Can a trade association get a list of which state nursing-home surveyors passed or failed the federal qualification test, or is that confidential personnel information?

Plain-English summary

The North Carolina Health Care Facilities Association asked the Department of Human Resources (DHR) to disclose the results of a federal qualification test that the Health Care Financing Administration (HCFA) gave to DHR employees who serve on long-term-care survey teams. The test came out of the Nursing Home Reform Act, which requires individual survey-team members to meet HCFA-set minimum qualifications and to pass a training-and-testing program. HCFA, not DHR, administered and scored the test. The only document DHR held was a list HCFA sent showing which DHR employees passed or failed.

The Secretary asked the AG whether the list had to be released under the Public Records Act, N.C.G.S. § 132-1 and § 132-6, or whether the personnel-file exception in N.C.G.S. § 126-22 kept it confidential.

The AG concluded the list is confidential personnel information that may not be released.

The reasoning runs in three steps:

1. The list is a public record under § 132-1. Public records include all documents made or received pursuant to law by a state agency in connection with the transaction of public business. The HCFA test list was received pursuant to a federal-law requirement that team members pass the test in order to continue in the role, so it fits the public-record definition.

2. But § 126-22 takes personnel files out of the inspection requirement. The personnel-file definition is broad: it includes "any information gathered by the . . . agency . . . which employs an individual . . . and which information relates to the individual's application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions and termination of employment wherever located and in whatever form."

3. The list relates to selection, performance evaluation, and potential termination. The State Personnel Manual says that when duties may be performed only by licensed, registered, or certified employees, those employees are responsible for maintaining their credentials and may be dismissed for failing to do so. Because survey-team members can be removed from the team for failing the test, the list relates to one or more personnel-file categories. So the personnel-file exemption applies and the list is confidential under § 132-6.

The opinion did not stop at "no." The AG suggested two ways DHR could accommodate the Association's underlying interest:

• Help them get the test from HCFA. The test instrument itself, separate from individual results, is what would let the Association understand what surveyors are being tested on. HCFA is the source, but DHR can facilitate the request.
• Release the aggregate percentages. The Association also wanted to know "how surveyors fared in the process." DHR can compile and publish the percentages of surveyors who passed each of the two parts of the test without identifying any individual employee. That gives the Association the substantive answer to its question without disclosing personnel information.

The opinion is a useful illustration of how the personnel-file exemption interacts with broader public-records concerns. It is broad on what counts as personnel information (anything that could lead to selection, promotion, or termination consequences) but the AG also showed the standard workaround: aggregate, anonymized data does not run into the same problem.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

North Carolina's personnel-records statute has been amended multiple times since 1993, including changes that opened up more types of disciplinary information for disclosure. The Public Records Act has also been updated, and the State Personnel Act was repealed and replaced with the State Human Resources Act. Anyone making or responding to a similar request today should consult the current Chapter 126 (or the State Human Resources Act in Article 13 of Chapter 126), the current Chapter 132, and any guidance from the Office of State Human Resources and the Department of Justice's Public Records Unit.

Common questions

Q: I'm a journalist or trade-group researcher. Can I ever get test results for state employees?
A: At the time of the opinion, no, not the individual results. The AG was firm that pass/fail data tied to identifiable employees is personnel information. But aggregate data, anonymized to protect the individual, is generally releasable. The test instrument itself (which would let you evaluate how rigorous the qualifying process is) is a separate question, and the source agency may release it on a public-records request.

Q: What if I want to know whether my state surveyor is actually qualified?
A: The opinion did not address that scenario directly, but the State Personnel Manual provision the AG cited implies the agency must remove an employee who loses required credentials. So the structural answer is that anyone in the role has either passed or been given time to do so. If you suspect an unqualified surveyor is still on the team, the better path is a complaint to the Division responsible for survey-team oversight rather than a public-records request.

Q: How is this different from a teacher licensure status, which seems to be public?
A: Different statutes treat different licensure categories differently. Teacher licensure status is generally treated as a public matter because the licensure is a credential the public is entitled to verify. The HCFA test in this opinion was an internal federal-qualification screen for state employees, not a separately public-facing license. The personnel-file exemption applied because the result was held in the context of employment and could lead to termination.

Q: Can DHR voluntarily release this information if the employee agrees?
A: The opinion did not address that. Generally, an employee can consent to disclosure of his own personnel information, but agency policy and labor-relations considerations come into play. The opinion answers what DHR is required (and forbidden) to do under the open-records law; voluntary disclosures with employee consent are a separate question.

Background and statutory framework

The North Carolina Public Records Act, N.C.G.S. § 132-1 through § 132-10, presumes that documents made or received by state agencies in connection with public business are open to inspection. The presumption is strong. But the Act has carve-outs, and personnel files are one of the most important.

N.C.G.S. § 126-22 (part of the State Personnel Act) makes personnel files confidential and exempts them from § 132-6's inspection requirement. The statute defines "personnel file" expansively: it includes any information related to application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions, and termination of employment. The AG's analysis focuses on which of those categories a particular document fits. Here, the HCFA test result mapped onto selection (for continued team membership), performance evaluation, and potential termination.

The State Personnel Manual filled in the credentialing logic. When a position can only be filled by a licensed, registered, or certified employee, the loss of that credential is a basis for dismissal. The HCFA test was effectively a credential requirement, so the list mapped directly onto personnel-action consequences.

The AG's suggestion that DHR release aggregate percentages is consistent with how North Carolina has handled the tension between transparency and personnel confidentiality in many other contexts. The personnel-file exemption protects the identification of the individual; it does not protect data that has been stripped of identifiers. Releasing the percentage of surveyors who passed each part of the test serves the public interest in understanding how the survey-team certification program is working without disclosing any one person's performance.

Citations

• N.C.G.S. § 126-22 (personnel-file confidentiality and exemption from § 132-6)
• N.C.G.S. § 132-1 (definition of public records)
• N.C.G.S. § 132-6 (right of inspection and examination)
• State Personnel Manual, Section 9, page 8.0 (employee responsibility for maintaining required credentials)
• Nursing Home Reform Act (federal requirement that long-term care survey-team members meet HCFA qualifications and pass HCFA testing)

Source

• Landing page: https://ncdoj.gov/opinions/public-records-request-for-release-of-individual-test-results/

Original opinion text

September 9, 1993

C. Robin Britt, Sr., Secretary
Department of Human Resources
Post Office Box 29526
Raleigh, North Carolina 27626-0526

RE: Advisory Opinion; Public Records; Personnel Files; Nursing Home Reform Act; Long Term Survey Team Tests; Request for Release of Individual Test Results; G.S. 132-1; G.S. 132-6; G.S. 126-22

Dear Secretary Britt:

You have asked for our opinion regarding a request for disclosure of documents pursuant to G.S. 132-1 and 6. Specifically, the North Carolina Health Care Facilities Association has requested access to the Surveyor Minimum Qualification Testing results which the Department of Human Resources recently received from the Health Care Financing Administration (HCFA) of the Department of Health and Human Services (HHS). HCFA administered the test to all State survey agency directors pursuant to the Nursing Home Reform Act, which requires that individual members of long term care survey teams meet minimum qualifications established by the Secretary of HHS and successfully complete a training and testing program in survey and certification techniques. Since HCFA administered and scored the tests, the only document DHR has which comes within the Association's request is the list it received from HCFA indicating which DHR employees passed or failed the test.

As we understand the relevant facts, future applicants for membership on a survey team will be required to show that they have passed the HCFA test as a prerequisite to team membership. However, the current team members were serving on teams before the HCFA test was required. The law does not exempt them from passing the test but does allow them a yet undetermined period of time to do so. Meanwhile they can continue serving on the teams.

G.S. 132-1 defines public records to include all documents made or received pursuant to law in connection with the transaction of public business by a State agency. G.S. 132-6 provides that public records are subject to inspection and examination. G.S. 126-22 excludes personnel files from the inspection and examination requirements of G.S. 132-6. Personnel files include "any information gathered by the . . . agency . . . which employs an individual . . . and which information relates to the individual's application, selection or non-selection, promotions, demotions, transfers, leave, salary, suspension, performance evaluation forms, disciplinary actions and termination of employment wherever located and in whatever form . . . ." G.S. 126-22.

The State Personnel Manual provides that when duties assigned to a position may be performed only by persons who are licensed, registered or certified, employees in those positions are responsible for maintaining the required credentials and may be dismissed for failure to do so. State Personnel Manual, Section 9, page 8.0. Since federal law requires that survey team members must pass a test administered by HCFA in order to continue doing their jobs, the list indicating which DHR survey team members have passed or failed the test is a document received by the agency in connection with the transaction of the public business. However, since an employee may ultimately be removed from the survey team if he does not pass the test, the list also relates to one or more of the items enumerated in G.S. 126-22. We conclude, therefore, that the list is confidential personnel information which may not be released pursuant to G.S. 132-6.

In its letter, the Association indicates that its interest in making this request stems from its desire to understand the tool which HCFA used to test surveyors and to know how surveyors fared in the process. Even though we have concluded that the actual list DHR received from HCFA is confidential personnel information which may not be released, it nevertheless may be possible for you to accommodate the Association's interest by helping them to obtain a copy of the test from HCFA and by compiling and releasing to them the percentages of surveyors who passed the two separate parts of the HCFA test.

If we can assist you further or if you have any additional questions, please do not hesitate to contact me.

Ann Reed
Senior Deputy Attorney General