The Public Access Counselor (PAC) recently addressed the issue of whether informal employee investigative reports concerning the misconduct of a public employee are subject to disclosure under Section 7(1)(n) of the FOIA. In Public Access Opinion 13-011, the PAC reviewed a FOIA request to the City of Bloomington for information regarding a traffic accident involving the Bloomington Assistant Police Chief that the City denied.

In denying the request, the City asserted that the request asked for “private information” which is exempt from disclosure pursuant to FOIA. Additionally, the City asserted that the request asked for records relating to a public body’s adjudication of employee grievances or disciplinary cases, which are exempt from disclosure under Section 7(1)(n) of the FOIA.

On review, the PAC determined that the records were subject to disclosure under the FOIA because the employee investigation that resulted in Mr. Wall’s suspension was an informal inquiry, not a hearing under the Uniform Peace Officers Disciplinary Act or an administrative proceeding subject to the City’s rules. Because there was no formal adjudication of a disciplinary case, the records were not exempt from disclosure pursuant to Section 7(1)(n) of the FOIA. The PAC reiterated that records that are created during a public body’s internal investigation that do not result in any formal adjudication are not exempt from disclosure under Section 7(1)(n) of the FOIA. Here, Mr. Wall’s suspension resulted from an informal investigation and not a formal adjudication, and therefore, the records had to be disclosed. In its opinion, the PAC emphasized the public interest in access to a public body’s investigations of personnel matters: “Disclosure of a full and complete account of a public body’s investigation of allegations of employee misconduct ensures that the investigation is consistent with the public body’s internal rules and procedures and that the discipline imposed, if any, is consistent with the public body’s findings.”

While this decision should not dissuade public bodies from conducting thorough investigations of employee misconduct, public bodies must be mindful that internal investigations of employees may be subject to release pursuant to a FOIA request. If it is imperative that an investigatory report remain confidential, public bodies should work closely with their attorneys prior to completion of a report to determine what safeguards can be utilized to better protect the confidentiality of the report.