Montana Administrative Register Notice 2-2-378 No. 9   05/10/2007    
    Page No.: 612 -- 616
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In the matter of the amendment of ARM 2.21.6605, 2.21.6606, 2.21.6608, and 2.21.6611 and the repeal of 2.21.6610 pertaining to the Employee Record Keeping policy


TO: All Concerned Persons


1. On February 8, 2007, the Department of Administration published MAR Notice No. 2-2-378 regarding the proposed amendment of the above-stated rules, at page 165 of the 2007 Montana Administrative Register, Issue No. 3.


2. The department has amended ARM 2.21.6606, 2.21.6608, and 2.21.6611 as proposed, but with the following changes.


3. In addition, the department has also amended ARM 2.21.6605 and, instead of amending, is repealing ARM 2.21.6610. Matter to be added is underlined; matter to be deleted is interlined.


2.21.6605  SHORT TITLE (1) This sub-chapter subchapter may be cited as the employee record keeping policy Employee Records Management Policy.


AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA


2.21.6606 POLICY AND OBJECTIVES (1) remains as proposed.

(a) collect and maintain employee personnel records while protecting an employee's right of privacy pursuant to Article II, section 10 of the Constitution of the State of Montana; and

(b) to ensure employee awareness of records held, provide employees access to their personnel records, and allow employees agencies to correct their employee personnel records; and.

(c) restrict access to confidential employee personnel records to:

(i) the employee;

(ii) those persons with a job-related purpose for viewing or using the records;

(iii) persons whom the employee has granted written permission to view or use; or

(iv) pursuant to a valid court order.

(2) It is the objective of this policy to provide minimum standards for employee records keeping management and to require the adoption of a policy on employee record keeping by each department. The department policy must be adopted in compliance with this policy and in accordance with Title 2, chapter 6, Montana Code Annotated, related to records management. allow agencies to adopt supplemental employee records management procedures.


AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA


2.21.6608 DEFINITIONS As used in this subchapter the following definitions apply:

(1) remains as proposed.

(2) "Agency" has the same meaning as defined in 2-18-101(1), MCA.

(2) and (3) remain as proposed, but are renumbered (3) and (4).

(4) (5) "Employee personnel record" means information relating to an employee's employment with the state of Montana that is appropriate for preservation as an official record of employment policies, practices, and decisions. An employee personnel record may be a paper document or it may be information maintained in an information system such as the Statewide Accounting Budgeting and Human Resource (SABHRS) system System (SABHRS). Other programs including, but not limited to, Montana Public Employee Retirement Administration (MPERA), workers' compensation, or unemployment insurance, develop records relating to an employee which are not an employee personnel record as defined in this policy.

(5) and (6) remain as proposed, but are renumbered (6) and (7).



AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA


2.21.6611 ACCESS TO EMPLOYEE PERSONNEL RECORDS (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 department agency may require that the request be in writing. An department agency may not require justification for the request.

(2) remains as proposed.

(3) In addition to access provided in this chapter subchapter and an department agency 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 ten working days of the date on which an employee is made aware of the information by the department agency.

(b) through (b)(iii) remain as proposed.

(c) Nothing in this rule prohibits those having authorized access to employee personnel records as provided in this rule or in any department policy, 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) through (e) remain as proposed.

(f) The professional staff at 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 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 department 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) Some Certain governmental entities have authority pursuant to state or federal law to access an employee’s personnel record.

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

(i) remains as proposed, but is renumbered (j).


AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA


2.21.6610 ADOPTION OF DEPARTMENT POLICY found on ARM page 2-1512 is repealed.


AUTH: 2-18-102, MCA

IMP: 2-18-102, MCA


4. No requests to hold a public hearing were received. The department received several comments requesting changes and clarity to the proposed amendments. A summary of the comments and the department's responses follow.


Comment No. 1: The department received five comments about ARM 2.21.6606(1)(b) pertaining to the correction of records. The proposed rule states, in part, "…and allow employees to correct their personnel records..." Those that commented had concern about clarification as to when this is allowed, and what type of corrections employees could make.


Response No. 1: The department agrees that the proposed wording does not clarify "who" is managing, correcting, accessing the records. Therefore, the language has been changed to clarify this matter. Further, the department will develop a model procedure, for agency use, that will assist agencies if they want to clarify this further.


Comment No. 2: The department received four comments pertaining to ARM 2.21.6608, specifically, (1) "employee personnel record" and (4) "access."


Regarding ARM 2.21.6608(1), the commenters felt in general that the existing definition of "employee personnel record" is not specific enough, and could, for example, include any informal notes and drafts. One comment also suggested adding the word "secure" to the definition; another suggested adding the word "official." Other comments questioned why WC, MPERA, and UI records are not considered an employee personnel record, according to the definition.


Regarding ARM 2.21.6608(4), commenters requested further clarification on the meaning of "access" and "using."


Response No. 2: The department does not believe it is necessary to add the word "secure" to the definition of "employee personnel record." ARM 2.21.6606(2) defines "confidential records." This definition clarifies that employee records are secure because they have restricted access. However, the department agrees that adding the word "official" has merit. The department has added the word official to the definition of "employee personnel record" and believes it addresses the difference between informal notes and formal documents in the employee personnel record.


The department disagrees that WC, MPERA, and UI records are part of an "employee personnel record." These programs operate independent of agency management. Agency management cannot dictate the disposition of programmatic records maintained by these organizations.


The department disagrees with the need to further clarify the words "access" and "using." As mentioned previously, the department will produce model procedures that agencies may use to further clarify these terms.


Comment No. 3: The department received three comments pertaining to ARM 2.21.6610(1). As proposed, the rule states: "All departments must adopt a procedure which is consistent with this subchapter and which contains, at a minimum, the following provisions:". The commenters believe it is a burden to require agencies to create another policy or procedure. Furthermore, it was pointed out that the proposed language interchanges the terms "policy" and "procedure," which is inconsistent.


Response No. 3: The department agrees on both points and has repealed ARM 2.21.6610 in its entirety.


Comment No. 4: The department received one comment on ARM 2.21.6611(3)(h). The comment suggests further defining department procedure, clarifying "some", as well as adding a notification procedure that would alert employees should their records be accessed.


Response No. 4: Procedures are addressed in agency adopted procedures; therefore, the department disagrees with the need to further define "department procedure." As mentioned earlier, the department will create a model procedure that relates to this policy. Agencies may use it to further clarify such items as when and how employees are notified. 

The department agrees with the need to clarify the word "some" as used in (3)(h). The department has changed the language from "some" to "certain."


Comment No. 5: The department received two comments regarding the name of the policy, "employee record keeping." Comment suggests changing the name of the policy. As it reads now, it implies the employees are "keeping" their records.


Response No. 5: The department agrees and has changed the name and all subsequent references from "employee record keeping" to "employee records management." This is a standard term used in many organizations.




BY: /s/ Janet R. Kelly                                                   BY: /s/ Dal Smilie

Janet R. Kelly, Director                                               Dal Smilie, Rule Reviewer

Department of Administration                                    Department of Administration


Certified to the Secretary of State April 30, 2007

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