When a state department surveys its employees about workplace conditions, are the questionnaires, answer sheets, and written comments public records, or are they confidential personnel records?
Plain-English summary
The NC Department of Administration conducted an employee survey: a questionnaire, demographic answer sheets, and written comment sheets. When someone requested the materials under the Public Records Act, DOA's R. Glen Peterson asked the AG whether the documents were public records or confidential personnel files.
The AG's answer is structured: public records by default, with redaction allowed where specific parts relate to identifiable employees' personnel matters.
Step 1: The survey is a public record. G.S. 132-1 defines public records as "all documents...made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions." The questionnaire, answer sheets, and comment sheets were produced by DOA (a state agency) in connection with its business (employee management). They fit the definition. G.S. 132-6 requires custodians to permit inspection of public records.
Step 2: The state employee personnel exception is real but narrow. Article 7 of Chapter 126 is the main exception. G.S. 126-22 makes confidential any information gathered by an agency that relates to a specific employee's "application, selection or nonselection, promotion, demotion, transfer, leave, salary, suspension, performance evaluation form, disciplinary action and termination of employment." G.S. 126-24 and 126-27 prohibit release of that information except for limited "directory" information (name, title, etc.).
Step 3: Application requires examining the survey content. The AG had looked at the survey forms in question. The answer sheets and comment sheets did not appear, on their face, to contain confidential personnel information about identifiable employees. But the AG noted two layers of uncertainty: the purpose of the survey and how DOA would use the responses might create personnel-related connections, and the demographic fields could allow a diligent researcher to identify specific employees in a small agency.
Step 4: The rule for borderline cases. If DOA had a reasonable basis to conclude that specific parts of the answer sheets or comments related to the promotion, demotion, discipline, or performance of personally identifiable DOA employees, DOA could redact those specific parts. If no such basis existed, the unredacted documents had to be produced.
The principle. The Public Records Act is the default; specific statutory exemptions are read narrowly. News and Observer Publishing Co. v. Poole (1992) is the controlling NC case for the proposition that documents falling within the public-records definition must be disclosed unless a clear statutory exception applies. The survey responses are public unless someone can show specific parts trigger a specific exception.
The opinion's practical effect: state agency employee surveys are generally disclosable. The agency carries the burden of identifying specific parts that qualify for redaction, and the agency must articulate a reasonable basis for each redaction decision.
Currency note
This opinion was issued in 1999. 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.
Chapter 126 has been amended several times since 1999, including substantial reforms to the State Personnel Act (now the State Human Resources Act). Some categories of personnel information have been moved between the public-record and confidential columns. The basic framework (Public Records Act default plus narrow personnel exemption) has remained stable, but the specific categories have shifted. Anyone analyzing a current employee-survey request should pull the current text of Article 7 of Chapter 126 and check for recent changes affecting performance, discipline, or compensation data.
Common questions
Q: Why isn't all employee information automatically confidential?
A: Because the Public Records Act is the default rule, and exceptions are construed narrowly. State employment is a public trust funded by taxpayers, and information about state agencies' operations (including how they treat their workforce) is presumptively public. The legislature has carved out specific personnel categories where the privacy interest outweighs the public interest, but the carve-out is not blanket coverage of "everything about employees."
Q: What counts as "directory information" that can be disclosed?
A: Name, position title, position description, current and former position information, salary, department, employment date, qualifications, and certain other categories listed in G.S. 126-23. These are not confidential and are disclosable.
Q: Could an employee who answered the survey object to disclosure?
A: They could object, but their objection would have weight only to the extent their specific responses fit the Chapter 126 exemption. An employee comment about general working conditions is not protected. An employee comment that names a specific supervisor and alleges performance issues might be protected on the supervisor's side (G.S. 126-22 personnel exemption) but probably still discloses as to the writer.
Q: Can the agency redact responses that identify a specific employee even if the response itself is generic?
A: The AG's framework would say yes, if the identification creates a personnel-related link. For example, if a respondent's demographic information makes them identifiable as the only African-American female manager in the Division, and their comment expresses dissatisfaction with their promotion path, the response is functionally personnel information about a specific identifiable employee and can be redacted.
Q: What about employees who were promised anonymity when responding?
A: The agency's promise of confidentiality cannot override a statutory disclosure obligation. The Public Records Act trumps an internal agency promise. The agency can be more careful in future survey design (collect less demographic data, allow truly anonymous responses) to protect against this disclosure path.
Q: Does the NC press regularly request this kind of material?
A: Yes. NC newspapers and watchdog organizations file periodic public-records requests for state-agency internal surveys, communications, and policy memos. The framework set out in this opinion (and reinforced by News and Observer Publishing Co. v. Poole) generally produces broad disclosure.
Background and statutory framework
NC's Public Records Act, codified in Chapter 132, is among the most pro-disclosure public-records statutes in the U.S. The Act's definition of "public records" is broad: any documentary material made or received by a state agency in connection with public business. The presumption is disclosure; exceptions must be specifically enacted.
The state employee personnel exception in Article 7 of Chapter 126 is the largest categorical exemption from the Public Records Act for state agencies. The legislature chose to make state employees' personnel files mostly confidential while making other agency operational records broadly public. The trade-off reflects competing values: employee privacy versus public accountability. Each side wins some battles.
DOA in 1998-1999 conducted internal surveys of its workforce as part of its broader human-resources management. The surveys were a common HR practice but produced documents that fell into the gray area: clearly agency records (Chapter 132 default disclosure) but containing some employee-specific content (Chapter 126 exemption). The 1999 AG opinion gave DOA (and by analogy other agencies) a workable framework for handling requests.
The opinion's structure (default disclosure plus specific-part redaction) has become the standard NC approach for mixed-content agency documents. Most subsequent opinions and court decisions about employee surveys, performance reviews, and HR data follow the same framework.
Citations
- N.C. Gen. Stat. § 132-1 (definition of public records)
- N.C. Gen. Stat. § 132-6 (right of inspection)
- N.C. Gen. Stat. ch. 126, art. 7 (state employee personnel privacy)
- N.C. Gen. Stat. § 126-22 (personnel file confidentiality)
- N.C. Gen. Stat. § 126-24 (limited directory information disclosure)
- N.C. Gen. Stat. § 126-27 (limits on release of personnel information)
- News and Observer Publishing Co. v. Poole, 330 N.C. 465 (1992)
Source
- Landing page: https://ncdoj.gov/opinions/confidentiality-of-department-of-administration-document-relating-to-survey/
Original opinion text
[Caption and salutation as scraped from the NCDOJ landing page.]
N.C.G.S. § 132-1 defines public records as follows: 'Public record' or 'public records' shall mean all documents, papers, letters, maps, books, photographs, films, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions.
N.C.G.S. § 132-6 provides, in part:
Every custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as promptly as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.
It is clear from these statutes that the questionnaire, answer sheets and comment sheets generated by DOA as part of the employee survey are public records since they were produced by an agency of the State in connection with the business of that agency. In the absence of a clear statutory exemption or exception, documents falling within the definition of "public records" must be made available for public inspection. See, News and Observer Publishing Co. v. Poole, 330 N.C. 465 (1992).
Article 7 of Chapter 126 — Privacy of State Employee Personnel Records
The personnel files of State employees constitute one of the principal exceptions to the Public Records Law. Pursuant to N.C.G.S. § 126-22, information gathered by DOA that relates to an employee's "application, selection or nonselection, promotion, demotion, transfer, leave, salary, suspension, performance evaluation form, disciplinary action and termination of employment wherever located and in whatever form" is not a public record. The release of such information to the public, except for certain "directory" information (name, title, etc.), is prohibited. N.C.G.S. §§ 126-24 and 27.
DISCUSSION
Except to the extent some parts of the questionnaire, answer sheets and comment sheets generated as part of this survey can reasonably be said to relate to the selection, promotion, demotion, discipline, or performance of an identifiable DOA employee within the meaning of N.C.G.S. § 126-22, these documents are plainly public records. The answer sheets and comment sheets we have examined do not appear to contain any information which would be confidential personnel information within the meaning of N.C.G.S. § 126-22. However, we do not have sufficient information about the purpose for which the survey was conducted or the use DOA intends to make of the information in the survey responses to make that determination. Likewise, we do not have sufficient knowledge of DOA's structure or organization to determine whether the demographic information contained in the answer sheets could allow a diligent researcher to identify the DOA employee who prepared a particular answer sheet or comment sheet.
In sum, the questionnaire, answer sheets and comment sheets are public records which members of the public are entitled to examine and copy. If DOA has a reasonable basis for concluding that specific parts of the answer sheets and comment sheets are related to the promotion, demotion, discipline or performance of personally identifiable DOA employees, you may redact that specific part from the documents. If there is no reasonable basis for reaching that conclusion, the unredacted documents are public records.
If you have any further questions, please advise.
Very truly yours,
Andrew A. Vanore, Jr.
General Counsel
AAVjr/jt
Mr. R. Glen Peterson
January 12, 1999