When can the AG review an Arkansas custodian's FOIA decision about a public employee's records?

Plain-English summary

Elizabeth Orr, a former supervisor in the City of Rogers 911 Communications Center, objected to the city custodian's plan to release records about an adverse employment action against her. She forwarded the documents and her objection through Christopher Griffin, the City Staff Attorney, asking the AG to find the disclosure decision inconsistent with FOIA.

The AG declined to rule on the merits because the custodian had not actually made a complete decision for him to review. Three problems stood out:

1. No classification. Under A.C.A. § 25-19-105(c)(3)(B)(i), the AG only reviews custodian decisions about personnel records or employee evaluation records. The records here had not been sorted into those two categories.

2. Some records were neither. The package included call-for-service records that were not employee files at all. These might be releasable for other reasons, but they fall outside the AG's review under the personnel/evaluation framework. The AG also flagged a separate statutory exemption for 911 subscriber information at A.C.A. § 12-10-317 that the custodian needed to consider for those records.

3. No redactions. Several documents contained personal identification numbers exempt from disclosure under A.C.A. § 25-19-105(b)(11). At least one document appeared to be primarily another employee's evaluation record, mistakenly included.

The AG enclosed his earlier Opinion 2012-085 (a detailed walkthrough of the personnel and evaluation record standards) and pointed Ms. Orr to Op. Att'y Gen. 2014-111 for guidance on the "compelling public interest" prong. He also reminded her that A.C.A. § 25-19-107(a) gives any citizen the right to file an FOIA appeal immediately in Pulaski County Circuit Court or the circuit court of their residence.

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.

Background and statutory framework

The AG's review power under A.C.A. § 25-19-105(c)(3)(B)(i) is narrow. The custodian, the requester, or the subject of personnel or employee evaluation records can ask the AG whether a release decision is consistent with FOIA. The AG does not have a general FOIA-review function; he can't opine on whether call-for-service records, 911 subscriber data, or other public records should be released. Those questions go to the courts directly.

For the records the AG can review, the two-step framework applies:

1. Classification. Is the record a "personnel record" (catch-all for individual employee records other than evaluations) or an "employee evaluation or job performance record" (created by/at the behest of the employer to evaluate the employee)?

2. Test. Personnel records get the Young v. Rice privacy-balancing test. Evaluation records get the four-part disclosure test (suspension/termination, finality, basis, compelling public interest).

The custodian has to do both steps for each document. Saying "I'm going to release everything" without classification and testing is incomplete and not reviewable.

Common questions

What's the difference between this and Op. 2014-116, where the AG signed off on AHTD's release decision?

The AHTD HR director (Crystal Woods) had done the work: she classified each of the four records, applied the right test to each, and made specific release decisions she could defend document by document. Here the Rogers custodian appears to have made a blanket decision to release without sorting through the records. The AG can review the first; he cannot review the second.

Why mention the 911 subscriber statute?

A.C.A. § 12-10-317 is a separate statutory exemption that protects 911 caller subscriber information independently of FOIA's personnel-records framework. The custodian has to apply it before releasing call-for-service records. A custodian who only thinks about personnel/evaluation exemptions and not about 12-10-317 might inadvertently release protected subscriber data.

Did Ms. Orr have any recourse?

Yes. The opinion makes clear that A.C.A. § 25-19-107(a) lets any citizen appeal a FOIA denial (or in this case, a planned release) to the circuit court immediately. She could also push the custodian to do the analysis properly before releasing anything. The AG opinion is one form of leverage; it isn't the only one.

What was Op. 2014-111 about and why was it referenced?

Op. 2014-111 (the Fayetteville police officer case) addresses the compelling-public-interest prong of the evaluation-records test. The AG specifically called out page 7 of that opinion for its observation that the violation of a rule designed to avoid compromising public safety and order is itself enough to establish a compelling public interest, even for a rank-and-file employee. The pointer suggests the AG thought at least some of Ms. Orr's records, if properly classified as evaluation records, might satisfy that prong.

Could the custodian have classified everything as personnel records and avoided the evaluation framework?

Not honestly. Some of the records appeared on their face to be evaluation records (created by supervisors to evaluate the employee, often documenting misconduct). A custodian who calls them personnel records to avoid the harder test would be wrong about the classification and would face a reviewing court that re-classifies them anyway.

Source

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

Original opinion text

Opinion No. 2014-112
October 6, 2014

Ms. Elizabeth M. Orr
c/o Christopher M Griffin
City Staff Attorney
301 West Chestnut Street
Rogers, Arkansas 72756

Dear Ms. Orr:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

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 someone has requested copies of "any complaints about and/or investigations of any employee of the ... Emergency Medical Service providers, including radio operator/911 dispatchers." It is my understanding that you were formerly employed by the City of Rogers as a supervisor in the 911 Communications Center. In response to the FOIA request, the records custodian has decided to disclose certain records, including several relating to an adverse employment action taken against you. You have forwarded the records to my office and objected to disclosure on the basis that it would be devastating and detrimental to you personally and professionally.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. But it is clear to me that the custodian in this instance has not made a complete decision for me to review, or at least no such decision is discernible from the records or from any other information you have forwarded to my office.

When issuing opinions pursuant to section 25-19-105(c)(3)(B)(i), I am only authorized to assess the custodian's decisions regarding two types of documents that can be exempt from disclosure under the FOIA: "personnel records" and "employee evaluation or job performance records." When custodians assess whether particular records fall under either of these exemptions, 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 the particular record be disclosed, either in whole or in part.

The custodian apparently has not undertaken the foregoing steps in this case, each of which is critical to generating a decision this office can assess. I have no information to indicate that the records have been categorized, or that the relevant test for disclosure has been applied to each record. My impression that there has been no considered decision with respect to each record is fueled by the fact that many of the documents contain personal identification numbers, which are exempt from disclosure, and by the fact that a number of the documents appear to be neither personnel nor evaluation records. Additionally, although a portion of one of the documents may be an evaluation record as to you, it appears to primarily be the evaluation record of another employee. This further buttresses my impression that the custodian has not made a studied decision regarding each of the records that he or she apparently intends to release. Or if the custodian has made such a decision, that decision either has not been forwarded to you or you have not provided the information to my office.

I am therefore unable to evaluate the custodian's decision. However, to assist you in evaluating your options concerning the release of the records, please note that I have enclosed Attorney General Opinion No. 2012-085, which explains the FOIA standards regarding personnel and employee evaluation records.

You may also find it helpful to review Op. Att'y Gen. No. 2014-111, which is available on our website at www.arkansasag.gov. That opinion may be referenced for specific guidance regarding the "compelling public interest" prong of the test for the release of employee-evaluation records. In particular, I suggest you review page 7 of this opinion, where it notes the significance of the fact that the employee's suspension in that case "resulted from the violation of a rule directly designed to avoid any compromise of public safety and order." The following observation regarding the existence of a "compelling public interest" is particularly instructive (and applies as well in the context of an employee who has been terminated): "This office has consistently held that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of an investigative file, assuming the other conditions for release have been met."

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh

Enclosure (Op. Att'y Gen. 2012-085)

The FOIA specifically provides a right of judicial review for any citizen who believes their FOIA rights have been violated: "Any citizen denied the rights granted to him or her by this chapter may appeal immediately from the denial to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party . . . ." A.C.A. § 25-19-107(a).