Under the Arkansas FOIA, must a city release internal complaint records to an employee who is the subject of a harassment complaint while the investigation is still ongoing?

Plain-English summary

The City of Little Rock's Labor and Employee Relations Manager, Sharre Brooks, asked the AG about an FOIA request from a subject of a harassment complaint who wanted copies of the complaint documents. The subject was the supervisor; the complainant was a subordinate employee; the City was still conducting its internal investigation. The custodian had classified the documents as "job performance records" and was asking whether they had to be released to the requester during the ongoing investigation.

AG Dustin McDaniel pushed back on the framing of the question. The opinion-request statute authorizes the AG to review the custodian's release decision, not to answer general legal questions. But the AG used the analytical room to explain that the custodian's whole approach to the question was off: she had focused on the employee-evaluation-records test (which generally requires final administrative resolution plus compelling public interest), but A.C.A. § 25-19-105(c)(2) gives any public employee a separate route of access to personnel and evaluation records about themselves: "Any personnel or evaluation records exempt from disclosure under [the FOIA] shall nonetheless be made available to the person about whom the records are maintained."

So the subject of the complaint had a right to the records as the person about whom they were maintained, regardless of whether the underlying classification was personnel or evaluation. The pending status of the investigation did not matter to that access right.

The AG limited his analysis to the personnel-records exception, because the access via § 25-19-105(c)(2) was clearer and avoided the evaluation-records analytical detour. Under the personnel-records framework, the question becomes whether release would be "a clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. The AG reviewed the records and concluded the balance favored release, with one specific redaction: a portion of one record that quoted another named employee's statement in connection with a particular meeting. That portion implicated a privacy interest belonging to the third-party employee, not to the complainant or the subject, and the personnel-records test there favored redaction.

Net result: the records had to go to the requester (the subject of the complaint) with one redaction, regardless of whether they were employee-evaluation records.

The opinion clarifies that the AG's role under § 25-19-105(c)(3)(B)(i) is review of the custodian's decision, not answering preliminary questions. The AG declined to answer the custodian's specific yes/no questions and instead addressed the decision itself.

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

Why does the subject of a complaint get access even before the investigation closes?
A.C.A. § 25-19-105(c)(2) creates a categorical access right for "the person about whom the records are maintained." There is no investigation-pending exception built into that subsection. So timing does not matter for the subject's right; it only matters for the public's right to the same records, which depends on the underlying personnel/evaluation classification and (for evaluation records) final administrative resolution.

What is the Young v. Rice balancing test?
A two-step test for whether release would be a "clearly unwarranted invasion of personal privacy" under the personnel-records exemption. Step 1: is the information of a personal or intimate nature giving rise to more than a de minimis privacy interest? Step 2: if yes, is the privacy interest outweighed by the public interest in disclosure (measured by whether disclosure would shed light on agency conduct or let citizens know what government is doing)? The thumb is on the scale favoring disclosure.

Why was the third-party employee statement redacted?
Because the balancing under Young v. Rice favored privacy for that portion. The AG does not give detail (the opinion is brief on the actual redaction), but the implication is that the third-party employee's identifiable statement in connection with a specific meeting created a privacy interest greater than the public interest in disclosure.

Could the complainant herself have blocked release to the subject?
Not under this opinion. The opinion's analytical move is that the records are also "personnel records" of the subject (the person about whom they are maintained for FOIA purposes), and the subject has a categorical right to them. The complainant's wishes do not change that.

What if the records had not been classified as employee-evaluation records?
The AG says the analysis would have been simpler, going straight to the personnel-records test under Young v. Rice. The result, on these facts, would have been the same: release with one redaction.

Does this opinion mean public employees can always get pre-resolution access to disciplinary records about themselves?
Yes, for records "about" them under § 25-19-105(c)(2). The opinion confirms that the subject-access right operates independently of the employee-evaluation timing rule that governs the public's access.

Background and statutory framework

The Arkansas FOIA splits employment-related records into two categories. Personnel records (A.C.A. § 25-19-105(b)(12)) are presumptively open except where disclosure would be a clearly unwarranted invasion of personal privacy. Employee evaluation or job performance records (A.C.A. § 25-19-105(c)(1)) are presumptively closed except on final administrative resolution of a suspension or termination, where the record formed a basis for the decision, and where a compelling public interest exists.

A.C.A. § 25-19-105(c)(2) is the subject-access provision: any personnel or evaluation record exempt from public disclosure is still made available to the person about whom it is maintained. This subsection operates regardless of the underlying classification and regardless of timing in the disciplinary process. It is the reason the AG could short-circuit the complicated classification question in this case.

The Young v. Rice balancing test (1992) is the canonical Arkansas standard for the personnel-records exception. It is structured to put a thumb on disclosure: de minimis privacy interests yield to disclosure automatically; substantial privacy interests can yield to substantial public interests in disclosure (which the Arkansas Supreme Court has measured by reference to the federal Department of Defense v. FLRA standard about what government is "up to").

The AG explicitly limits his role to reviewing the custodian's decision. The custodian had treated the case as governed by the evaluation-records test. The AG took the position that the case was actually governed by the subject-access provision plus a personnel-records analysis of one third-party-statement portion. That reframing made the answer simpler and more favorable to the requester.

Citations

• A.C.A. § 25-19-103(5)(A) (Supp. 2013) (definition of "public records")
• A.C.A. § 25-19-105(b)(12) (Supp. 2013) (personnel records exemption)
• A.C.A. § 25-19-105(c) (employee evaluation records framework)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (evaluation records timing rule)
• A.C.A. § 25-19-105(c)(2) (Supp. 2013) (subject access provision)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request mechanism)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel-records balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (public interest standard)
• Department of Defense v. FLRA, 510 U.S. 487 (1994) (public interest framework)
• Op. Att'y Gen. 99-147, 2014-084, 2013-088 (related AG opinions on personnel records)

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. 2014-126

November 14, 2014

Sharre A. Brooks
Labor and Employee Relations Manager
City of Little Rock
500 W. Markham, Room 130W
Little Rock, Arkansas 72201-1427

Dear Ms. Brooks:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records' custodian, 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 correspondence indicates that the City has received a FOIA request from the subject of a harassment complaint filed by a subordinate employee. Specifically, the subject of the complaint has requested "copies of the information submitted with a verbal harassment complaint made by [complainant] against me." You state that the City is currently conducting an internal investigation into the allegations. You have provided a copy of the documents submitted by the complainant, which you "have determined . . . are 'job performance records' which were 'created in connection with investigations into alleged employee misconduct.'" You seek my opinion on whether the documents have been properly categorized as job performance records, and if so, whether they must be provided to the requestor "because he is 'the person about whom the records are maintained.'" You have also asked "whether the City is required to provide the requestor the requested documents prior to the final resolution of the investigation."

RESPONSE

An opinion of this office issued pursuant to A.C.A. § 25-19-105(c)(3)(B)(i) is limited to reviewing the custodian's decision with respect to the release of employee-evaluation records and personnel records. Strictly speaking, I am not authorized to address specific questions posed by the custodian, subject, or requester. While I must therefore decline to answer your specific questions, I will address the decision you have made regarding the records at issue; and I will discuss the pertinent provisions of the FOIA bearing on these records. In sum, your letter suggests that you have decided the requester's access to the records turns on whether they are properly categorized as employee-evaluation records. In my opinion, that decision is not consistent with the FOIA. As explained further below, it is my opinion that these records must be provided to the requester, with one redaction, regardless of whether they constitute employee-evaluation records.

DISCUSSION

I. General standards governing disclosure.

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. As for the first element, the documents are held by the City, which is a public entity. As for the second element, the FOIA defines "public record" as:

writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

The documents at issue clearly qualify as public records. Therefore, in my opinion, these documents are public records and must be disclosed to the requester unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions the FOIA exempts from public disclosure two separate groups of employee-related records: "personnel records" and "employee evaluation or job performance records." The test for whether these two types of documents may be released publicly differs significantly.

Most complaints against public employees are either the personnel records or employee-evaluation records of the person being complained about. Subsection 25-19-105(c) of the FOIA specifically authorizes a public employee to gain access to his or her own personnel records and employee-evaluation records: "Any personnel or evaluation records exempt from disclosure under [the FOIA] shall nonetheless be made available to the person about whom the records are maintained . . . ."

Accordingly, given your statement that the documents in question were submitted by the complainant in connection with a harassment complaint, one might reasonably assume even without reviewing the records that their categorization as employee-evaluation records may not be dispositive of whether they must be made available to the subject of the complaint. The subject of a complaint would ordinarily have access to complaint documents pursuant to A.C.A. § 25-19-105(c)(2). Indeed, having reviewed the records at issue, it is my conclusion that the only question in this instance is whether any portion of the records constitutes a personnel record of another employee, such that redactions may be necessary based on that exception. I will therefore limit my discussion to the personnel records exception and will not further discuss in any detail the employee-evaluation 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.

III. Application.

We can now apply the foregoing to the documents you have attached. You have categorized them as employee-evaluation records. That decision is consistent with the FOIA if the records were created at the behest of the complaining employee's supervisor as a result of a decision to investigate the complaint. You must make that factual determination, as it is not clear from the face of the records whether they meet these criteria. But more importantly, in my opinion, the requester's access to these records does not depend upon them being employee-evaluation records. Obviously, as noted above, an employee has access to his or her own evaluation records. But even if the records in this case do not fall into that category, my review indicates that they would be subject to release as personnel records (with one redaction), although one record may simply be a non-exempt public record. With one exception, it is my opinion that the records' release would not constitute a clearly unwarranted invasion of the personal privacy of either the complainant or any other employees mentioned in the records. The exception is that portion of one record relaying a statement by another named employee in connection with a particular meeting. In my opinion, this portion must be redacted based on the personnel records test set out above.

In sum, therefore, your letter suggests that you have decided the requester's access to the records turns on whether they are properly categorized as employee-evaluation records. In my opinion, that decision is not consistent with the FOIA. It is my opinion that the records at issue must be provided to the requester, with one redaction, regardless of whether they constitute employee-evaluation records.

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

Sincerely,

DM/EAW:cyh