University administration denied The Flor-Ala the personnel records of David Shields, former vice president of student affairs, and Gregory Gaston, a professor placed on trespass notice June 22.
Dennis Bailey, general counsel for Alabama Press Association and president of Alabama Defense Lawyers Association, said the university has failed to properly observe a long-standing attorney general opinion. Bailey has been working with media law since 1980.
“If they would not let you see any part of a state employee's personnel record, I can say they are acting in contravention of a long-time published Attorney General Opinion on the subject,” Bailey said in an email.
Former Attorney General Jeff Session’s opinion states, “In general, applications, disciplinary actions and memorands of reprimand are documents reasonably necessary to conduct business, and thus subject to disclosure…,” as are salary expenditure, race, current assignment, rank and type of teaching certificate, employment experience record, employee’s salary, areas or endorsement, sex, date of hire and date employee attained tenure.”
In Birmingham Education Association v. Birmingham City Board of Education, the court decided lists of employee names for transfer, nonrenewal of contract, cancellation of contract, suspension or dismissal are not “sensitive personnel records” despite “potential for some embarrassment to employees whose names appear on the list.”
According to Reporters Committee for Freedom of the Press, case law and attorney general opinion state disciplinary such as a report of an investigation concerning alleged misconduct of an employee of a state university and documents in teacher personnel files regarding disciplinary actions and memos of reprimand, are public record.
The Flor-Ala submitted two written requests for the personnel records July 25.
Ross Alexander, vice president for academic affairs and provost, and Amber Fite-Morgan, university attorney, said they legally could not speak about or confirm any questions about Shields and Gaston.
Alexander said these types of scenarios are considered “personnel matters,” which he defined as “the right to protect an employee’s privacy.”
“I’ll be able to talk about Shields more on Aug. 8,” Alexander said. “For Gaston, I am legally not allowed to speak on personnel matters.”
Instead of Aug. 8, Alexander met with a Flor-Ala editor July 30, and he confirmed that Shields had officially resigned.
“The reason that I couldn’t have just told you last week when we met because we were waiting to get the letter,” Alexander said. “It would be unfair to him to talk about it until we got a formal letter.”
Human Resources sent The Flor-Ala copies of Shield’s resignation letter and President Kenneth Kitts' response letter to Shields Aug. 31
Shields submitted his resignation July 17, and Kitt’s submitted his response July 18.
“It is time for me to seek new opportunities,” Shields said in his resignation letter. The Flor-Ala could not reach Shields for comment.
Fite-Morgan said the Stone v. Consolidated Publishing Co. Supreme Court case ruling gave the university the right to deny the public records request. She said there is “potential to be legal cases.”
“Employees’ information such as psychological evaluations, family history, religious affiliation and political opinion or activities could be sensitive personnel records,” according to attorney general opinion. “The party refusing to disclose should remember it has the burden of proving the information requested falls within an exception to the Open Records Act.”
When UNA police issued a trespass notice against Gaston, Kevin Gillilan, university police chief, said there was no ongoing criminal investigation against him. As of Aug. 31, Gaston was still on the trespass list.
Gaston said Aug. 6 his attorney advised him not to speak to the press on the matter.
The Flor-Ala contacted attorney for the Student Press Law Center Mike Heisted to gain perspective. He said when a vice president of a university resigns or a trespass notice is given to faculty, a case for public records to be released is made due to its newsworthiness.
UNA Assistant Vice President for Human Resources Catherine White said in response Aug. 9 that the documents the Flor-Ala requested are considered sensitive personnel records pursuant Stone v. Consolidated Publishing Co.
The Flor-Ala submitted a second set of written requests for Shield’s and Gaston’s personnel records Aug. 18.
White responded Aug. 29 to confirm the university received the requests.