Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I keep personal notes in my right-hand desk drawer to document my concerns with teachers and other employees. One of the teachers in my school has asked for a copy of her “personnel file.” Do I have to share my secret notes with her?
Don’t Take My Notes!
As with so many other legal issues, it depends. However, if you have kept those notes truly personal and have not shared those notes with others, you do not have to share them, as discussed below.
First, it is important to recognize that the personnel file is not a geographic location, but rather a category of information. Loris v. Board of Education, Norwalk Public Schools, Docket # FIC 2005-296 (May 10, 2006). In that case, a teacher asked for her “personnel file” in accordance with the Freedom of Information Act (FOIA). In response, the district simply provided the records that were in the file folder in the personnel office, but it did not provide the other documents that the district had concerning her employment. The Freedom of Information Commission ruled that the district violated the FOIA because it did not provide the teacher all of the records to which she was entitled.
In helping you respond to this teacher, Legal Mailbag can offer a functional definition of the “personnel file.” While the state law on personnel files does not apply to public agencies such as boards of education, it provides helpful guidance in defining the records that should be considered “the personnel file.” Conn. Gen. Stat. § 31-128a defines the “personnel file” as “papers, documents and reports, including electronic mail and facsimiles, pertaining to a particular employee that are used or have been used by an employer to determine such employee’s eligibility for employment, promotion, additional compensation, transfer, termination, disciplinary or other adverse personnel action including employee evaluations or reports relating to such employee’s character, credit and work habits.” (Emphasis added). Significantly, and consistent with the FOI case described above, this definition relates to categories of documents, not to a physical location, and it refers to electronic records as well as hard copies.
But wait! There is more to the story. Under the Freedom of Information Act, “preliminary drafts or notes” are exempt from disclosure, provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure. Conn. Gen. Stat. § 1-210(b)(1). When a school administrator takes personal notes to do his or her job (and does not share such notes), these notes may be maintained as confidential under this provision. Lewin v. Freedom of Information Commission, 91 Conn. App. 521 (2005); Bates v. Director, Personnel Department, City of Bristol, Docket #FIC 2015-855 (November 16, 2016).
In conclusion, you can keep those notes confidential (at least unless and until they are subpoenaed in connection with a legal proceeding). However, Legal Mailbag asks why you are so concerned about confidentiality. Fundamental to holding an employee accountable is informing the employee of concerns you may have. Employees (particularly those performing in a deficient manner) are not mind-readers, and they are not likely to address performance concerns that you may have unless you share those concerns with them. Now that summer is here, take some time to go through those secret files you keep and turn your notes into counseling memoranda (or even letters of reprimand) to give these employees fair warning of the need to improve.