(1) All employee personnel records are confidential and access is restricted, except an employee's position title, dates and duration of employment, salary, and claims for vacation, holiday, or sick leave pay, which are public information and must be released on request. An agency may require that the request be in writing. An agency may not require justification for the request.

(2) An agency must restrict access to confidential records to protect individual employee privacy.

(3) In addition to access provided in this subchapter and an agency procedure, the following provisions apply to employee personnel records:

(a) The employee has access to all of his or her employee personnel records. An employee may file a written response to information contained in employee personnel records which becomes a permanent part of the record. The response must be filed within ten working days of the date on which an employee is made aware of the information by the agency.

(b) Information collected regarding medical examinations or inquiries must be treated as confidential medical records in compliance with the Americans with Disabilities Act (ADA) and collected and maintained on separate forms in separate files from employee personnel records. As provided in the ADA, access is restricted to:

(i) supervisors and managers when identifying restrictions on the employee's work or duties or identifying necessary accommodations;

(ii) first aid and safety personnel, when appropriate, if the disability might require emergency treatment; and

(iii) on request from government officials investigating compliance with the ADA.

(c) Nothing in this rule prohibits those having authorized access to employee personnel records as provided in this rule or in any agency procedures from relying on the content of those records when responding to a request for employment information from organizations to which the employee has applied for employment.

(d) The Office of the Legislative Auditor has access to employee personnel records pursuant to 5-13-309, MCA, for the purposes of auditing state agencies.

(e) The Human Rights Commission, Department of Labor and Industry, has access to employee personnel records directly related to complaints of discrimination.

(f) The professional staff of the State Personnel Division has access to confidential records when gathering summary data on personnel programs or systems or to provide technical assistance at the request of an agency.

(g) Employee personnel records, as defined in this policy, do not include documents, information, or other evidence developed as part of an investigation. Investigations may include, but are not limited to, grievance investigations, violation of agency rules, policies, and procedures, or matters which may result in civil or criminal prosecution. Access to such documents will be determined on a case-by-case basis, balancing the constitutional guarantees of The Right to Privacy, Article II, section 10, and The Public's Right to Know, Article II, section 9.

(h) Certain governmental entities have authority pursuant to state or federal law to access an employee's personnel record.

(i) Other persons may access an employee's personnel record only if there is a job-related purpose, the employee has granted written permission, or pursuant to a valid court order. An agency will inform an employee when a valid court order has been received directing access be provided to an employee's personnel record.

(j) Fees may be charged to copy employee personnel records.