Opinion No. 97-83
Topics:
DEPARTMENT OF REVENUE-DIRECTOR.
PUBLIC RECORDS.
PERSONNEL.
SUNSHINE LAW.
Summary conclusion
Personnel records retained by or the property of the Missouri Department of Revenue are public records subject to public inspection and duplication, except to the extent such records are confidential under state or federal law, such records are exempt from the Sunshine Law under Wilson v. McNeal, 575 S.W.2d 802 (Mo. App. 1978), or such records are exempt from disclosure under the Sunshine Law pursuant to the exemptions in Section 610.025, RSMo Supp. 1982.
Contents of opinion
August 16, 1983
Mr. Richard A. King
Director of Revenue
Department of Revenue
100 East Capitol Avenue
Jefferson City, Missouri 65101
Dear Mr. King:
This opinion is in response to the following questions:
1. Are personnel records of employees of the Missouri Department of Revenue [hereinafter sometimes referred to as “DOR"] open “public records" under . . . [Section] 610.010(4) RSMo., and, therefore, open to inspection by the general public?
2. Are any parts or portions of personnel files and records not subject to Chapter 610 RSMo., and, if so, may the Director of Revenue by rule, policy or procedure designate such parts, portions or personnel records in their entirety as confidential or otherwise unavailable for inspection by members of the general public?
3. Assuming that Chapter 610 RSMo. makes personnel records of employees of the Department of Revenue “public records" and that the Department of Revenue refuses to allow inspection of such records by the general public?
a. Would the Director of Revenue or the Department of Revenue be subject to the remedies and penalties found in . . . [Section] 610.027 RSMo.?
b. Would there be personal liability against the Director of Revenue for such refusal to allow inspection?
4. Assuming that Chapter 610 RSMo. makes personnel records of the Department of Revenue in part or in their entirety “public records" and the Department of Revenue allows inspection of such records by the general public:
a. Would the Department of Revenue or the Director of Revenue be subject to liability or suit by employees of the Department of Revenue for such release of personnel information under state or federal law?
b. Would there be the potential for personal liability against the Director of Revenue for such release of information? [Emphasis in original.]
The personnel records described in your opinion request are said to contain “personal histories, employment applications, letters of reference, performance evaluations, examinations and employee disciplinary actions such as letters of reprimand and dismissals. Other information such as service reports containing evidence of past criminal or police records, driving records and tax history may also be included."
Section 610.015, RSMo 1978, which is part of the Sunshine Law [Footnote 1] states in part: “Except as provided in section 610.025, and except as otherwise provided by law, . . . public records shall be open to the public for inspection and duplication." Section 610.010(4), RSMo Supp. 1982, defines the words “public record" in relevant part as: “[A]ny record retained by or of any public governmental body . . ..." Section 610.010(2), RSMo Supp. 1982, defines the words “public governmental body" in relevant part as:
“[A]ny . . . administrative governmental entity created by the constitution or statutes of this state, . . . including any . . . department, or division of the state, . . ."
DOR is recognized by the Constitution of Missouri as a department within the executive branch of Missouri government. Article IV, Section 12, Missouri Constitution. Therefore, it follows: That DOR is a “public governmental body" under the definition of that phrase in Section 610.010(2), RSMo Supp. 1982; that personnel records retained by or the property of DOR are “public records" under the definition of that phrase in Section 610.010(4), RSMo Supp. 1982; and that such records are open to public inspection and duplication pursuant to Section 610.015, RSMo 1978, “[e]xcept as provided in section 610.025, and except as otherwise provided by law, . . ."
Section 610.025, RSMo Supp. 1982, states in relevant part:
3. [M]eetings relating to the hiring, firing, disciplining, or promotion of personnel of a public governmental body, all discussions between a governmental body and its representatives in preparation for negotiations, with employee groups, and all work product developed by the governmental body or its representatives in preparation for negotiations with employee groups may be a closed meeting, closed record, or closed vote.
4. Other meetings, records or votes as otherwise provided by law may be a closed meeting, closed record, or closed vote.
5. Before any meeting, record, or vote may be a closed meeting, closed record, or closed vote, the governmental body shall vote on the question of making the meeting, record, or vote closed and such question shall receive an affirmative public vote of a majority of the quorum of the body. The vote of each member on the question of holding the closed meeting, record, or vote and the reason for holding the closed meeting, record, or vote by reference to a specific reason under the provisions of this section shall be announced publicly at an open session and entered into the minutes. Notice of the closed meeting, record, or vote shall also be given as provided in section 610.020. A closed meeting, record, or vote shall be held only to the extent a closed meeting, record, or vote is necessary for the specific reason announced and the governmental body shall not discuss any business during a closed meeting, record, or vote which does not directly relate to the specific reason announced as justification for the closed meeting, record, or vote. [Emphasis added.]
In your opinion request you direct our attention to the aboveemphasized words in subsection 3 of this section and point out that this language expressly deals with personnel meetings and does not address personnel records. We have found no authority broadly construing this language as an exemption from the Sunshine Law for personnel records; however, in Wilson v. McNeal, 575 S.W.2d 802, 810 (Mo. App. 1978), the court stated:
Pulitzer asserts that § 610.025(4) pertains only to meetings relating to personnel matters. The language of the section is not as clear as it might be, but as Pulitzer admits in its brief, it is obvious that if a meeting is to be closed, the records of the meeting must also be closed, a conclusion with which it would be difficult to disagree. . . . [Emphasis in original.]
Under the Wilson case, records of a closed personnel meeting may be closed. For discussions of the scope of the personnel meetings exemption, see Hudson v. School District of Kansas City, 578 S.W. 2d 301 (Mo. App. 1979); State ex rel. Board of Public Utilities of the City of Springfield v. Crow, 592 S.W.2d 285 (Mo. App. 1979); and Opinion Letter No. 30-83, Luerding, 1983.
With regard to both of the relevant “otherwise provided by law" provisions-found both in Section 610.015, RSMo 1978, and in Section 610.025.4, RSMo Supp. 1982-you state in your opinion request that there is no general confidentiality statute applicable to DOR personnel records that would “otherwise provide for" these records, and independent research by this office tends to confirm this view. Cf. Section 36.420, RSMo 1978, and 1 CSR 20-1.050 (providing that records of the Personnel Division of the Office of Administration are open for public inspection, except examinations, service reports, personal histories, and such other records as may be specified by rule). Particular records in a personnel file may be confidential under applicable state or federal law, if such exist; however, such a determination would depend upon the particular facts involved, such as, the character of the record sought to be inspected or duplicated and the scope of the applicable particular confidentiality statute. An example of such a confidentiality law would be Section 32.057, RSMo Supp. 1982, which makes certain DOR tax information confidential. (You state in your opinion request that the personnel files may include tax histories.) This view is consistent with previous opinions of this office concluding that public employee salary records are open to public inspection, except to the extent such are confidential under state or federal law. Opinion No. 105, Carver, 1977; Opinion Letter No. 115, Sprick, 1979, copies enclosed. Cf. Annot., 100 A.L.R.3d 699 (1980) (surveying public employee payroll disclosure cases).
Therefore, we believe that under the Sunshine Law, personnel records that are retained by or are the property of the Missouri Department of Revenue are public records that are subject to public inspection and duplication, except to the extent such records are part of the records of a closed personnel meeting of the type considered in the Wilson case, such records are protected by a particular state or federal confieentiality law, or such records are exempt under some other provision of Section 610.025, RSMo Supp. 1982.
With regard to your second question, Section 32.050.3(2), RSMo 1978, and Section 12 of the Omnibus State Reorganization Act of 1974, App. B, RSMo 1978, grant the Director of Revenue the authority to hire DOR employees. Subsection 2(3) of Section 32.050 requires the Director of Revenue to decide questions of DOR policy. Therefore, the Director of Revenue is vested with the authority to determine DOR policy on this matter and may, consistent with our answer to your first question, establish policy regarding personnel records to the extent necessary to protect specific records as required by applicable state and federal law.
We believe our answer to your first question provides an answer for the remaining portions of your second question.
Your remaining questions inquire as to the liability of the Director of Revenue for actions taken with regard to personnel records. Because this office defends the State of Missouri and the Director of Revenue for acts done in his official capacity, we believe it is not in the best interest of the State of Missouri, the Department of Revenue or the Director of Revenue to discuss theories of liability in this opinion and, by so doing, potentially compromise our ability to provide such defense. We would be pleased to consult with you on an informal basis in this regard.
CONCLUSION
It is the opinion of this office that personnel records retained by or the property of the Missouri Department of Revenue are public records subject to public inspection and duplication, except to the extent such records are confidential under state or federal law, such records are exempt from the Sunshine Law under Wilson v. McNeal, 575 S.W.2d 802 (Mo. App. 1978), or such records are exempt from disclosure under the Sunshine Law pursuant to the exemptions in Section 610.025, RSMo Supp. 1982.
Very truly yours,
John Ashcroft
Attorney General
Footnote 1. In addition to the Sunshine Law, Sections 610.010 to 610.120, RSMo 1978 and Supp. 1982, this office is aware of at least two other sources of authority giving the public access to “public records". First, Sections 109.180 and 109.190, RSMo 1978, inter alia, grant access to certain state “records kept pursuant to statute or ordinance . . ..." Section 109.180, RSMo 1978. This office is unaware of any statutes or ordinances that require DOR to keep personnel records and files. If this is so, Sections 109.180 and 109.190, RSMo 1978, do not grant access to DOR personnel files.
Second, since the late nineteenth century, Missouri courts have recognized a common law right of public access to “public records". See, e.g., State ex rel. Kavanaugh v. Henderson, 350 Mo. 968, 169 S.W.2d 389 (1943) (liquor sale invoice information); State ex rel. Eggers v. Brown, 345 Mo. 430, 134 S.W.2d 28 (banc 1939) (motor vehicle registration ditto lists); State ex rel. Conran v. Williams, 96 Mo. 13, 8 S.W. 771 (1888) (voter records); State ex rel. Thomas v. Hoblitzelle, 85 Mo. 620 (1885) (voter records); and Disabled Police Veterans Club v. Long, 279 S.W.2d 220 (Mo. App. 1955) (disabled police records). The Disabled Police Veterans Club case declared that: “[P]ublic policy demands that some public records must be kept secret and free from common inspection. In certain situations public records may, in the public interest, be withheld from public inspection." 279 S.W.2d at 223. The question asked deals only with the Sunshine Law, so this office will not decide at this time whether personnel files are records of the type that will fall into the public policy exception to the common law right of access to public records. We merely mention these alternative rights of access for your information. 1983 WL 176875 (Mo.A.G.)