not in excess of five hundred dollars ($500.00). History (1975, c. 701, s. 1; 1981, c. 926, ss. 1, 5-8; 1993, c. 539, ss. 1059, 1060; 1994, Ex. Sess., c. 24, s. 14(c); 2007-508, s. 6; 2008-194, s. 11(d); 2010-169, s. 18(e); 2015-225, s. 1; 2016-108, s. 2(g); 2018-13, s. 3.2(b); 2018-146, s. 6.1.) Editor's Note. - Session Laws 2016-108, s. 9, is a severability clause. Session Laws 2018-13, s. 6, is a severability clause. Session Laws 2018-13, s. 7, made subsection (c5) of this section, as added by Session Laws 2018-13, s. 3.2(b), effective June 20, 2018, and applicable to elections held on or after that date. Session Laws 2018-146, s. 6.1, provides: "Consistent with this act, the Revisor is authorized to change all references to the Bipartisan State Board of Elections and Ethics Enforcement to instead be references to the State Board of Elections, State Ethics Commission, or Secretary of State, as appropriate. The Revisor may modify statutory citations throughout the General Statutes, as appropriate, and may modify any references to statutory divisions, such as 'Chapter,' 'Subchapter,' 'Article,' 'Part,' 'section,' and 'subsection'; adjust the order of lists of multiple statutes to maintain statutory order; correct terms and conform names and titles changed by this act; eliminate duplicative references to the State Boards that result from the changes authorized by this section; and make conforming changes to catch lines and references to catch lines. The Revisor may also adjust subject and verb agreement and the placement of conjunctions. The Revisor shall consult with the Bipartisan State Board of Elections and Ethics Enforcement, the State Board of Elections, the State Ethics Commission, and the Secretary of State, as appropriate, on this recodification." Pursuant to that authority, "State Board of Elections" was substituted for "State Board of Elections and Ethics Enforcement" in subsection (c). Effect of Amendments. - Session Laws 2007-508, s. 6, effective August 30, 2007, in subsection (b), inserted "the terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the county has the written contract or a record of the oral contract in its possession" in the first sentence, added the second sentence, and made a minor grammatical change. Session Laws 2008-194, s. 11(d), effective August 8, 2008, added subsection (c3). Session Laws 2010-169, s. 18(e), effective October 1, 2010, subdivided subsection (b), adding the subdivision designations and making multiple stylistic changes; in subdivision (b)(8), substituted "each increase or decrease in salary with that county" for "most recent increase or decrease in salary"; in subdivision (b)(9), substituted "Date and type of each promotion" for "date of most recent promotion," and added "with that county"; added subdivisions (b)(10) and (b)(11); and added the subsection (b1) and (b2) designations. Session Laws 2015-225, s. 1, effective October 1, 2015, added subsection (c4). Session Laws 2016-108, s. 2(g), effective July 22, 2016, deleted subsection (c3), which read: "Notwithstanding any provision of this section to the contrary, the Retirement Systems Division of the Department of State Treasurer may disclose the name and mailing address of former local governmental employees to domiciled, nonprofit organizations representing 2,000 or more active or retired State government, local government, or public school employees." Session Laws 2018-13, s. 3.2(b), added subsection (c5). For effective date and applicability, see editor's note. Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994). For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C.L. Rev. 2228 (2011).