Employment information release agreements.

Law enforcement organizations need to hire employees who possess the highest degree of integrity, character, and professional competence. The public expects this to be true of all law enforcement hirings, and rightfully so. However, when former employers refuse to disclose information regarding an applicant's prior employment history, it becomes more difficult for a law enforcement organization to evaluate whether an applicant meets these high standards.

Because some employers presumably base restrictive disclosure policies on an inaccurate assessment of their potential liability, this article discusses the extent to which public and private sector employers can be held liable for the disclosure of employment information. Specifically, this article examines whether an applicant's authorization to release personnel information affords immunity from defamation liability for former employers who disclose such information to a law enforcement organization.

The article begins with a brief discussion of the general principles concerning consent and immunity from defamation liability. Next, it examines two court decisions involving the use of release agreements to determine the scope of protection such agreements afford former employers who disclose personnel information to a law enforcement organization. Finally, the article offers several recommendations regarding the contents and structure of release agreements to achieve maximum protection. A sample release agreement is provided at the end of the article.

Consent Affords Absolute Privilege from Defamation

What is the legal significance of requiring an applicant for employment to sign an authorization for the release of personnel information? Does a release agreement afford former employers an absolute immunity from defamation liability for information disclosed pursuant to that agreement?

Courts generally afford employers an absolute privilege from defamation liability for disclosing employment information within the scope of a release agreement because a job applicant "...can consent to a defamation, and that consent creates an absolute bar to a defamation suit."(1) Courts and legal scholars recognize the efficacy of consent agreements and conclude that such agreements are not against public policy, even if they require job applicants to consent to an intentional tort, such as defamation.(2)

Consent creates an absolute privilege that is unaffected by a finding that a disclosure was made with malice, because an absolute privilege is intended to "...elevate the good to be accomplished by the free and open exchange of information over the harm which may result from a falsehood."(3) Moreover, an absolute privilege prevents an inquiry into a prior employer's motive or purpose in disclosing personnel information pursuant to a job applicant's consent "...since this could result in subjecting the honest person to harassing litigation and claims."(4)

For example, the U.S. Court of Appeals for the Ninth Circuit in Cox v. Nasche(5) ruled that a release form signed by an applicant for government employment afforded an absolute privilege against a defamation action, even if statements of the former employer were made maliciously.(6) Courts display a greater willingness to afford former employers absolute immunity where a person is applying for a law enforcement position for which the free flow of information may be especially important to ensure integrity and fitness for duty.

In that regard, the Supreme Court of New Mexico said a compelling reason for holding that consent creates an absolute privilege for information provided to the police is the need to ensure that only appropriate individuals with integrity and high moral character are employed in law enforcement positions.(7) Because it is essential that law enforcement organizations acquire information about the background of applicants, the court said that granting absolute immunity to employers who supply such information "...makes possible the free flow of information vital to a law enforcement organization's ability to make responsible decisions regarding the fitness of its applicants."(8)

Courts Uphold Law Enforcement Release Agreements

The two court decisions discussed here involve defamation actions against employers for disclosing information about a former employee to a law enforcement organization. Both cases uphold the legal effectiveness of authorizations for the release of personnel information when disclosure is within the scope of a job applicant's consent.

In a case from New Mexico, a state police department recruit sued his former employer, alleging he was dismissed from recruit training as a result of his former employer's defamatory statements. As part of the application process, the recruit signed an agreement that allowed the state police to investigate his background and released from liability those who provided information to the state police under a guarantee of confidentiality.

The alleged defamatory statements made by the former employer included: 1) statements made to the state police characterizing the recruit as unfit for law enforcement because of emotional instability, dishonesty, drinking on the job, and resistance to authority; and 2) statements made to the offices of the Governor and the Attorney General characterizing the recruit as a security risk, a danger to certain individuals, and a person who has serious alcohol and drug problems and who exhibits extreme anger. The Supreme Court of New Mexico in Baker v. Bhajan(9) ruled the statements made to the state police were absolutely privileged but found the disclosures to the Governor's and Attorney General's offices to be outside the scope of the applicant's consent.

In a case from Texas, a police department trainee in the Big Springs Police Department successfully completed police academy training but was terminated during field training because of poor evaluations from training officers. Several months later, the former officer applied for a job with the U.S. Marshals Service (USMS) and completed, as part of the application process, a form authorizing persons contacted to give out information about job applicants. The form purported to "...release any individual...from any and all liability for damages of whatever kind or nature which may at any time result to me on account of compliance, or any attempts to comply, with this authorization."(10)

A USMS investigator presented a copy of this authorization to the Big Springs chief of police, who then told the investigator about his dealings with the former officer. The former officer sued the chief for defamation after receiving a letter from the USMS stating that she was being rejected for employment because the chief had characterized her as having engaged in "irresponsible behavior." The Court of Appeals of Texas in Smith v. Holley ruled the consent agreement absolutely barred the defamation suit and was broad enough to immunize the chief from liability for the personnel information he disclosed to the USMS investigator.(11)

Terms of Agreement Determine Scope of Disclosure Privilege

Both Baker and Smith illustrate the generally accepted principle that a job applicant's consent to the release of personnel information creates an absolute bar to defamation liability when former employers disclose information within the scope of the consent. In essence, the scope of the consent depends on the terms of the authorization-to-release agreement.

Consent as embodied in an authorization to release does not necessarily give former employers license to tell everything about a former employee to everyone. The disclosure of personnel information pursuant to a release authorization must "...not exceed what is reasonable in light of the language or circumstances that created it."(12) For example, a job applicant's consent for the release of personnel information to a law enforcement organization would not afford the former employer a privilege to disclose that information to a newspaper for publication.

Unsolicited Disclosures

The Smith court ruled that the disclosures by the Big Springs chief did not exceed the applicant's consent because he spoke only about the former officer's job performance and capabilities and only disclosed information to the USMS investigator. The court found that the broad and all-encompassing terms in the applicant's release agreement, in effect, said to the USMS: "You may find out what other people say about me, and I will not litigate if the responses are unfavorable."(13)

Conversely, the Baker court found the former employer's disclosures to the offices of the Governor and Attorney General exceeded the terms of the consent because the applicant only agreed to the release of information solicited by the state police under a guarantee of confidentiality.(14) Thus, the former employer faces potential liability for these two unsolicited disclosures if they were made maliciously or for an improper purpose.(15)

Unanticipated Disclosures

Courts and legal scholars agree that a job applicant's consent does not immunize defamatory disclosures by former employers that the applicant had no reason to anticipate.(16) However, it is not necessary that the defamed applicant know that the personnel information of which he consents is defamatory in character. Instead, it is enough that the applicant knows the contents of the personnel file or has reason to know that it may be defamatory.(17)

A job applicant who signs a release authorization thereby invites the disclosure of personnel information by former employers "...knowing that its contents may damage his reputation cannot complain when his fears come true."(18) Accordingly, the Smith court ruled the disclosures by the Big Springs chief were not unanticipated because the former officer knew that the chief and others at the department held unfavorable opinions about her performance at the department.(19)

Good managerial practices will help ensure that disclosures of personnel information are not un-anticipated by former employees. These practices include: 1) limiting written disclosures to information contained in official personnel files; 2) limiting oral comments to information that is essentially coextensive with the information contained in official personnel files;(20) 3) affording employees regular and documented feedback on their performance; and 4) affording all employees procedural due process (i.e., notice, reasons, and opportunity to respond) prior to all adverse personnel actions.

Another legal benefit of affording due process prior to adverse personnel actions was set forth in a June 1992 article in the FBI Law Enforcement Bulletin, which examined an employer's potential liability for disclosing information that infringes a former employee's constitutionally protected liberty interest.(21) In essence, a liberty interest violation occurs only when the government disseminates stigmatizing and false information concurrent with an employee's termination. Accordingly, affording due process prior to final adverse personnel actions permits government employers to disclose all relevant personnel information to prospective law enforcement employers without fear of violating a former employee's liberty interest.

Disclosures by Persons Not Named in the Consent Agreement

Consent, whether expressed or implied, gives rise to an absolute privilege to disclose. Consent is implied where circumstances show that a former employer's disclosures are relevant to the purpose for which a release agreement is used and is limited to the appropriate prospective employer.(22)

In that regard, the former officer in Smith argued that the Authorization for Release of Information she executed did not specifically name the Big Springs chief and, therefore, did not authorize his disclosures. The court rejected that argument by concluding that while a release for past tortious conduct might only be effective for specifically named persons, a consent to future conduct can be effective against unnamed persons.(23)

Requiring specific names would render consent agreements less effective because there is no way that a general release concerning future disclosures could name all the unknown persons that a prospective law enforcement organization might want to interview. Moreover, the Smith court said that implying consent for the future disclosure of personnel information by unnamed persons promotes "...the candid exchange of information that is essential to our job market."(24)

Prior Agreements Not to Disclose

Employers sometimes enter into contractual agreements with employees whereby they promise not to disclose certain personnel information in exchange for an employee's voluntary resignation. These agreements are used as an incentive to get problem employees to resign, thereby saving the employer from time-consuming and costly termination procedures and related litigation.

For example, after the former officer in Smith v. Holley appealed her termination from the police department, the Big Springs city manager entered into an agreement with her. This agreement stipulated: 1) that the Big Springs Police Department would reinstate her and then allow her to resign citing personal reasons; and 2) that the city would purge from its personnel records all references to the involuntary termination and would mark each page of her personnel file with a notice prohibiting the release to anyone by anybody of any information in her file except the date she was hired as a police officer trainee and the date she resigned for personal reasons.(25)

The Smith court concluded that this agreement by the city to keep secret the real reasons for the officer's departure from the police force did not preclude the disclosures made by the Big Springs chief pursuant to the authorization-to-release agreement. First, the court noted the chief was not a party to the city manager's agreement with the former officer and, therefore, was not personally bound by it.(26) Second, the court suggested that a broadly worded agreement like the one signed by the former officer authorizing personal contact with individuals and the release of information would likely be sufficient to relieve former employers of an earlier contractual agreement not to disclose such information.(27)

To ensure that authorizations to release information are not limited by prior contractual agreements, law enforcement organizations should include specific language in release agreements making clear that the applicant consents to the release of that information. For example, the authorization for release of information upheld by the federal court of appeals in Cox v. Nasche contained a specific provision stating: "I Direct You to Release such information upon request of the duly accredited representative of any authorized agency regardless of any agreement I may have made with you previously to the contrary."(28)

Conclusion

The fear of potential litigation and liability is apparently sufficient to make many employers uncooperative when a law enforcement organization requests they disclose employment information. Courts recognize a compelling public interest for employers to fully disclose all relevant information to a law enforcement organization conducting a background investigation on an applicant for employment.

Accordingly, courts afford absolute immunity to employers for disclosures pursuant to an applicant's consent, as embodied in an authorization-to-release agreement. Therefore, all applicants for sensitive law enforcement positions should be required to sign a release agreement that authorizes full disclosure of all relevant information and that provides maximum protection to those who disclose pursuant to the agreement, a sample of which can be found on the next page.

Endnotes

1 See authorities cited in Smith v. Holley, 827 S.W.2d 433, 436 (Tex.App. 1992).

2 Id.

3 Id. at 439.

4 Id.

5 70 F.3d 1030 (9th Cir. 1995).

6 The significance of an absolute, as opposed to a qualified, privilege is that an absolute privilege bars a defamation action, even for maliciously made statements. Id. at 1031, n. 1.

7 Baker v. Bhajan, 871 P.2d 374, 378 (Sup. Ct.N.Mex. 1994).

8 Id.

9 Id.

10 Smith v. Holley, 827 S.W.2d 433, 435 (Tex. App. 1992).

11 Id. at 436.

12 Id. at 439.

13 Id. at 440.

14 871 P.2d at 378.

15 Id. at 379.

16 827 S.W.2d at 440.

17 Id.

18 Bagwell v. Peninsula Regional Medical, 665 A.2d 297, 316 (Md. App. 1995)

19 827 S.W.2d at 440.

20 665 A.2d at 316.

21 See Jeffrey Higginbotham, "Disclosure of Personnel Information - Constitutional Limitations," FBI Law Enforcement Bulletin, June 1992, pp. 26-32.

22 871 P.2d at 377.

23 827 S.W.2d at 441.

24 Id.

25 Id. at 435.

26 Id. at 440.

27 Id.

28 70 F.3d at 1031.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.