Few limits on workers who want copies of files
Published 03/23/99

Employers must honor requests for copies of a personnel file of both employees and former employees under New Hampshire law. Specifically under RSA 275:56, both employees and former employees have a right to a reasonable opportunity upon request to inspect the employee=s personnel file and to receive a copy of all or part of such file.

If upon inspection of the personnel file, an employee disagrees with any of the information contained in the file, and the employee and employer cannot agree upon removal or correction of the information, then the employee may submit a written statement explaining his version of the information together with evidence supporting such version for placement in his personnel file. That statement must be maintained as part of the employee=s personnel file and included in any transmittal of the file to third parties.

The statutory rights to an employee=

s personnel file under RSA 275:56 does not require the disclosure of:

• information in the personnel file of a requesting employee who is subject to an investigation at the time of his request if the disclosure of such information would prejudice law enforcement; or
• information relating to a government security investigation.

The definition of Apersonnel file@ as used in RSA 275:56 is specifically defined by New Hampshire Administrative Rules LAB 802.07 as Aany and all personnel records created or maintained by an employer and pertaining to an employee, including but not limited to, employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports, and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure by RSA 275:56" as stated above, or otherwise privileged or confidential by law. Examples of documentation which may be privileged and confidential pursuant to this law would be correspondence between the president of the employer company and the company=s lawyer relative to the handling of that particular employee, as such communications are generally considered subject to the attorney/client privilege and possibly confidential under the Attorney Work Product Doctrine.

The New Hampshire Supreme Court reviewed the practical ramifications of R.S.A. 275:56 in December 1998 when the Court addressed a demand by a police officer to receive certain investigative reports as part of his personnel file from his police department. The Court=s ruling helped clarify the employer=s obligations to disclose investigative files into employee=s conduct. The Court found that until the police department (employer) initiated a disciplinary process, internal investigations into an officer=s conduct did not effect the officer=s (employee=s) work history, and thus references in the personnel file to such Anot substantiated@ internal investigations did not legally entitle the officer to a copy of the investigative files.

In this case, the Court discussed in detail the public policy concerns of protecting confidentiality of investigative files, including instilling confidence in the public to report without fear of reprisal. While that public policy concern may not be identical in the private employer context, it appears from this case that the Court is stating that an employee should not be allowed to have access to, as part of his personnel file, documentation of meritless claims that were not considered actionable by the employer and therefore resulted in no disciplinary action. Of course, this does not prohibit an employee in litigation from obtaining that information through formal discovery. For example, if an employee is claiming retaliation in the form of employment termination as a result of her reporting sexual harassment by her supervisor, yet the employer claims the discharge was due to lack of work or performance, any investigative files regarding allegations of misconduct will likely be discoverable.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, PA whose legal practice includes counseling businesses and business persons on a variety of legal issues and advocating on their behalf. Attorney Marr is also an adjunct professor at Daniel Webster College where he teaches business law. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.