Personnel Records

Privacy Interests in Personnel Records

Judge Thomas Cooley famously described the right to privacy as “the right to be let alone” (Cooley, 1888, p. 29). The expectations that individuals have to privacy in many matters is supported by federal and state constitutional law, federal and state statutory law, and common law.

Under the U.S. Constitution, there are two types of privacy. The first type, usually called “information privacy,” deals with the federal government's release of private information about individuals. [Page 348]The second type, often referred to as “constitutional autonomy,” deals with situations in which the federal government interferes with highly private individual decisions. In addition, many jurisdictions have explicit privacy protections in their state constitutions. For example, Montana's state constitution provides a guarantee as follows: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Federal statutory law also recognizes certain privacy interests in personnel records. The Privacy Act of 1974, now incorporated into the federal Freedom of Information Act, controls the extent and uses of information about individuals that is maintained by federal agencies. The Americans with Disabilities Act (ADA) requires employers covered by its provisions to secure information obtained by post-job offer medical examinations in places separate from general personnel files while maintaining their confidentiality. Insofar as colleges and universities are providers of health care or purchase group health insurance, they are subject to the privacy provisions in the Health Insurance Portability and Accountability Act. At least one employee claimed that the college transcripts in her personnel file were covered by the Family Education Rights and Privacy Act (FERPA). However, the Fifth Circuit affirmed that once transcripts had become part of an individual's personnel file, they were no longer educational records as defined by FERPA and therefore were subject to disclosure under state law (Klein Independent School District v. Mattox, 1988).

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