Can an Arkansas school district withhold an employee's entire personnel file under FOIA?

Plain-English summary

Eric Darden requested records about an incident involving him and another Texarkana Arkansas School District employee. His request included both personnel files and the incident investigation file. The district custodian said the other employee's personnel file was exempt from disclosure. Darden asked the AG to review that decision under FOIA.

The AG said a blanket denial was inconsistent with FOIA because there was no blanket exemption for school district personnel or evaluation records. He had not reviewed the records, so he could not decide which individual records must be released or what redactions were needed. He explained the separate tests the custodian had to apply.

The opinion describes personnel records as records about an individual employee other than evaluation or job performance records. They are open except where disclosure would be a clearly unwarranted invasion of personal privacy. Under the Young v. Rice test described in the opinion, the custodian first asks whether information is personal or intimate enough to create more than a minimal privacy interest. If so, the custodian weighs that interest against the public's interest in learning what the government does. The balance favors disclosure, and the person resisting it bears the burden.

Evaluation or job performance records are different. The AG described them as records created by or for an employer to evaluate an employee and detail job performance or its absence. They cannot be released unless statutory conditions are met, including suspension or termination. If that had not happened here, the AG thought withholding a record summarizing the investigation's results would likely be consistent with FOIA.

What this means for you

Records custodians and requesters

A custodian must review the actual records, classify them, apply the relevant test and consider redactions. The AG identified dates of birth, personal contact information, social security numbers and medical information as examples that may require redaction even from otherwise disclosable records. He did not decide the contents of this employee's file.

Currency note

This opinion was issued in 2014. Check current FOIA law before applying its standards to another records request.

Common questions

Did the AG order release of the whole file?
No. He found the blanket denial inconsistent with FOIA but had not seen the records and could not decide which items or redactions were appropriate.

Do all records in a personnel file get privacy balancing?
No. The privacy balance applies to personnel records. Employee evaluation or job performance records have a separate release test.

How does the privacy balance work for a personnel record?
The custodian assesses whether the information creates more than a minimal privacy interest. If so, the custodian weighs it against the public interest in disclosure. The opinion says the scale favors disclosure and that the test is objective.

What if an investigation summary evaluates an employee who was not suspended or fired?
The AG said the threshold discipline condition for releasing evaluation records would not be met and withholding that summary would likely be consistent with FOIA.

Background and statutory framework

The opinion says a record held by a school district is a public record if it meets FOIA's definition. Whether it must be released then depends on applicable exceptions. The AG described distinct exceptions for personnel records and evaluation or job performance records and directed the custodian to apply the correct one to each record.

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. 2014-006
January 28, 2014

Eric P. Darden
Texarkana Arkansas School District
3435 Jefferson Avenue
Texarkana, Arkansas 71854

Dear Mr. Darden:

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)(i) (Supp. 2013). 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.

Specifically, your letter states that you requested records related to an incident involving you and another Texarkana Arkansas School District ("TASD") employee. You state that, in addition to your own personnel file, you also requested the entire personnel file of the other TASD employee, as well as the entire investigation file of the aforementioned incident. The custodian has concluded that the other TASD employee's personnel file is "exempt from disclosure under Arkansas' Freedom of Information Act." You ask whether this decision is consistent with the FOIA.

RESPONSE

My duty under subsection 25-19-105(c)(3)(B)(i) is to state whether the decision of the custodian of records is consistent with the FOIA. In my opinion, a blanket denial of access to records normally kept in an employee's personnel file is inconsistent with the FOIA. The FOIA does not provide a blanket exemption for every personnel record and employee-evaluation record maintained by a school district. Because I have not seen any of the records at issue, however, I cannot opine on whether any specific record must be disclosed in this case. Nor can I opine on whether any specific redactions are needed for the sub-set of records that almost certainly must be disclosed in response to your FOIA request. I can only set out the legal standard the custodian must apply in making this determination.

DISCUSSION

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 are clearly 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."

All the documents clearly meet this definition. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

Exceptions to disclosure

Under certain conditions, the FOIA exempts two 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.

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 definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal 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.

This balancing test 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 minimis privacy interest. If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. According to the Arkansas Supreme Court, the public's interest is measured by the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to."

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.

Finally, 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 include dates of birth of public employees (Op. 2007-064), personal contact information (A.C.A. § 25-19-105(b)(13)), social security numbers (Ops. 2006-035, 2003-153), and medical information (Op. 2003-153). (Please see Opinion No. 2012-063 for a more complete list.)

Employee-evaluation exception

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But, as the Arkansas Supreme Court has recently held, the term refers to 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, among other things, the employee, whose records they are, was suspended or fired. In the present case, if the employee was neither suspended nor terminated, the threshold level-of-discipline element for the release of employee evaluation or job performance records has not been met. The custodian's decision to withhold the record summarizing the results of the investigation would therefore likely be consistent with the FOIA, in my opinion.

In conclusion, the records you have requested are clearly public records and, further, likely qualify as either personnel records or employee-evaluation records. The custodian's blanket denial is therefore in all likelihood inconsistent with the FOIA. The foregoing tests must be applied to the employee's personnel file, which means that every public record should be disclosed unless some specific exemption shields it from disclosure.

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

Sincerely,
DUSTIN McDANIEL
Attorney General
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