Multi-Rater Appraisals: Confidentiality and Personal Privacy

Some agencies have expressed an interest in, and others are experimenting with, multi-rater assessments, a method for gathering information about employee performance from a variety of sources. Traditionally, supervisors have assessed employee performance with, perhaps, some employee input. Multi-rater assessment, often known as 360-degree assessment, solicits input from a variety of people who have direct knowledge of an employee's performance, such as coworkers, customers (both internal and external), and subordinates, as well as the supervisor and the employee.

Different agencies use different methods for operating multi-rater appraisal programs. Some agencies use computerized programs that are maintained within the agency, while other agencies rely on a contractor(s) to operate and maintain the program. Some programs are designed so that the supervisor receives the collective information, consolidates it, and shares the tabulated scores and the comments with the employee, while other programs provide feedback directly to the employee. In most cases, multi-rater appraisals rely on anonymous input, so programs usually include a means to disassociate assessments and comments from the identified raters.

Because managers may use the performance information for evaluative purposes—forming the basis for the rating of record—as well as developmental purposes, confidentiality and personal privacy are critical considerations in establishing multi-rater assessment programs. While agencies may institute and practice a policy of anonymity, two major statutes that establish the requirements and limitations about releasing Government-held information may preclude guaranteed anonymity.

Freedom of Information Act (FOIA)

FOIA covers information that an individual requests about someone else or something that is not specifically about the requesting individual. Under the provisions of FOIA, agencies must release to a requester all agency-held information on the requested subject unless it is protected by one of several specified exemptions.

With respect to requests for information dealing with the performance of other employees, one such FOIA exemption prohibits agencies from releasing such information. This exemption holds that FOIA provisions do not apply to matters that are in "personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy" (5 U.S.C. 552(b)(6)). In other words, because of the personal nature of performance information, FOIA protects the rated employee's privacy.

Exception

If, however, an agency receives a court order signed by a judge ordering the release of performance appraisal information, it must do so. If an agency receives the same kind of order from an administrative law judge or an arbitrator, the agency decides whether to honor the order.

Privacy Act

The Privacy Act covers information that individuals request about themselves that is Government-held information contained in a system of records. A system of records is defined by law as "...a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual" (5 U.S.C. 552a(a)(5)).

Performance appraisals, including the employee performance plans on which they are based, are kept in the Official Personnel File (OPF) or the Employee Performance Folder (EPF). Each is a Governmentwide system of personnel records. Consequently, if an employee wants to see his/her performance information, including input provided under a multi-rater process, the employee would request it under the Privacy Act. The agency must provide that OPF or EPF information because it is maintained in a system of records and is retrievable by the individual identifier of the person who was rated.

With respect to rater anonymity, if the agency keeps the appraisal input information associated with the specific raters who provided it, the agency would be required to release all that information to the requesting employee. (However, compliance with Privacy Act requests carries no obligation to reconstruct such associations if they had previously been eliminated.) This means that an agency that maintains such rater-identified information may practice rater anonymity when supplying normal feedback as part of the regular appraisal process, but should not claim to be able to guarantee rater anonymity in the event of a Privacy Act request.