(1) All employee personnel records are confidential and access is restricted, except an employee's position title, dates and duration of employment and salary which are public information and must be released on request. A department may not require justification for the request. A department may require that the request be in writing.

(2) A department must restrict access to confidential records to protect individual employee privacy.

(3) In addition to access provided in this chapter and a department procedure, the following provisions will 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 10 working days of the date on which an employee is made aware of the information by the department.

(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 supervisors and managers when identifying restrictions on the employee's work or duties or identifying necessary accommodations; first aid and safety personnel, when appropriate, if the disability might require emergency treat­ment, and 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 department policy, 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 purposes of auditing state departments.

(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 a department.

(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 department 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) Some governmental entities have authority under federal or state laws to access information in employee records. others may obtain access to employee personnel records only with the employee's informed and written permission or with a valid legal order. The department will inform the employee when a valid legal order has been received requiring access to an employee's personnel records.

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