Could Little Rock withhold seven internal-investigation records when the employee investigated was not suspended or terminated?

Plain-English summary

A City of Little Rock employee complained about a superior. The city's investigation generated ten listed records, including recordings, interview notes and complaint disposition letters. The complainant requested the file. The records custodian asked the AG to review a decision to withhold seven identified items: witness and subject recordings, witness notes, scheduling notes, interview questions, and two disposition documents.

The custodian classified those seven items as evaluation records of the person complained against. The AG said that classification and the withholding decision were consistent with FOIA based on the descriptions he received. He had not seen the documents and expressly could not give a document-specific opinion.

The opinion explains that a record created by or at an employer's behest to evaluate an employee can be an employee-evaluation record. To release such records, four conditions must all be met: suspension or termination of the employee, final administrative resolution, a link between the records and that decision, and a compelling public interest in disclosure. The custodian reported that the employee had not been suspended or terminated based on the facts reflected in the records, so the first condition was not met.

The AG did not analyze whether the three other listed items were released, withheld, or subject to a different exception. The record list says a complaint disposition letter had already been sent to the complainant, but the opinion addresses only the custodian's seven-item withholding decision.

What this means for you

Custodians and requesters

The opinion turns on how the seven records were created and the reported discipline outcome. A custodian must assess the actual records; the AG's answer rested on descriptions and did not resolve the treatment of every item in the file.

Currency note

This opinion was issued in 2014. Check current FOIA law and the actual record facts before applying its analysis elsewhere.

Common questions

Which documents did the AG address?
He addressed items 2, 3, 5, 6, 7, 9 and 10 in the custodian's list. Those were the records the custodian proposed to withhold and asked him to review.

Why did he think those records could be withheld?
The descriptions indicated the city created them to evaluate the employee complained against. The custodian said the employee was not suspended or terminated based on the facts reflected in them, so the first release condition failed.

Did the AG decide whether to disclose the complainant's interview or letter?
No. Those items were listed as part of the file but were outside the withholding decision submitted for review. The opinion says only that a disposition letter had already been sent to the complainant.

Could a compelling public interest alone require disclosure here?
No. The AG said all four evaluation-record conditions must be met, and the reported facts failed the first.

Background and statutory framework

The AG described a three-part FOIA inquiry: a request to an entity covered by the Act, a public record, and no exception requiring withholding. He found the first two parts met because the city generated the investigation records. He then applied the evaluation-record exception to the seven documents the custodian identified, based on their descriptions and the reported lack of suspension or termination.

Source

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

Original opinion text

Opinion No. 2014-093
August 19, 2014

Sharre A. Brooks
Labor and Employee Relations Manager
City of Little Rock
500 W. Markham, Suite 130W
Little Rock, Arkansas 72201-1428

Dear Ms. Brooks:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian, 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.

Your correspondence indicates that a public employee filed a complaint against a superior. The complaint led to an internal investigation that generated the following records:

1. A digital recording of an interview with the complainant/FOIA requester;
2. A digital recording of interviews with witnesses;
3. A digital recording of an interview with the person complained against;
4. Written notes from the interview with the complainant;
5. Written notes from the interview with one witness;
6. Notes related to scheduling the interview with the person complained against;
7. Written interview questions for the person complained against;
8. A complaint disposition letter that was already sent to the complainant;
9. A complaint disposition letter that was already sent to the person complained against; and
10. A complaint disposition memo that was sent to the supervisor of the person complained against.

The complainant has requested the file that contains the foregoing records. You ask about items 2, 3, 5, 6, 7, 9 and 10, which you classify as employee-evaluation records of the person complained against that are exempt from disclosure because they did not form the basis for a termination or suspension. Therefore, you have decided not to disclose these documents, and you ask whether that decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen the records at issue, I cannot opine about any specific document. But I can say that after reviewing the facts as you have conveyed them, together with the brief description of the documents, I believe your decisions are consistent with the FOIA.

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 require the document to be withheld.

These documents were all generated as part of an internal investigation conducted by the City. Therefore, elements one and two are clearly met. So the only remaining question is whether any exceptions require the documents be withheld.

The documents you intend to withhold are properly classified as "employee-evaluation records." A record qualifies for this classification when it was (1) created by or at the behest of (2) the employer (3) to evaluate an employee. The documents you intend to withhold were created by or at the behest of the employer to evaluate the employee complained against. Accordingly, these records cannot be disclosed unless all the following elements are 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., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

You indicate that the employee complained against was not suspended or terminated based on the facts reflected in the records at issue here. Therefore, the first element (above) is not met, which means that the records cannot be disclosed.

In summary, based on the limited information available to me, I believe the custodian has properly classified the records at issue and has properly determined that the records cannot be disclosed.

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