Can Arkansas release employee evaluation records when fired employees are later allowed to resign?

Plain-English summary

A requester sought employment-related records for four former employees. All four had initially been fired. The employer later let three resign; the fourth remained fired, with the stated reason changed to “no reasons given.” The custodian classified the records as employee evaluations and withheld them for lack of a compelling public interest. Washington County’s attorney asked the AG to review that decision.

The AG agreed with withholding the three employees’ evaluation records, but for a different reason. The opinion assumed their resignations occurred during the time for an administrative appeal and were not forced. On those facts, the initial terminations were not final. Arkansas FOIA required a final administrative resolution of a suspension or termination before employee evaluation records could be released. Because that condition failed, the AG did not reach the public-interest question for those three.

For the fourth employee, the termination was final and the records apparently formed its basis. The AG could not decide the remaining public-interest question without knowing the conduct that led to discipline. Media attention, the employee’s low rank, and the custodian’s description of the conduct were relevant, but none settled that question on the facts provided. The AG had not seen the records or the request and expressly did not decide whether any particular document had been classified correctly.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Are evaluation records released after an Arkansas employee resigns instead of being fired? In the circumstances assumed here, no. The AG treated the three employees’ initial terminations as nonfinal after they were allowed to resign during the appeal period. The opinion expressly assumed their resignations were not forced.

Does a custodian need to test public interest if there was no final termination? No. The opinion described four required conditions for release. If finality fails, the AG said there is no need to decide whether a compelling public interest exists.

What if the employee actually was fired?
The fourth employee’s final firing met the first two conditions, and the records apparently supported the decision. The AG could not assess the public-interest condition without the reason for discipline.

Does press coverage alone make evaluation records public? No. The AG said “heavy media coverage” favored disclosure but was not dispositive. The nature of the infraction and the employee’s position also mattered.

Background and statutory framework

A.C.A. § 25-19-105(c)(1), as described in the opinion, allowed release of an employee evaluation record only when discipline reached suspension or termination, that proceeding had a final administrative resolution, the record formed a basis for the decision, and disclosure served a compelling public interest. The AG applied those conditions only on the assumption that the records were correctly classified as evaluations. He had not reviewed the documents.

For the three employees who resigned, the opinion stopped at finality. For the fourth, it reached the public-interest issue but lacked the reason for her firing. The opinion gave no blanket approval or denial for the fourth employee’s records.

Citations

• A.C.A. § 25-19-105(c)(1), employee evaluation records release test
• Thomas v. Hall, 2012 Ark. 66, cited for the definition of employee evaluation records

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THe ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-044

May 16, 2013

George Butler, Jr.

Washington County Attorney
280 North College, Suite 501
Fayetteville, Arkansas 72701

Dear Mr. Butler:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the custodian’s attorney, is based on A.C.A. § 25-19-105(c)(3)(B)G) (Supp. 2011). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this office stating whether the custodian’s decision regarding the release of such records is consistent with the FOIA.

Your letter indicates that someone has made an FOIA request for some employment-related records of four former employees, though you do not say what, specifically, has been requested. You report that while the employees were initially terminated, the employer later changed that determination for three employees, all of whom where “allowed to resign.” The custodian has decided that the records of all four employees qualify as employee-evaluation records and should be withheld from disclosure because, in the custodian’s view, the public lacks a compelling interest in these records. You, on behalf of the custodian, ask whether this decision is consistent with the FOIA.

RESPONSE

I lack sufficient information to fully assess the custodian’s decision. Nevertheless, as explained below, the custodian’s decision regarding the three employees who resigned is, in my opinion, correct—though not for the reasons given by the

323 CENTER STREET, SuITE 200 * Litre Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

George Butler

Washington County Attorney
Opinion No. 2013-044

Page 2

custodian. I cannot assess the custodian’s decision regarding the employee who was ultimately fired because you have not said why she was fired. The reasons for the employment-related discipline are important in assessing whether the public has a compelling interest in the records that formed a basis for that discipline.

DISCUSSION

My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. Not having seen the records at issue or the underlying FOIA request, I cannot opine about the propriety of withholding any specific document. Nor can I assess whether the custodian has properly characterized the responsive records as employee evaluations. Instead, in what follows, I will assume that the custodian has properly characterized the requested documents as employee-evaluation records, which are any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee’s performance or lack of performance on the job.' This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.’

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);

2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);

3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., relevance); and

4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).

' Thomas v. Hall, 2012 Ark. 66, __ S.W.3d_ (Feb. 16, 2012); see, e.g., Ops. Att’y Gen. Nos. 2009-067, 2008-004, 2006-035, 94-306, and 93-055.

2 Id.

3 A.C.A. § 25-19-105(c)(1) (Supp. 2011); Op. Att’y Gen. 2008-065.

George Butler

Washington County Attorney
Opinion No. 2013-044

Page 3

As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But two leading commentators on the FOIA, referring to this office’s opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee’s position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement.’

These commentators also note that “the status of the employee” or “his rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists,” which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.°

‘ John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 5th ed., 2009), pp. 217-18 (footnotes omitted).

° Id., at 216 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue.’’).

6 Op. Atty Gen. 96-168; Watkins & Peltz, supra, at 204.

George Butler

Washington County Attorney
Opinion No. 2013-044

Page 4

The most I can do, by way of applying the foregoing to your request, is to point out that, based on the factual background conveyed in your request, the custodian seems to have overlooked something. The custodian’s analysis focuses entirely on the fourth element of the test (i.e., compelling-public-interest prong). But, as your background facts make clear, the question whether there is a compelling public interest is entirely irrelevant to three of the four employees. These three employees, though initially terminated (thus meeting the first prong), were later “allowed to resign,” which means that termination was not final.’ Accordingly, the second prong (i.e., finality) is not met. Therefore, for these three employees, there is no need to assess whether the public has a compelling public interest in the records.

What about the fourth employee? She was initially fired for some reason, though you do not say what it was. But the employer later amended her termination to state that she had been fired “with no reasons given” for the termination. Hence, unlike the other three employees, this fourth employee’s termination became final. Therefore, the first two elements for the release of her records are met.

The custodian has apparently collected employee-evaluation records that formed the basis for that final termination. Hence, the third element appears to be met.

The remaining question is whether the fourth prong (compelling public interest) has been met. You say that there has been “heavy media coverage” of the matter “when the initial terminations were learned of.” While that weighs in favor of affirming that there is a compelling public interest, you (correctly) point out that media coverage (by itself) is not dispositive. In contrast, you point out two factors that weigh against a finding that the public has a compelling interest: (1) the issue that gave rise to the termination did not “rise to a level of a violation of public trust,” nor did it involve “gross incompetence” or “mishandling of public funds”; and (2) the rank of the employee who was terminated was “low” and she “had no contact with the general public.”

While the latter two factors are important in assessing whether a compelling public interest exists, they are not dispositive. This office has repeatedly noted that when

’T assume, for purposes of this opinion, that the decision to allow these employees to resign took place during the time for an administrative appeal and that they were not forced to resign in the sense described in Op. Att’y Gen. Nos. 2012-019, 2007-061. See also Watkins & Peltz, supra, 210-212.

George Butler

Washington County Attorney
Opinion No, 2013-044

Page 5

a law enforcement official violates certain kinds of departmental regulations, the public typically has a compelling interest.® Because I do not know why the employee was disciplined, I cannot fully assess the custodian’s decision regarding whether there is a compelling public interest in the records that formed a basis for that discipline.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

USTIN MCDANIEL
Attorney General

DM/RO:cyh

• E.g., Op. Att’y Gen, No. 2009-195.