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FOIA Update: FOIA Counselor: Federal Job Data May be Disclosed

FOIA Update
Vol. II, No. 3

FOIA Counselor

Federal Job Data May be Disclosed

Several agencies have inquired whether individual critical elements and performance standards must be released in response to FOIA requests. There are two stages at which this question can arise. The first is when the standards are drawn up. The second is when the critical elements and performance standards become part of the evaluation of an employee.

Critical elements and performance standards are terms of art from the regulations implementing the Civil Service Reform Act of 1979. They describe the functions that make up a job and the levels to which an employee must carry out his/her functions. See 5 C.F.R. § 430.

A request for a list of critical elements and performance standards for a particular position is analogous to a request for a job description since they contain the same types of information as critical elements and performance standards. Job descriptions are generally released.

Under the standards outlined by the courts, it is necessary to balance the public benefit from disclosure against the extent of invasion of a person's privacy. The public interest in knowing what standards of performance are expected of public employees is obviously high, particularly for officials subject to receiving merit pay. This is consistent with the Federal Personnel Manual as well. (Chapter 295, Subchapter 7, 2 § i)

The analysis on whether to release or withhold Performance Appraisals--evaluations done yearly to determine if employees are meeting the critical elements and performance standards--is more complex.

The decision whether to release this information should be made in light of the personal privacy interests protected by Exemption 6. For this exemption to apply, the information must constitute "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy," and the privacy interest must outweigh the public's interest in disclosure.

The Office of Personnel Management's view is that completed evaluations should generally not be released absent an overriding public interest. The Freedom of Information Committee of the Department of Justice has suggested that there is a rebuttable presumption that the privacy interest would outweigh the public interest in determining whether to release an evaluation. In other words, it may be possible to prove that the public interest outweighs the privacy interest, depending on the facts of a particular case.

Factors coming into play in weighing a request might be the employee's position, the grade level, the management position, the existence of allegations, or convictions for wrongdoing, and any adverse actions which may have been taken.

The court in the Columbia Packing Co. Inc. v. U.S. Department of Agriculture, 563 F.2d 495 (1st Cir. 1979) case ordered disclosure of material which included staff evaluations. The Columbia Packing court said:

To forestall similar occurrences, the public has an interest in discerning how officials conduct themselves prior to their discharge for bribery, how well they were supervised and whether USDA or any of its other personnel were chargeable with any degree of culpability for these crimes.

Thus, the public interest balancing done for evaluations in Columbia Packing is applicable to the question of whether to release this type of information.

The recent line of decisions in the D.C. Circuit narrowing the meaning of "similar file" in Exemption 6 (Sims v. CIA, 642 F.2d 562 (D.C. Cir., 1980), Simpson v. Vance, No. 79-1889 (D.C. Cir., Sept. 25,1980), Washington Post v. U.S. Dept. of State, Civ. Nos. 80-1509 & 80-1606, (D.D.C., Feb. 24, 1981) will have no effect on these documents as long as they are maintained in personnel files. If the completed evaluations are found outside personnel files, all of the implications of the above cases will become relevant. (See FOIA Update, Winter 1981).

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Updated August 13, 2014