A public record is any document or group of documents (a file, for instance) which has been used, prepared, processed or retained for use in the performance of any business or function performed under the authority of the Constitution or laws of this state, unless excepted in the "public records law" or the Constitution of the state. This includes any reproduction of these documents.

Two legal concepts come into play when determining if a public record (or a part of it) contains public or confidential information under law. On one hand, a Human Resources Office must be aware of the Louisiana Public Records Act (RS 44:1-427), while on the other it must weigh the employee’s expectation of privacy that is protected by the United States Constitution.

Not all PUBLIC RECORDS contain PUBLIC INFORMATION. Some information is confidential. Some records are either entirely public or entirely confidential as a whole; still other records are public information, but contain bits or pieces of confidential information (a common example of a confidential piece of information within a public record would be an employee’s social security number).

Confidential or private information is established either through an exception in the public records laws, or as a result of a court decision. Information that can remain confidential includes that information for which an individual has a reasonable expectation of privacy that society is willing to uphold. Some examples of these are on the attached list.

"Confidential" information should be protected from public access, but it is not necessary to withhold this information from entities or persons within government who have a need to know based on business-related reasons for the inquiry. It will be necessary for the agency to make a judgment call regarding these requests.

We have reproduced, from the "Documentation Requirements" information in the HR Handbook on our website, a list of items that are typically maintained in a Human Resources Office. We have listed those items that are public information, and we have included a list of those items that are considered confidential. Similar information exists in General Circular 1407, issued September 21, 2000.

A public entity is required to respond to a request for information within 72 hours. If the record requested is not in "active use", the record must be produced immediately. The only information that must be produced is that which is public information. If a document is a public information document, but it contains a piece of confidential information, care should be taken to obliterate the confidential information on the copy of the document which is produced in response to the public record request.

We recommend that an agency have some sort of written policy regarding its response to requests for personnel records or other public documents. A good policy regarding such requests might include elements such as:

1. The name of the person who will review the request and initiate the response to all requests (custodian of the record) and an authorized "back-up" for that person. Note: It is recommended that this individual have some training on the identification of public records vs. confidential information, and also that this individual have reasonable access to legal counsel when necessary for those items which require a judgment call.
2. The location(s) of the "official" record (as opposed to files that are maintained locally or by supervisors, which may or may not contain all information). Some official records may be maintained "locally"; while others may be maintained in a central location. This should be made clear.
3. A requirement that the request for information be provided to the agency in writing.
4. An assurance that a response will be given within 72 hours.
5. A provision that copies will be provided (and certified as true copies of the original, when necessary), rather than originals.
6. A practice or procedure for obliterating confidential information on the copies.

We recommend that agencies maintain personnel documents which contain only confidential information separately from the "public" personnel documents of employees. One folder with separate, labeled compartments is adequate for this purpose, EXCEPT: medical records of any type and I-9 forms. Medical records and the I-9 forms must be maintained in locked files which are entirely separate from other documents.

For our purposes, a personnel document that is a public record but which includes some data that is confidential (and would be obliterated if officially requested) should be kept in the "public" portion of an employee’s personnel record, unless an agency has, by written policy, established a different arrangement due to compelling business reasons.

Also for our purposes, a personnel document (including payroll documents) that is a public record but which contains only confidential information, should be kept in the "confidential" or "private" portion of an employee’s personnel record.

The following list is by no means definitive, but contains some state and federal laws and guidelines, familiar to Human Resource Offices, which touch on the "privacy" of specific types of records or information:

• Americans with Disabilities Act
• Family and Medical Leave Act
• Health Insurance Portability and Accountability Act (HIPAA) Guidelines (www.hhs.gov/ocr/hipaa)
• Louisiana Drug Testing (RS 49:1001-1021)

The following information has been issued by this Department to try to clarify/discuss the effect of laws/guidelines/court cases which affect Human Resources activities and records. These items were issued by Robert Boland, General Counsel for the Department of Civil Service.

• Newsletter dated August 7, 1996 (Right to Privacy in the Workplace)
• Newsletter dated January 28, 1998 (ADA; Public Records)
• Newsletter dated October 5, 2001 (Gathering Health Information on our Employees, including HIPAA Privacy Regulations)
• DSCS General Circular 1407 issued September 21, 2000, entitled "Records Maintained by State Agencies"

Below is some information you might find helpful:

• "Custodian" means the public official or head of any public body having custody of or control of a public record, or a representative specifically authorized by him to respond to requests to inspect any such public records" [LRS 44:1A(3)]
• "The burden of proving that a public record is not subject to inspection, copying or reproduction shall rest with the custodian" [LRS 44:31B(2)]
• "If any record contains material which is not a public record, the custodian may separate the nonpublic record and make the public record available for examination" [LRS44:32B]

Personnel records, whether public or confidential, are usually grouped into four main files: personnel folders, medical files, payroll files, and Employment Verification Form (I-9) files. Personnel folders and medical files should be maintained indefinitely for current employees and for employees who separated from an agency after October 1, 2000. This is currently the stance of the Archives and Records Management Division of the Department of State, whose responsibility is to approve formal retention schedules for records.

I-9 files retention guidelines are as follows: "Retain the Form I-9 for 3 years after the date the person begins work or 1 year after the person’s employment is terminated, whichever is later…." [U. S. Department of Justice, Immigration and Naturalization Service, Handbook for Employers (M-274), revised 11/21/91]

Payroll related records should be maintained for at least 5 calendar years. Agencies are encouraged to review exceptions in existing law or regulations, as well as any federal grant requirements to ensure that any applicable laws, regulations, or grants do not require longer retention periods.

CAUTION! Do not destroy any documents, files, or records without the approval of the Archives and Records Management Division of the Department of State. Request approval to destroy records using form SS ARC 930, Request for Authority to Dispose of Records, which can be found on the internet at the following link: www.sec.state.la.us/archives/records/f-ar930.pdf.

Please note: Because of the sheer variety of records and the ways in which those records are used or maintained, we cannot provide an all-inclusive list of public vs. confidential information. Questions regarding specific documents or pieces of information should be directed to your attorney.