Must Jonesboro withhold complaint-investigation records about an employee who resigned without suspension or termination?

Plain-English summary

Terry Adams resigned from a public job on August 19, 2014. After a request for his personnel file, the custodian forwarded six documents to the AG: Adams's resignation letter and five records relating to an investigation of complaints against him. Adams objected to disclosure of the five investigation records, not the resignation letter. The AG said the custodian's intended decision was not entirely clear, but he reviewed the five disputed documents.

On their face, the documents appeared to have been created by or at the employer's request in investigating a complaint. The AG described a memo-to-file, written complaints, and two witness statements. He said the complaints had been reduced to writing at the employer's behest; the witness statements also appeared to have been prepared for the investigation. Their timing reinforced his conclusion that the employer likely solicited them.

The AG classified the five documents as employee-evaluation records. Such records could be released only if all four conditions were met: suspension or termination, final administrative resolution, records forming a basis for that decision, and a compelling public interest. Because Adams was neither suspended nor terminated, the AG said these records had to be withheld. His opinion did not decide whether the resignation letter should be released.

What this means for you

Custodians and employees

The classification here depended on the AG's review of the five documents and how they appeared to have been created. He did not announce that every witness statement or complaint has the same status. The lack of suspension or termination resolved the release question for these five records as he classified them.

Currency note

This opinion was issued in 2014. Check current FOIA law and the actual documents before applying it to another request.

Common questions

Which records did the AG say must be withheld?
Items 2 through 6: a memo-to-file, two written complaints and two witness statements. He classified them as employee-evaluation records.

Why did the witness statements receive that classification?
From his review of the documents and their timing, the AG thought both had been created at the employer's behest for the complaint investigation. He described that conclusion as an inference from the records.

Did resignation satisfy the suspension-or-termination condition?
The AG said Adams was neither suspended nor terminated, so the first condition for release was not met. The opinion did not analyze a different kind of resignation.

Did the opinion order release of the resignation letter?
No. Adams did not object to Item 1, and the AG addressed the disputed investigation records instead.

Background and statutory framework

The opinion says FOIA disclosure requires a request to a covered entity, a public record, and no applicable exception. The AG found the first two matters apparently satisfied and applied the employee-evaluation exception to the five disputed records. Its four conditions for release were not satisfied on the reported discipline facts.

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2014-096
September 10, 2014

Mr. Terry Adams
c/o Gloria Roark, PHR, IPMA-CP
Director of Human Resources
City of Jonesboro
300 South Church Street
Jonesboro, Arkansas 72401

Dear Mr. Adams:

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), 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, on August 19, 2014, you resigned your position as a public employee. Someone has requested a copy of your personnel file. The custodian has forwarded the following six documents, which are at issue here:

1. Your letter of resignation;
2. A letter dated August 18, 2014 that seems best described as a memo-to-file detailing someone's investigation into a complaint;
3. A two-page complaint document signed on August 18, 2014;
4. A two-page email document that narrates a complaint;
5. A handwritten and signed letter dated August 19, 2014, that seems best described as a witness statement; and
6. A witness statement emailed at 12:34 on August 19, 2014.

Though it is not quite clear what the custodian's decision is regarding these records, you object to the disclosure of Items 2-6 (but not Item 1). You ask whether the FOIA requires the custodian to shield Items 2-6 from disclosure.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Though the custodian's decision regarding these records is not entirely clear, I have reviewed the records and, on their face, they seem to have been created by or at the behest of your employer in the course of investigating a complaint against you. As such, Items 2-6 constitute employee-evaluation records. Because you were neither suspended nor terminated, the FOIA requires that these records be withheld.

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 appear met in this case. The only remaining issue is whether Items 2-6 must be withheld from disclosure pursuant to an exception.

This office has repeatedly opined that records created by or at the behest of a public employer who is investigating a complaint against a public employee are properly classified as employee evaluation records. Based on my examination of the records provided by the custodian, it appears that Items 2-6 were all created either by or at the behest of the employer:

• Item 2 seems to have been created by the employer, or at least by someone with the delegated authority to initiate an investigation into the complaints against you;
• Items 3 and 4 are complaints that, according to Item 2, were reduced to writing at the employer's behest;
• Item 5, though it is not nearly as clear as the remaining documents, bears the marks of an unsolicited witness statement that was reduced to writing at the request of the employer; and
• Item 6, the other witness statement, also appears to have been created at the employer's behest because (a) it was sent to the person who created Item 2 and (b) it was addressed "To whom it may concern," which indicates that the statement was to be added to the investigation file for someone else's benefit.

In addition, Items 2-6 were all created in rapid succession. The initial complaints (Items 3-4) were presented orally but reduced to writing four days later, which is the same day Item 2 was created. The very next day, the two witness statements were created and you resigned. This rapid succession indicates that the employer likely solicited Items 3-6.

Given that these records seem to be employee-evaluation records, the FOIA requires that they be withheld from disclosure 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., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

Because Items 2-6 did not form the basis for a suspension or termination, the foregoing four-part test requires that the records be withheld from disclosure.

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

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh