Performance Evaluations of All Public Employees Are Now Prohibited from Disclosure Under FOIA

On December 1, 2010, the Illinois legislature overrode an amendatory veto and enacted into law House Bill 5154, which prohibits public access to performance evaluations.The new law provides, “disclosure of performance evaluations under the Freedom of Information Act shall be prohibited.”The bill had passed both houses in April and added the preceding language to the Personnel Record Review Act, rendering all public employees’ evaluations off-limits in response to FOIA requests.At the urging of the press and government watchdog groups, however, the Governor amendatorily vetoed the bill and attempted to limit its application to State and local police officers’ evaluations, citing a need to allow the recent FOIA overhaul to be given time to work without significant amendments.Now, the legislature has overridden the Governor’s amendatory veto (by margins of 77-36 in the House and 48-3 in the Senate), making House Bill 5154 into law as it originally passed both houses.    

As a result of this new legislation, school districts (and all other public bodies as well) are required to withhold ALL public employee evaluations in response to FOIA requests—not merely evaluations of teachers, principals and superintendents (which have been prohibited from disclosure under the School Code since January of this year).The new law simplifies responding to FOIA requests for employee evaluations, which until now have been subject to a number of potentially available exemptions, some of which were frequently rejected by the Public Access Counselor’s office.Now the law is clear that all FOIA requests for public employee evaluations may be denied by citing to FOIA exemption 7.5(q) and Section 11 of the Personnel Record Review Act.Disclosure of a public employee’s performance evaluation in response to a FOIA request could now result in the employee’s filing a complaint with the Illinois Department of Labor.If you have any questions regarding this law or regarding FOIA in general, please contact Steve Richart or Heather Brickman.