In response to a request for a personnel file, one of our clients sent us a former employee’s personnel file. There, in the file, was a letter of advice from one of our Firm’s attorneys regarding the termination of the employee. The question arose whether this letter is disclosable to the former employee under the Illinois Personnel Records Review Act (“IPRRA”). Under the IPRRA, employees and former employees have the right to access and copy all personnel “documents” which “have been or are intended to be used in determining the employee’s qualifications for employment, promotion, transfer, additional compensation, discharge or other disciplinary action.” The IPRRA lists several exceptions, including documents naming other employees. In addition, employers do not have to release letters of reference, test documents and documents about staff planning.
We took the position that letters and correspondence between the Firm and the client are not disclosable under the IPRRA. However, we are concerned because current and former employees are more frequently asking to inspect their personnel files. Although some clients forward the files to our office for review, other clients allow unfettered access with or without first looking into the files. By examining the files with knowledge of the IPRRA, human resource professionals and others should determine if there are any documents that do not need to be disclosed under the IPRRA or, more importantly, if there are documents covered by the attorney-client privilege.
The best practice is to place correspondence from attorneys in a separate file and not in the employee’s personnel file. Although it may be easier to maintain all documentation about an employee in one place, companies risk inadvertently disclosing documents covered by the attorney-client privilege. More importantly, a creative attorney representing the employee may claim that the company waived the privilege and that, therefore, the employee is entitled to the correspondence from the company’s attorney. We recommend that all employers should have a copy of the IPRRA and understand that a request under the IPRRA includes not only access to the personnel “file” but also to all “personnel documents” falling within the IPRRA’s guidelines. Questions about the disclosure of documents should be raised with legal counsel.