MORROW The city of Morrow’s response to an open records request has raised questions about how much information the public can obtain about government employees.
Clayton News Daily asked City Clerk Evyonne Browning last month for copies of any reports generated as the result of background checks performed on a former city employee. The request was made under Georgia’s Open Records Act because a reporter had a question about why city officials redacted the employee’s answer to a question about past felony convictions on his job application.
The application had previously been obtained by the News Daily through an open records request for the employee’s personnel file. After the request for the background check was filed, city leaders explained they redacted the answer in an abundance of caution in case disclosure might constitute a violation of state laws.
The employee consented to the release of an unredacted copy of the application, and the city then satisfied that records request.
The unredacted copy made available to the newspaper shows the answer to the felony question was “no.”
Browning said a criminal background check was the only background check conducted on the employee when he was hired. She said she could not provide that report because its release was prohibited under state law, and because disclosure would infringe on the employee’s “constitutional right to privacy.”
“This information is confidential and not subject to open record as defined by [Official Code of Georgia Annotated Section 50-18-70],” said Browning in her response.
Her response has attorneys debating whether the public can have access to a government employee’s background checks.
Georgia Press Association attorney David Hudson, who is considered an expert in Georgia’s open meetings and records laws, argued her interpretation is not correct.
Robert Quinn, an attorney for the city, argued that it is.
Hudson pointed to Official Code Georgia Annotated Section 50-18-72 (a)(7), which lists the circumstances when public disclosure of a public record is not required by law. That code section states disclosure is not necessary when the records are “confidential evaluation submitted to, or examinations prepared by, a government agency and prepared in connection with the appointment or hiring of a public officer or employee.”
But Hudson said that doesn’t give the city grounds to refuse to comply with the request for the background check report.
“Only outside confidential evaluations submitted to a government agency that are in a personnel record are exempt from disclosure,” Hudson said. “But there is nothing in the law that exempts a general ‘background check’ that an agency may have obtained in connection with a hiring decision.”
Quinn said Browning complied with the law, however. He pointed to state code Section 35-3-34, and argued the employee’s consent would be needed to release the report.
“The City did not provide the Georgia Crime Information Center report initially, because O.C.G.A. §35-3-34 provides that disclosure of GCIC criminal background information to private individuals or businesses is authorized only if at the time of the request the requesting party provides the fingerprints of the person whose records are requested or provide a signed consent of the person whose records are requested on a form prescribed by the center which shall include such person's full name, address, social security number, and date of birth,” said Quinn.
“The violation of this law is a misdemeanor,” he said.
Quinn also said Georgia case law offers employees some protection of their private information.
“The Courts have held that the public’s interest in the requested information must be balanced against the individual’s constitutional right to privacy,” Quinn said. “If the public has no legitimate articulable interest in the information, then the individual’s constitutional right to privacy must be upheld and the information should not be disclosed.”