Are internal investigation records, including witness statements, accessible under Arkansas FOIA when the employee resigned without being suspended or terminated?

Plain-English summary

Terry Adams worked for the City of Jonesboro. On August 19, 2014, he resigned. Almost immediately, someone filed a FOIA request for his personnel file. The custodian forwarded six documents: his resignation letter, an August 18 memo-to-file detailing someone's investigation into a complaint against him, a signed two-page complaint document, an email narrating a complaint, a handwritten witness statement, and a second emailed witness statement. Adams objected to disclosure of items 2 through 6. He did not contest disclosure of his resignation letter (item 1).

AG Dustin McDaniel sided with Adams on items 2 through 6. The AG reviewed the actual documents and concluded that all five appeared to have been created by or at the behest of Adams's employer during an investigation of a complaint against him. Under settled Arkansas law (Thomas v. Hall and a line of AG opinions), records produced in that posture are "employee-evaluation records," not ordinary personnel records.

Employee-evaluation records are presumptively closed. They can only be released when all four parts of the FOIA test are met, beginning with the requirement that the employee was suspended or terminated. Adams was neither. He resigned, and an ordinary resignation does not trigger disclosure. The four-part test therefore fails at step one, and items 2 through 6 had to be withheld.

The AG worked through each disputed document. Item 2 (the August 18 memo-to-file) was created by someone with delegated authority to initiate the investigation. Items 3 and 4 (the complaint and emailed complaint) were reduced to writing at the employer's behest, according to item 2's narrative. Item 5 (the handwritten witness statement) bore the marks of a witness account solicited and recorded for the investigation file. Item 6 (the second emailed witness statement) was sent to the same investigator and addressed "To whom it may concern," indicating it was meant for the investigation record. The AG also noted that all five documents were generated in rapid succession in the days surrounding the resignation, reinforcing the inference that the employer solicited them.

Currency note

This opinion was issued in 2014. 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

What counts as an "employee-evaluation record" under Arkansas FOIA at the time of this opinion?
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. Thomas v. Hall adopted that definition. Investigation files generated when a complaint is made against a public employee fall squarely inside.

Why don't witness statements count as their own kind of public record?
Because the test is who solicited them and for what purpose. A witness statement reduced to writing because the employer asked for it, and added to the investigation file, takes on the same classification as the investigation file. Unsolicited witness complaints are a different question (see Opinion 2014-095 for the contrast).

The four-part test for releasing evaluation records, as restated in this opinion:
(1) the employee was suspended or terminated; (2) there was a final administrative resolution of the suspension or termination proceeding; (3) the records formed a basis for the suspension or termination decision; and (4) there is a compelling public interest in disclosure. All four are required. Adams's resignation collapsed the test at the first element.

What if the employer "forced" Adams to resign?
A separate doctrine recognizes "coerced resignation" as a possible constructive termination, but the custodian decides as a factual matter whether a resignation was coerced. The follow-up Opinion 2014-103 addresses that question on the same facts.

Could the public still get the resignation letter (item 1)?
Yes. Adams did not contest item 1, and a resignation letter is generally a personnel record rather than an employee-evaluation record. Personnel records are disclosed unless release would be a clearly unwarranted invasion of personal privacy (a separate balancing test under Young v. Rice).

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the custodian, requester, or subject of personnel or employee-evaluation records to seek an AG opinion on whether the custodian's release decision was consistent with FOIA.

A.C.A. § 25-19-105(c)(1) (Supp. 2013) made employee-evaluation records open to 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." The AG read that statutory text together with Thomas v. Hall, 2012 Ark. 66, to produce the four-element test.

The "created by or at the behest of the employer" standard, together with the rule that internal-investigation records of complaints against an employee are evaluation records, traces back through a long line of AG opinions including 2014-084, 2009-067, and 95-351.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013)
• Thomas v. Hall, 2012 Ark. 66 (Arkansas Supreme Court definition of employee-evaluation records)
• Op. Att'y Gen. Nos. 2014-084, 2009-067, 95-351 (investigation records as evaluation records)
• Op. Att'y Gen. 2008-065 (four-part test)

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

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