Could an Arkansas school district release records about a teacher's suspension and termination recommendation under the FOIA?

Plain-English summary

In 2013, Arkansas Attorney General Dustin McDaniel declined to decide whether a school district could release records concerning a teacher's suspension and a termination recommendation. The AG had not received the records and lacked enough information about the disciplinary process to determine which disclosure rules applied.

The opinion explained that employment-related documents generally fall into two different categories. Personnel records are disclosed unless release would cause a clearly unwarranted invasion of personal privacy. Employee-evaluation or job-performance records use a stricter test tied to suspension or termination, final administrative resolution, the records' role in the decision, and a compelling public interest.

The AG could not classify or rule on any particular record. He observed only that a teacher's position of trust can create a heightened public interest when the conduct occurred during school hours or affected students.

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.

For school districts and records custodians in 2013

The opinion did not approve or reject the proposed release. It said the custodian first had to classify each document and then apply the disclosure test for that category.

For public school employees in 2013

The AG did not decide whether the employee's records were public. The opinion said an objection based on lack of compelling public interest applied only to employee-evaluation records, not automatically to personnel records.

For requesters and journalists in 2013

The opinion supplied the general disclosure framework but no ruling on the requested documents because the record set and supporting facts were missing.

Common questions

Q: Did the AG order the school district to release the records? A: No. The AG declined to decide because he had not seen the records and could not classify them.

Q: What is the difference between personnel records and employee-evaluation records? A: The opinion described personnel records as employment-related records other than evaluations or job-performance records. Evaluation records are created by or for the employer to assess and detail job performance.

Q: When could employee-evaluation records be released under the opinion's framework? A: The opinion listed four conditions: suspension or termination, final administrative resolution, use of the records as a basis for that decision, and a compelling public interest.

Q: Does a teacher's position affect the public-interest analysis? A: It can. The opinion said teachers hold positions of trust and that public interest may be heightened when conduct occurred during school hours, at school events, or affected students.

Background and statutory framework

A.C.A. § 25-19-103(5)(A) defined public records. The opinion discussed the personnel-record rule in A.C.A. § 25-19-105(b)(12) and the separate employee-evaluation rule in A.C.A. § 25-19-105(c)(1).

For personnel records, Young v. Rice supplied an objective privacy-balancing test that favored disclosure. For employee-evaluation records, the opinion described a four-part statutory test and factors relevant to whether the public interest was compelling.

Citations and references

Statutes:

• A.C.A. § 25-19-103(5)(A)
• A.C.A. § 25-19-105(b)(12)
• A.C.A. § 25-19-105(c)(1)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)

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. 2013-104

August 27, 2013

Marjorie Davis

c/o Don McGohan, Asst. Superintendent
Bryant Public Schools

200 NW Fourth Street

Bryant, Arkansas 72022

Dear Ms. Davis:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request is based on A.C.A. § 25-19-105(c)(3)(B)G) (Supp. 2011), which 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 correspondence indicates that someone has lodged an FOIA request for “[al]l documents concerning the termination recommendation that was made last year regarding your employment and the School Board’s final action in this case.” The custodian intends to release the requested information. While you say that you were suspended, you do not give any more information about the circumstances of this “termination recommendation,” nor have you attached any records reflecting the Board’s “final action in [the] case.” You object to the custodian’s decision to release the records because you believe the public lacks a compelling interest in them.

RESPONSE

My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. Not having seen the records at issue, I cannot opine about the release of any particular document. Nor can I opine in general about the release of records regarding a “termination recommendation” because I have not been given

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sufficient information to even categorize the requested documents into personnel records or employee evaluation records. Accordingly, the most I can do is explain the general standards governing FOIA requests for employment-related records.’

DISCUSSION

1. General standards governing disclosure

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The first two elements appear met in this case. As for the first element, the documents are held by the school district, which is a public entity. As for the second element, the FOIA defines “public record” as:

writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.'

Though you do not clearly say, your letter seems to indicate that all the requested documents were created or collected during some kind of internal evaluation or disciplinary process. Accordingly, the documents “constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency.” Therefore, in my opinion, these documents must be disclosed unless some specific exception provides otherwise.

' A.C.A. § 25-19-103(5)(A) (Supp. 2011).

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Il. Exceptions to disclosure

Under certain conditions, the FOIA exempts two groups of items normally found in employees’ personnel files.” For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records” or “employee evaluation or job performance records.” The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

a. Personnel-records exception

The first of the two most relevant potential exceptions is the one for “personnel records,” which the FOIA does not define. But this office has consistently opined that “personnel records” are all records other than employee evaluation and job performance records that pertain to individual employees.” Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this

This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. F.g., Op. Att’y Gen. 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).

7 A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter.... [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

4 ACA. § 25-19-105(c)(1): “Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.”

• See, e.g., Op. Att’y Gen. No. 1999-147; Watkins & Peltz, supra, at 187.

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definition, then it is open to public inspection and copying except “to the extent

that disclosure would constitute a clearly unwarranted invasion of personal 396

privacy.

While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court, in Young v. Rice,’ has provided some guidance. To determine whether the release of a personnel record would constitute a “clearly unwarranted invasion of personal privacy,” the court applies a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private. The balancing takes place with a thumb on the scale favoring disclosure.

The balancing test elaborated by Young v. Rice has two steps. First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimus privacy interest.* If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public’s interest in disclosure.” Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public’s interests. '° The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective."

Whether any particular personnel record’s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.’

© A.C.A. § 25-19-105(b)(12) (Supp. 2011).

” Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

8 Id. at 598, 826 S.W.2d at 255.

” Id., 826 S.W.2d at 255.

'° Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). '' F.g., Op. Att’y Gen. Nos. 2001-112, 2001-022, 94-198.

2 Op. Att’y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.

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Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include:

e dates of birth of public employees (Op. 2007-064);

e social security numbers (Ops. 2006-035, 2003-153);

e medical information (Op. 2003-153);

e any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));

e driver’s license numbers (Op. 2007-025);

e insurance coverage (Op. 2004-167);

e tax information or withholding (Ops. 2005-194, 2003-385); e payroll deductions (Op. 98-126);

e banking information (Op. 2005-195);

e unlisted telephone numbers (Op. 2005-114);

e home addresses of most public employees (A.C.A. § 25-19-105(b)(13)); personal e-mail addresses (Op. 2004-225); and

e marital status of employees and information about dependents (Op. 2001- 080).

b. Employee-evaluation exception

The second potentially relevant exception is for “employee evaluation or job performance records,” which the FOIA likewise does not define. But the Arkansas Supreme Court has recently explained that the term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that

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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)’

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

'? Thomas v. Hall, 2012 Ark. 66, __ S.W.3d__ (Feb. 16, 2012); see, e.g., Op. Att’y Gen. Nos. 2009-067, 2007-225, 2006-035, 2004-211, 98-006, 95-351, 94-306, and 93-055,

4 7g.

'S A CLA. § 25-19-105(c)(1) (Supp. 2011); Op. Att’y Gen. 2008-065,

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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.

Because teachers hold a position of trust, this office has repeatedly opined that the public has a particularly heightened interest in records reflecting the conduct of public school teachers during school hours, during school events, and especially when students are affected by that conduct.'®

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. "9

Ill. Application.

As noted above, I lack sufficient information to engage in any rigorous analysis of the custodian’s decision. Nevertheless, I offer two observations regarding your objection to the records disclosure—i.e. that the public lacks a compelling interest. First, this objection only applies to employee-evaluation records, which means that it is irrelevant to any personnel records that might be contained in the documents that the custodian intends to release. Second, as noted above, teachers’ positions of trust give rise to a particularly heightened public interest in records reflecting their conduct during school hours, during school events, and, especially, when students are affected by the conduct. Because you indicate that the conduct for which you were disciplined occurred during school hours, you are, in my opinion, unlikely to

'© Watkins & Peltz, supra, at 217-18 (footnotes omitted).

'’ Td. 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.”).

'8 See, e.g., Op. Att’y Gen. Nos. 2009-095, 2002-320, 2002-158, 2001-148, 2001-142.

'? Cf. Op. Att’y Gen. 96-168; Watkins & Peltz, supra, at 204.

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prevail in claiming that there is no compelling public interest. Nevertheless, as I have noted, I cannot be definitive because I lack sufficient information.

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

Sincerely,

SIN MCDAXTEL
Attorney General

DM/RO:cyh