Workplace Misconduct Complaints Should be Redacted, Not Withheld, Under FOIA

The Public Access Counselor recently issued a binding opinion finding that a city’s department of human resources violated FOIA when it denied a reporter’s request for complaints of racism, discrimination, or harassment by a particular employee and concerning employees of a particular streets-and-sanitation facility operated by the city.  While the city disclosed certain responsive records, it withheld records of complaints pursuant to Sections 7(1)(c) and 7(1)(f) of FOIA.

Section 7(1)(c) of FOIA exempts from disclosure “personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy” but excludes “information that bears on the public duties of public employees and officials.”    In evaluating the city’s assertion that the complaints were exempted as an unwarranted invasion of personal privacy, the PAC considered several factors, such as the public’s interest in disclosure, the degree of invasion of personal privacy, and the availability of alternative means of obtaining the requested information. The PAC found that these factors weighed in favor of disclosure of the complaints due to the significant public interest in information regarding racial discrimination, harassment, and other forms of public employee misconduct and that the department improperly withheld these records under FOIA Section 7(1)(c). At the same time, the PAC acknowledged the city’s concern that failing to protect the confidentiality of complainants could discourage employees from reporting alleged misconduct and that the disclosure of details in the complaints could cause embarrassment to complainants and other third parties.  With that in mind, the PAC found that the city could redact the identities of complainants, witnesses, and third parties, as well as any salacious or graphic details in the complaints, rather than withhold the complaints in their entirety.

The PAC also determined that the complaints were not exempt under Section 7(1)(f), which exempts “preliminary drafts” and other predecisional documents from disclosure.  The PAC found that the complaints contained purely factual information and preceded any decision-making process.

This opinion demonstrates that a FOIA request for internal complaints of workplace misconduct  should not be denied in its entirety if the complaints can be redacted in a manner that will protect the privacy of complainants and third parties. Additionally, records that contain purely factual information, including internal complaints, cannot be withheld under the preliminary draft exemption of FOIA.