When should an Arkansas state agency release the records that led to firing an employee?

Plain-English summary

Crystal Woods, head of the Human Resources Division at the Arkansas State Highway and Transportation Department (AHTD), followed up on Opinion No. 2014-109 (where the AG could not opine because he had not seen the records or the custodian's decisions). She submitted four documents related to a former employee's suspension and termination and asked whether her decision to release all four was not just consistent with the FOIA but required by it.

The AG agreed with both her classification and her decision. The four records were:

• Form 19-125 (basic personnel-information change-of-status form): a personnel record, per Op. Att'y Gen. 2007-323. Releasable because no clearly unwarranted privacy invasion was at stake.
• A letter dated September 8, 2014, a multi-page report dated September 2, 2014, and a termination letter dated September 15, 2014: all three were employee-evaluation records. All four statutory release elements were met:
  1. The employee was suspended (and apparently terminated).
  2. The suspension proceeding was final (even if the termination's finality was disputed).
  3. The records formed the basis for the suspension decision.
  4. Given what the records addressed, there was a compelling public interest in release.

The AG took the unusual step of saying release was not only "consistent with" but "indeed, required by" the FOIA. That's stronger than his usual framing in personnel-record cases.

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

Arkansas FOIA divides employment records into two categories with different release tests:

Personnel records (A.C.A. § 25-19-105(b)(12)) are open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Routine personnel forms, including change-of-status memorializations, generally fall here. They're presumptively released unless privacy concerns override.

Employee evaluation or job performance records (A.C.A. § 25-19-105(c)(1)) are records created by or at the behest of the employer to evaluate the employee's performance. These are presumptively closed unless all four conditions are met:

1. The employee was suspended or terminated.
2. There has been a final administrative resolution.
3. The records formed the basis for the discipline.
4. The public has a compelling interest in disclosure.

Each category has its own classification step. The custodian first decides what kind of record it is, then applies the appropriate test. The AG used this opinion as a clean illustration of the two-step framework, having developed the legal background in Op. Att'y Gen. 2014-109 (which Woods's request followed up on).

The compelling-interest prong is fact-driven, but the AG accepted Woods's representation that the records reflected suspension-worthy conduct. The "finality" prong was satisfied as to the suspension even if the termination's finality was contested.

The Form 19-125 question is interesting. Change-of-status forms typically contain basic personnel data: position changes, salary adjustments, effective dates. Op. Att'y Gen. 2007-323 had established that such forms are personnel records, not evaluation records. They don't try to evaluate the employee; they just memorialize an administrative action.

Common questions

What's the difference between a Form 19-125 and the evaluation memos in this case?

Form 19-125 is a state-government administrative form that records changes to an employee's status (hire, promote, demote, transfer, terminate). It exists to document that something happened, not to explain why. The evaluation memos here, by contrast, were created specifically to set out the employer's view of the employee's job performance and to support a discipline decision. That's the substantive difference: administrative versus evaluative purpose.

What did the AG mean by saying release was "required" rather than just "consistent with" FOIA?

Both forms of approval are favorable to release, but "required by" is stronger. It means the custodian could not lawfully have withheld these records. That matters if a third party (the former employee, for instance) tried to enjoin release. A "consistent with" finding might leave room for a different custodian to reach a different conclusion. A "required by" finding does not.

Was the public interest in the AHTD records that strong?

The opinion does not detail the underlying conduct, but the AG said "given the matters addressed in the records, it seems clear to me that there is a compelling public interest in the records." That's a judgment call based on the substance of the documents. AG opinions usually find a compelling public interest when serious misconduct, breach of public trust, or high-rank employees are involved.

What if the former employee challenges the disclosure decision?

The employee could file suit to enjoin release. Under A.C.A. § 25-19-105(c)(3)(B)(i), the AG's opinion is one piece of authority a court would weigh, but it isn't binding. The custodian's decision sits at the center; the former employee would have to convince a court that release wasn't consistent with FOIA after all. With an AG opinion saying release is "required," the former employee's path narrows considerably.

What does "finality" mean for the suspension vs. the termination?

The AG accepted that the suspension was final even though the termination's finality was disputed. That distinction matters because Element 2 of the evaluation-records test is "final administrative resolution of any suspension or termination proceeding." A finalized suspension satisfies that element even if termination proceedings are still pending. The records that formed the basis for the suspension are then eligible for release without waiting for the termination process to wrap up.

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. 2014-116
October 9, 2014

Crystal Woods, Division Head
Human Resources Division
Arkansas State Highway & Transportation Department
Post Office Box 2261
Little Rock, Arkansas 72203-2261

Dear Ms. Woods:

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 request is a timely follow-up to Opinion No. 2014-109. In that opinion, someone had requested the "personnel file" of a former employee, and the custodian noted that "the primary record in question appears to be the report (and any related documentation) which was attached to your Form 19-125 and used as the basis for" the former employee's suspension and ultimate termination. But because I was not provided with any of the records in question nor informed of the custodian's decisions, I was not able to perform my statutory charge.

You write to fill-in these gaps. You have provided me with four documents that you classify as employee-evaluation records and that you believe must be disclosed pursuant to the FOIA. You ask whether these decisions are "not only consistent with, but required by, the FOIA."

RESPONSE

Based on my review of the four documents in dispute, it seems clear that three are employee evaluations and one is a personnel record. Based on the information you have conveyed to me, together with information gleaned from the four documents, it is my opinion that the test for disclosure of all four records has been met and that, therefore, your decision to release the records is consistent with (indeed, required by) the FOIA.

DISCUSSION

In the interest of brevity, I will refrain from setting out all the FOIA's definitions and tests related to personnel records and employee evaluations. Instead, I will direct your attention to the prior opinion (Opinion No. 2014-109) for a discussion of those topics. In what follows, I will simply assume a general knowledge of those topics and move straight to applying those rules to the custodian's decisions, supplementing that application with additional discussion of the FOIA rules as needed.

When custodians field FOIA requests for personnel or employee-evaluation records, they must make two decisions. 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 the record be disclosed.

You have conveyed the following four records, all of which you classify as employee-evaluation records:

• A document entitled Form 19-125, which gives basic personnel information about the subject of the records including her change in status;
• A letter dated September 8, 2014;
• A multi-page report dated September 2, 2014; and
• A letter of termination dated September 15, 2014.

In my opinion, you have correctly classified the latter three as employee evaluations. But, in my opinion, the first record is a personnel record because it seems to have been created to memorialize administrative actions, not record the grounds for disciplinary action. This office has opined that such "change-of-status" forms are personnel records.

As noted above, after classifying the documents, the custodian must move to the next question, whether the relevant test for disclosure requires that the documents be disclosed.

The first document identified above, which is a personnel record, must be disclosed unless doing so constitutes a clearly unwarranted invasion of personal privacy. This test, in my opinion, requires that this specific document be disclosed.

The three employee evaluations cannot be released 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).

Though the records say nothing of a suspension, they clearly reflect a termination. Additionally, your opinion request says that these records also formed the basis for the former employee's suspension: "She was suspended and allowed to remain on leave without pay" for a period of time. Though I understand that there is some dispute about whether her termination has become final, the suspension has become final. Therefore, Elements 1 and 2, above, are clearly met. And you say that the records formed the basis for the suspension, thus meeting Element 3. Given the matters addressed in the records, it seems clear to me that there is a compelling public interest in the records, thus meeting Element 4. Therefore, the FOIA requires that the employee evaluations be disclosed.

Therefore, I conclude that your decision to release these four documents is consistent with the FOIA.

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

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh