Can employees access their personnel records?

Have you ever wondered what documents your employer keeps in your personnel file?  A personnel file may include performance reviews, disciplinary records, job offer letters, position descriptions, and other important documents, but do employees have the right to access their own personnel files?

In part, the answer to that question depends on what kind of employee you are.  Unfortunately, there is no federal law that gives private sector employees a right to access their personnel files.  Although some states have filled that information-sharing gap by enacting their own laws, Washington, DC, Maryland, and Virginia have not.  If you’re a private sector employee in DC, Maryland, or Virginia, check your company’s employee handbook or contact human resources (“HR”) to see if your company has a policy on requesting access to your personnel file.

Public sector employees, on the other hand, have certain entitlements to their personnel records.  Here is a breakdown of how federal workers and state and local government employees in DC, Maryland, and Virginia can access their personnel records:

Federal Government Employee Personnel Records

The Privacy Act of 1974, codified at 5 U.S.C. § 552(a), allows individuals to access their own records from a federal agency, subject to certain exemptions.  More specifically, the Privacy Act requires federal agencies to allow their employees to access, review, and have a copy made of their own records.

Federal employees have an Official Personnel Folder (OPF), which contains various personnel documentation.  A current federal employee can access their OPF through the electronic OPF system (e-OPF) on a government computer.  A former federal employee can get a copy of their OPF by submitting a written request to the National Personnel Records Center (NPRC). The NPRC website provides instructions for submitting personnel records requests.

However, not all personnel documents are included in the OPF.  To request personnel documents that are not in the OPF, federal employees must submit a written request to the appropriate system manager for the “system of records” that houses the documents.  To identify the appropriate system manager, employees can contact their agency’s Privacy Act Officer or HR department.  The request should: (1) state that the request is made pursuant to the Privacy Act, 5 U.S.C. § 552(a), (2) identify the documents the employee is requesting, and (3) include the following information from the requesting employee:

1. Full name, signature, and home address;
2. Social security number;
3. Current or last place and dates of federal employment; and
4. Date and place of birth.

Under the Privacy Act, employees can also request to correct or amend inaccurate, incomplete, untimely, or irrelevant records maintained by federal agencies.  See 5 U.S.C. § 552(d)(2).  If the agency refuses to allow access to or amend the record, the employee can request review of the decision.  The process for requesting review depends on the type of record the employee requested.

D.C. Government Employee Personnel Records

District of Columbia Human Resources (DCHR) maintains an Official Personnel Folder (OPF) for most DC government employees.  However, there are a handful of DC agencies that maintain their own employees’ OPFs.  An employee’s OPF contains records of appointments, separations, transfers, resignations, removals, and other personnel actions.  DC government employees have the right to access their OPF, present information directly relevant to information in the OPF, and request amendment of OPF records.  See 6-B D.C.M.R § 3114.  To request access to your OPF, fill out this OPF Request Form.  If DCHR maintains your OPF, send your request to dchr.records@dc.gov.  If your agency maintains your OPF, send your request to your agency’s own HR or personnel office.

If you want to amend your OPF, you can make a request in writing or in person to the custodian of the OPF (either DCHR or the agency itself).  An amendment request should identify:

1. The record you want to amend;
2. The specific material to be added or deleted; and
3. The reasons for the request.

The request should also include all available documents and materials that justify the request.

Tip: To expedite requests sent by mail, write the words “PERSONNEL RECORD AMENDMENT REQUEST” in capital letters on both the envelope and the enclosed letter.

Virginia Government Employee Personnel Records

In Virginia, the Virginia Freedom of Information Act (“FOIA”) governs access to government records. See Va. Code § 2.2-3700.  Under Virginia’s FOIA law, public employees have the right to request to inspect or obtain copies of their own personnel records.  See § 2.2-2705.1. Under Virginia law, the term “personnel records” means “data, facts, or statements within a public record relating to a specific government employee, which are in the possession of the entity solely because of the individual’s employment relationship with the entity, and are private, but for the individual’s employment with the entity.”[1]  This means that employees may access their own personnel records, but third parties may not.

Luckily, Virginia’s FOIA law makes it easy to request your personnel files —you can submit a request via mail, fax, e-mail, in-person, or over the phone.  Your request must

(1) Include your full name, address, and contact information;

(2) Identify the records with reasonable specificity; and

(3) Ask for copies of the records—not just ask general questions about them.

One caveat is that access is restricted to Virginia citizens.  The Virginia Employment Commission must respond to requests within five working days.  For more information about where and how to make a Virginia FOIA request, visit the Virginia Employment Commission website.

Maryland Government Employee Personnel Records

The Public Information Act (“PIA”) gives Maryland government employees the right to view and obtain copies of their own personnel records, while restricting public access to those records.   Md. Gen. Provisions § 4-201(a).  The PIA grants a “person in interest” (including the person who is the subject of the requested record) a right to access certain personnel records.

To obtain records, submit a request to the PIA representative for the appropriate state, county, or municipal agency that is the custodian of the records  you want to request.  Some agencies require written requests, others accept requests over the phone.  If you are submitting a written request, find out if the agency has a standard request form.  Your request should identify yourself and specifically describe the records you seek.  If you’re unsure how to describe the records, the agency should appropriately assist you to clarify your request.  The general timeframe for responding to requests is 30 days.

If your records request is denied, PIA authorizes judicial review.  You can file a lawsuit in circuit court within two years of the denial.  For more details and requesting government personnel records in Maryland, consult the Maryland Public Information Act Manual.

Can an attorney help me request personnel records?

An employment law attorney can provide advice about seeking access to your personnel file, assist with requesting amendment of records, and determine whether an employer violated your rights by withholding your personnel records or disclosing records to third parties.   Alan Lescht and Associates, P.C., represents private sector and state and local government employees in Washington, DC, Maryland, and northern Virginia, as well as federal government workers around the world.  Contact us today to schedule a consultation with an experienced attorney and learn about your rights.

[1]   Hawkins v. Town of South Hill, 878 S.E.2d 408, 416 (2022).