Under Arkansas FOIA, can a school district withhold documents that formed the basis for firing a teacher who worked daily with students?

Plain-English summary

A reporter at the Benton County Daily Record submitted a FOIA request to the Bentonville School District for the personnel file of a teacher who was also the ninth-grade football coach and an assistant boys' track coach. The school board had upheld his termination on October 15, 2014. The district released part of the file but withheld the documents that "formed the basis of the decision to terminate," citing the personnel-records exemption in A.C.A. § 25-19-105(b)(12).

The reporter asked the AG whether that nondisclosure decision squared with FOIA. The AG said he could not opine on specific documents he had not seen, but he flagged a threshold problem with the district's analysis: the records that formed the basis for firing a teacher may not have been "personnel records" at all. Under settled Arkansas case law, records created by the employer to evaluate the employee, or to document misconduct that led to discipline, are "employee-evaluation records" governed by a different test under A.C.A. § 25-19-105(c)(1). That test allows release if (1) the employee was suspended or terminated, (2) the proceeding is final, (3) the records formed the basis for the decision, and (4) there is a compelling public interest in disclosure.

The AG noted his office had "consistently opined that the public has a particularly compelling interest in the conduct of public school teachers and other school authorities during school hours, during school events, and especially when students are impacted." Because the fired employee had been a coach who "interacted with dozens if not hundreds of children daily," the compelling-interest element would likely be satisfied if the records were properly classified as evaluation records.

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, A.C.A. § 25-19-101 et seq., presumes that records held by public agencies are open. It then carves out two narrow exceptions for employment-related records:

• Personnel records (A.C.A. § 25-19-105(b)(12)) are exempt only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Under Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), the custodian applies a balancing test that weighs the requester's interest against the employee's, "with a thumb on the scale favoring disclosure."
• Employee-evaluation or job-performance records (A.C.A. § 25-19-105(c)(1)) cannot be released unless all four elements are met: suspension or termination, final administrative resolution, records formed the basis for the discipline, and compelling public interest.

The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's definition of employee-evaluation records: documents (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that detail the employee's performance or lack thereof on the job. Records of disciplinary action and investigations into misconduct fall within this category.

The compelling-public-interest factor is a question of fact. Watkins & Peltz, the leading commentators on Arkansas FOIA, identify three factors: the nature of the infraction (especially violations of public trust), the existence of a public controversy, and the employee's position. A general interest in public-employee performance is not enough; a link between a controversy, an agency, and an employee who breached the public trust generally is.

Common questions

Were the termination documents personnel records or employee-evaluation records?

The AG did not decide. He noted the district's custodian had classified them as personnel records. But complaint documents not solicited by the employer can be personnel records, while documents created by the employer to evaluate the teacher's job performance are evaluation records. A document's classification did not turn on whether it formed the basis for discipline; that question went to whether an evaluation record was releasable, not to whether the record qualified as an evaluation record in the first place.

Why does the classification matter?

Because the two tests are very different. A personnel record gets the Young v. Rice privacy-balancing test, which often favors disclosure but is intensely fact-specific. An evaluation record is presumptively closed unless all four conditions, including compelling public interest, are met. A reporter or member of the public challenging a denial needs to identify which test applies before arguing the merits.

What did the AG say about teachers and coaches specifically?

He pointed to Op. Att'y Gen. 2002-158 and other opinions for the proposition that the public has a particularly compelling interest in the conduct of school personnel during school hours and especially when students are involved. A high-level employee whose job involved daily contact with kids meets the kind of factor pattern that Watkins & Peltz say usually satisfies the compelling-interest test.

Did the AG order the records released?

No. The AG's review under A.C.A. § 25-19-105(c)(3)(B)(i) does not give him authority to order release. He can only opine on whether a custodian's decision is consistent with FOIA. Here, because he had not seen the records, he said only that a threshold classification question existed and that the compelling-public-interest factor would likely be met if the records were evaluation records.

What would a requester have done next?

If the district stood by its denial, the requester's avenue under Arkansas FOIA was a circuit-court action under A.C.A. § 25-19-107 seeking an order to compel production. The AG opinion would be persuasive but not binding on the court.

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. 2014-121

October 28, 2014

Mr. Dave Perozek
Education Reporter
The Benton County Daily Record
2540 N. Lowell Road
Springdale, Arkansas 72765

Dear Mr. Perozek:

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). 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 letter indicates that on October 15, 2014, the Bentonville School Board upheld the termination of a teacher who was also the ninth-grade football coach and assistant boys' track team coach. You state that you submitted a FOIA request to the School District for the former employee's "personnel file, including job performance and evaluation records," and that the District on October 21 "provided part of his file, but declined to release any documents that formed the basis of the decision to terminate...." You further report that the District's attorney "deemed those documents exempt [under A.C.A. § 25-19-105(b)(12)], which exempts 'personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.'" In apparent response to this determination, you note that the former employee "interacted with dozens if not hundreds of children daily." And you express your belief that "there is a compelling public interest in disclosure of the records involving his termination."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any of the records at issue and do not know the precise factual basis for the custodian's decision, I cannot opine about the disclosure of any specific document. However, I can opine, based upon your statements, that a threshold question likely exists as to the records' proper classification. I believe this will be clear from a review of the relevant tests for determining whether certain employee-related records are releasable under the FOIA. While I lack sufficient information to definitively opine on the classification issue, or the custodian's ultimate conclusion, the discussion below should be of some assistance.

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. I will focus my analysis on the third element.

There appears to be no issue regarding the first two elements, and they are presumably met with respect to the records in question.

1. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, 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 record be disclosed.

a. Personnel-records exception.

The FOIA does not define "personnel records," but this office has consistently opined that this term encompasses all records other than employee evaluation and job performance records that pertain to individual employees. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," but the Arkansas Supreme Court, in Young v. Rice, has provided some guidance. To determine whether the release of a personnel record would constitute a clearly unwarranted invasion of personal privacy, the court applies a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing takes place with a thumb on the scale favoring disclosure.

The balancing test elaborated by Young v. Rice has two steps. First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimus privacy interest. If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. The Arkansas Supreme Court has indicated that the public interest is measured by "the extent to which disclosure of the information sought would 'shed light on an agency's performance of its statutory duties' or otherwise let citizens know 'what their government is up to.'" If the public interest in this regard is substantial, it will usually outweigh any privacy interest.

b. Employee-evaluation exception.

The FOIA likewise does not define "employee evaluation or job performance records." But the Arkansas Supreme Court has recently adopted this office's view that the term refers to any 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. This definition encompasses, among other things, records of disciplinary action and letters detailing the reasons for disciplinary action. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated;
2. There has been a final administrative resolution of the suspension or termination proceeding;
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and
4. The public has a compelling interest in the disclosure of the records in question.

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

II. Application.

The first step, as noted above, is to categorize the records. It appears from your letter that the custodian in this instance has decided that the records he or she has declined to release constitute personnel records. You counter that decision with a reference to the former employees' significant daily interaction with children and your belief that there is "a compelling public interest in disclosure of the records involving his termination." As the foregoing discussion makes clear, the existence of a "compelling public interest" is part of the test for the disclosure of employee-evaluation records. Accordingly, your statements suggest you believe the records you have been denied access to fall into that category.

Although the basis for your position in this regard is somewhat unclear, you note that the District "declined to release any documents that formed the basis of the decision to terminate" the former employee. I have not seen the records and do not know the precise factual basis for the custodian's decision that they are exempt from disclosure under A.C.A. § 25-19-105(b)(12), the personnel records provision. As noted above, this office has consistently opined that § 25-19-105(b)(12) applies to records other than employee evaluation and job performance records that pertain to individual employees. A record that formed the basis for a termination decision could certainly meet this definition. For instance, complaint documents that were not solicited by the employer or generated as part of an investigation into an employee's conduct are generally properly classified as personnel records.

On the other hand, a document that formed the basis for an employee's termination might well constitute an employee-evaluation record, assuming it was created by or at the behest of the employer and that it details the employee's job performance. But it should be emphasized in this regard that a document's classification as an employee-evaluation record does not turn on whether it formed the basis for a disciplinary action. The latter inquiry (whether the record formed the basis for the employee's suspension or termination) is not part of the definition of employee-evaluation records. Rather, as noted above, it is one of the four elements that comprise the test for determining whether an employee-evaluation record is subject to release.

I cannot resolve this issue as to the documents' proper classification. I am simply not in a position to question the custodian's determination in that regard. Nor can I definitively opine on whether the records are subject to disclosure under the applicable test. I will note, however, that if any of the documents are in fact properly classified as employee-evaluation records, this office has consistently opined that the public has a particularly compelling interest in the conduct of public school teachers and other school authorities during school hours, during school events, and especially when students are impacted. It thus seems likely that the "compelling public interest" part of the test will be met in this instance as to any such records, if it is determined by a factfinder that such records exist.

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

Sincerely,
DUSTIN MCDANIEL
Attorney General

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