SANTA CRUZ COUNTY
PERSONNEL ADMINISTRATIVE MANUAL
PERSONNEL FILE CONTENTS, ACCESS, REMOVAL/SEALING/EXPUNGING, RETENTION AND DESTRUCTION
PERSONNEL AND ADMINISTRATIVE RECORDS
Nov 15, 1990
Nov 18, 1992
Feb 16, 1993
To summarize laws, policies and procedures related to employee personnel file contents, access, removal/sealing/expunging, retention and destruction.
Civil Service Rule II.C.
Confidentiality and materials included in personnel files: Government Code Section 6254 (c); Government Code Section 3305; Middle Management Representation Unit MOU, Article 12.2; General Representation Unit MOU, Article 21.2; District Attorney's Representation Unit MOU, Article 12.2; Penal Code Sections 832.7 and 832.8.
Subpoena of personnel records: California Code of Civil Procedure Sections 1985.3 and 1985.4. California Penal Code Section 832.7. Evidence Code Section 1563.
Inspection by employees: Labor Code Section 1198.5; Government Code Section 31011.
Retention and Destruction: Government Code Section 12946; Government Code Section 6200; Government Code Section 26202.
Retention and Destruction of Fingerprints: California Penal Code 11105 &
13300. California Code of Regulations 708(c).
Altering, falsifying, removing or secreting materials in record: Government Code Section 6200.
Peace Officers of the County: Deputy Sheriff Trainee; Deputy Sheriff; Sheriff's Sergeant; Sheriff's Lieutenant; Sheriff's Chief Deputy; Sheriff-Coroner; District Attorney Inspector I and
II; Chief District Attorney Inspector; Deputy Probation Officer I, II and III; Probation Division Director; Chief Probation Officer; Welfare Fraud Investigator I and II; Chief Welfare Fraud Investigator.
- The official personnel file of each County is maintained in the County Personnel Department. It is the policy of the County Personnel Department, in accordance with State law and MOU provisions, that these records are confidential and that the privacy of employee records should be respected and preserved.
- Departmental Personnel Files
All of the policy provisions in C. immediately below, also apply to personnel files maintained by operating departments, with the exception of sub-section C.4., Retention and Destruction of Employee Personnel Files, where departmental personnel files must be retained for two years (and possibly three years under pending legislation) after termination of the employee from County service.
All of the procedural provisions under PROCEDURES, below, also apply to personnel files maintained by operating departments except, I., Removal and Return of Files (internal file maintenance description), and II.C. and E., Review of Files (internal file review responsibilities), which are peculiar to the Personnel Department. Operating departments should develop their own procedures in these areas.
- Personnel Files Maintained by the Personnel Department
There are specific statutory and policy provisions which apply to current and former employees' personnel files. These are outlined below as 1) Content, 2) Access, 3) Removal, sealing, or expunging of materials in files and 4) Retention and destruction.
- Contents of Employee Personnel Files
Outlined below are guidelines regarding materials which should and should not be included in an employee central or departmental personnel file. These guidelines are not intended to be exhaustive.
The following materials should not be included in an employee personnel file because they are not pertinent and different confidentiality provisions apply:
- medical records (except physicians' statements to support leave or return from leave)
- fingerprint checks/rap sheets NOTE: All fingerprint results must be destroyed within 30 days of the hiring, licensing, or certification decision.
- examination materials, including selection notes, background investigation materials, reference checks, and the like
- Personnel transactions and supporting documents (e.g. personnel/payroll transaction forms, requests for provisional appointments) for appointments, leaves of absence, step advancements, terminations range changes, name changes, address changes, and the like must be included in the employee's personnel file.
- All legally required documents must be included in the file (e.g. I-9 - INS Employment Eligibility Verification Form).
- Performance evaluations.
- Forms for certain payroll transactions completed by the Personnel Department under Memoranda of Understanding
or Personnel Regulations (e.g. dues authorization forms, bilingual pay authorization).
- Correspondence from the County or the employee's department regarding personnel actions should also be included in the personnel file (e.g. notification of provisional status, reprimands etc.) Normally, these should bear the employee's signature to verify that the employee received a copy of the correspondence.
- Departments MAY, if they so choose, also place other relevant material in an employee's personnel file (e.g. a commendation, certificates of training completed, or the like). Correspondence of this type should bear the employee's signature to verify receipt.
- A current employee MAY request that pertinent material be placed in his/her personnel file (e.g. a letter of commendation from a citizen). Requests must be approved by the department head and Personnel Director, as the purpose of the file is to maintain a record of County personnel activities related to the employee.
- Access for Employee Personnel Files
The contents of employee personnel files are confidential. Access to such files is specified below.
- Personnel Department staff
Access by Personnel Department staff to employee personnel files is on a "need to know" basis. Staff should only review material in employee personnel files as required to carry out their responsibilities.
- Current and Former Employees
- Current and former employees may review their personnel files in the County Personnel Department during business hours.
- Current employees may have copies made of materials from their files, with the first five pages copied at $.50 per page and $.10 for each additional page copied.
- Former employees may have copies of material from their personnel files, with the first five pages copied at $.50 per page and $.10 per page for each additional page copied.
- A former employee may also request copy of materials from their personnel file by mail, provided there is a written request with a signature, and pre-paid return postage. Payment of fees and charges as described above must be made in advance.
- Employee Representative
A representative (union agent or other person) may review an employee's personnel file, WITH written authorization from the employee which identifies the representative by name and with an ORIGINAL signature. Charges for copies are the same as those that apply in I.B.2.b.3. above.
- Persons in Employee's Current Chain of Command
The employee's immediate supervisor, the supervisor's superior(s) or the employee's appointing authority may review the employee's personnel file. (Persons not in the employee's current chain of command are NOT authorized to review the file.) The Personnel Director or Personnel Services Division Manager must authorize such a review.
- Law Enforcement and Security Background Investigation Requests
- A law enforcement (sheriff's office, police department, FBI...) or related agency (Department of Defense...) may review an employee's personnel file without a subpoena upon identification by the agency representative that s/he is a peace officer AND upon receipt of a signed authorization by the employee to release the information for a background investigation.
- A subpoena will be required from any law enforcement personnel to obtain access to a sealed record of the employee.
- Requests in Conjunction with Welfare Fraud/Family Support Investigations
- A welfare fraud investigator or district attorney investigator/inspector may review an employee's personnel file PROVIDED:
- a written memo is received from the investigator which cites the law which authorizes a review.
- the investigator identifies him/herself
- the review is limited to information in the file pertinent to the investigation.
- A copy of the authorization memo must be placed in the personnel file.
- Reviews of this type must be approved by the Personnel Director, Personnel Services Division Manager, or Employee Relations Manager.
- Grand Jury Auditor
With appropriate documentation, and with the approval of the Personnel Director, the auditor of the Grand Jury may be authorized to review specified employee personnel files to verify that certain information is included in the files and is accurate (e.g. appointment documents, I-9s, etc.).
- Agents of the County
If there is a claim, complaint or suit against the County, specific individuals acting as agents of the County (e.g. Workers' Compensation Claims Officer, Equal Employment Opportunity Officer..) may have access to an employee's personnel file for the performance of their duty as an agent of the County, with the approval of the Personnel Director or his/her designee.
- All Other Requests
Any other request for access to or copies from an employee's personnel file will require a duly authorized subpoena. The only exception that may be authorized by the Personnel Director is for law enforcement personnel to obtain specific, limited information (e.g. employee's home address, next of kin, emergency contact information) when necessary (e.g. employee has disappeared, been kidnapped).
- Subpoena (including Grand Jury, excluding workers compensation proceedings, Dept of Industrial Relations proceedings or peace officer records.)
- ANY subpoena (including grand jury subpoena) or court order for production of materials of the personnel file of a current employee who is a peace officer or of a former employee who was a peace officer when s/he terminated, MUST be referred to County Counsel. Classifications of peace officers in Santa Cruz County are listed in the Legal Basis section above.
- The specific requirements in honoring and processing a subpoena for non-peace officer personnel records are:
- The subpoena is to indicate on its face that it is brought pursuant to Section 1985.3;
- The date specified in the subpoena for the production of the records is not less that 15 days from the date the subpoena is issued;
- The subpoena is received not less than 10 days prior to the date for production if personally served or 15 days from the date of mailing that the subpoena;
- The subpoena is accompanied by an affidavit specifying the records sought and the reasons why they are requested;
- The subpoena is also accompanied by a notice indicating in bold type (1) that employee records are being sought by the person named on the subpoena; (2) if the employee objects to the furnishing of records by the subpoenaing party, the employee must file papers with the court prior to the date specified on the subpoena for production of the records, and (3) if the subpoenaing party will not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the employee's interest in protecting his or her rights to privacy; and
- The subpoena shall contain a proof of service showing that all of these documents have been served upon the employee unless a written authorization to release the records signed by the employee or his/her attorney is presented to the County.
- Duly authorized subpoenas will be responded to that are directed to the Personnel Department if the form of the subpoena is as listed in 2. above. Any questions regarding whether the subpoena meets legal requirements should be direct to County Counsel. The Personnel Department will notify the employee immediately, and will not provide the requested information until 10 days have passed from the date of the employee notice. The party requesting the subpoena should be notified immediately of the cost of production and that the costs are due at the time the records are produced. The cost of reproduction as established by Evidence Code Section 1563 is $.10 per page for standard documents; $.20 per page for microfilm; actual cost for the reproduction of oversized documents; reasonable clerical costs in locating and making the records available at the maximum rate of $16.00 per hour per person to be billed in minimum quarter hour increments; actual postage charges and actual costs of retrieval charge by a third party (i.e., storage company).
- Should the subpoena request other information (e.g. payroll data, workers' compensation records), it should be returned to the sender who should be notified that the Personnel Department does not maintain such records. If it is known which department maintains such records, this information should also be included in the letter returning the subpoena. Should the subpoena request information from the personnel file plus additional information (e.g. payroll records, etc.), copies from the personnel file will be provided. A separate subpoena directed to the appropriate department is needed for information not included in the personnel file.
- If an operating department receives a subpoena directed to THAT department for the personnel file, that department should respond based on the DEPARTMENTAL personnel file. The Department should contact County Counsel with any questions regarding compliance with the subpoena.
- Removal, Sealing, Expunging of Material in Personnel Files
- State law (Government Code Section 6200) provides that NO material may be removed or destroyed from an employee personnel file, and provides both criminal and civil penalties should this occur.
- Accordingly, and notwithstanding any agreement by an
employee and a department, materials may not be removed or expunged from an employee's personnel file.
- Materials in the personnel file may be sealed, provided
that all of the following conditions are met:
- The employee and his/her department head must
agree in writing to the sealing.
- The Personnel Director approves sealing of the
material in question.
- Any sealed material shall not be accessible except
that it may be opened by the County should a complaint, claim or suit be filed against the County to which the sealed material may be pertinent.
- Sealed material could be accessed by subpoena depending
upon the specific circumstances, as determined by County Counsel on a case-by-case basis.
- Retention and Destruction of Employee Personnel Files
- Pursuant to Board action, the personnel files maintained by the Personnel Department shall be retained for nine years after the termination of the employee from County service and then may be destroyed.
- Personnel files maintained by operating departments
must be retained under current (8/90) law for two years after termination of the employee from County service. However, State legislation is now pending that would require a three year retention period. Operating departments should check with Personnel regarding any change in the law.
- When employees move to a different department, it is
recommended that the employee's former department forward the employee file to the new department. This will help ensure that a file is not destroyed until the required period has passed.
PROCEDURE (PERSONNEL DEPARTMENT):
- Removal and Return of Files
When any personnel file is removed from the files, an out card must be completed and used. When the file is to be returned, it should be placed in the filing box of the Records Unit, and not returned to the file.
- Review of Files
- All persons, unless specifically known by staff, requesting review of an employee personnel file, must present picture identification.
- A Records Unit or management employee must be present when ANY non-staff member reviews an employee personnel file to ensure that nothing is removed, altered or added.
- The Personnel Department staff member must ensure that the review log is completed, and that a "review sheet" is in the file and completed in full.
- When the person reviewing the file needs an authorization or release for review of the file, a copy of the release or authorization must be placed in the personnel file. (See policy section regarding when a(n) release or authorization is required).
- The staff member to contact for authorization or question by the type of review is as follows:
- Current or former employees: Records Unit or ESD Manager
- Employee representative: Records Unit or ESD Manager
- Person in employee's chain of command: ESD Manager or
- Law enforcement or security background investigator: ESD
Manager or Personnel Director
- Welfare Fraud/Family Support Investigator: ESD Manager or
- Grand Jury Auditor: Personnel Director
- Agent of the County: Personnel Director, ESD Manager, or
Employee Relations Manager
- All other requests: Personnel Director
- Subpoena: Department Secretary, ESD Manager or Employee
Relations Manager (who will refer to County Counsel if for the file of a peace officer)
- All fees and charges for subpoena and photocopies shall be given
to the accounts payable clerk, with notation of the source/purpose.
- Sealing, Expunging, Destruction of Personnel Files
All inquiries regarding sealing, expunging, or destruction of employee personnel files shall be referred to the Personnel Director.