Next, we discuss records related to agency employees. Section 708(b)(7) protects certain records related to employees’ information. Chief Counsel Kyle Applegate provided the legal analysis for this exemption.  As of June 7, 2024, this exemption has been cited in 584 OOR appeals.  

Section 708(b)(7) exempts “the following records relating to an agency employee:

• A letter of reference or recommendation pertaining to the character or qualifications of an identifiable individual, unless it was prepared in relation to the appointment of an individual to fill a vacancy in an elected office or an appointed office requiring Senate confirmation.
• A performance rating or review.
• The result of a civil service or similar test administered by a Commonwealth agency, legislative agency or judicial agency. The result of a civil service or similar test administered by a local agency shall not be disclosed if restricted by a collective bargaining agreement. Only test scores of individuals who obtained a passing score on a test administered by a local agency may be disclosed.
• The employment application of an individual who is not hired by the agency.
• Workplace support services program information.
• Written criticisms of an employee.
• Grievance material, including documents related to discrimination or sexual harassment.
• Information regarding discipline, demotion or discharge contained in a personnel file. This subparagraph shall not apply to the final action of an agency that results in demotion or discharge.
• An academic transcript.”

The specific types of records exempt in this clause are plainly worded and fairly specific. Critically, this is not a blanket exemption that applies to all personnel-related records.[1]  The exemption also does not protect entire personnel files.[2]

One often-cited part of the case law on this exemption centers around the public nature of the “final action of the agency that results in demotion or discharge”:

• The act of demoting or discharging an employee is public; the circumstances behind that decision are not. For example, an agency may redact the reasons for the termination of an employee but may not redact but not the name, date and nature of the separation (i.e., termination or resignation).[3]
• An employee resignation letter is not covered by the exception because a voluntary choice to leave employment does not constitute a “discharge”.[4]
• Employee discharges pending arbitration are not final actions until that process has concluded.[5]
• Records reflecting the financial impact of a personnel action are public records. Settlement agreements[6] and severance payments[7] are public. 

Other case law reaffirms that records reflecting potentially negative information about an employee are expressly exempt:

• Employee discipline records in a personnel file.[8]
• Written criticism of an employee made by an agency.[9]
• Employee performance reviews of agency employees.[10]
• Grievance material related to an individual employee, but not a general labor dispute under a collective bargaining agreement. [11]

In addition, many records related to applications for employment to an agency are exempt:

• Applications of individuals not hired by an agency, including those applicants’ names, are exempt records.[12] Notably, the Commonwealth Court found that this exemption does not apply to applications for a gubernatorial appointment to a judicial vacancy, because the individuals that applied were not agency employees and not hired by the agency.[13]
• Names of references in employment applications.[14]

---

[1] Krug v. Bloomsburg Univ. of Pa., OOR Dkt. AP 2018-1600, 2018 PA O.O.R.D. LEXIS 1442; Hummel v. Union Sch. Dist., OOR Dkt. AP 2018-1550, 2018 PA O.O.R.D. LEXIS 1197.

[2] Friend v. Chester City, OOR Dkt. AP 2023-1354, 2023 PA O.O.R.D. LEXIS 1928.

[3] Silver v. Borough of Wilkinsburg, 58 A.3d 125, 129 (Pa. Commw. Ct. 2012).

[4] Fruchter v. Borough of Malvern, 303 A.3d 530, 537-38 (Pa. Commw. Ct. 2023); Brown v. Penncrest Sch. Dist., OOR Dkt. AP 2023-2058, 2024 PA O.O.R.D. LEXIS 343.

[5] In re Melamed, 287 A.3d 491 (Pa. Commw. Ct. 2022).

[6] Newspaper Holdings, Inc. v. New Castle Area Sch. Dist., 911 A.2d 644 (Pa. Commw. Ct. 2006).

[7] Allegheny County Airport Auth. v. Belko, No. 117 C.D. 2023, 2023 Pa. Commw. Unpub. LEXIS 520 (Pa. Commw. Ct. 2023).

[8] Jones v. City of York Police Dep’t, OOR Dkt. AP 2023-2905, 2024 PA O.O.R.D. LEXIS 483.

[9] Weber v. Harrisburg Area Cmty. College, OOR Dkt. AP 2023-1559, 2023 PA O.O.R.D. LEXIS 2024.

[10] Commonwealth v. Rudberg, 32 A.3d 877 (Pa. Commw. Ct. 2011).

[11] Johnson v. Pa. Convention Ctr. Auth., 49 A.3d 920, 924 (Pa. Commw. Ct. 2012); see also McGill v. Bangor Borough, OOR 2010-1216, 2011 PA O.O.R.D. LEXIS 70.

[12] Alecknavage v. Yeadon Borough, OOR Dkt. AP 2023-0051, 2023 PA O.O.R.D. LEXIS 328.

[13] Office of Gen. Counsel v. Bumsted, 247 A.3d 71 (Pa. Commw. Ct. 2021).

[14] Furman v. Bethlehem-Center Sch. Dist., OOR Dkt. AP 2019-1287, 2019 PA O.O.R.D. LEXIS 1039.