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 asked the AG to review a request by the subject of a subordinate employee's harassment complaint. The subject wanted the documents submitted with the complaint while the city's investigation was still underway. The custodian had classified them as job-performance records and asked whether their classification and the investigation's timing affected access.

The AG reviewed the records and said the city's decision to make access depend on whether the documents were employee-evaluation records was inconsistent with FOIA. The statute makes an employee's own personnel and evaluation records available to that employee even when exempt from public disclosure. The AG said the subject of a complaint would ordinarily have access to complaint documents on that basis.

For these particular records, the AG concluded they must be given to the requester with one redaction. If they were evaluation records, the employee could access his own records. If they were personnel records, the AG found that disclosure generally would not be a clearly unwarranted invasion of privacy. A portion of one record relaying another named employee's statement about a meeting had to be redacted under the personnel-records test. The AG left the precise classification to the custodian because the record did not show whether the documents were created at a supervisor's direction during an investigation.

Currency note

This opinion was issued in 2014. Verify the current FOIA and later decisions before relying on its treatment of a particular request.

Common questions

Does an open investigation itself settle whether the subject can see complaint documents?
The AG declined to answer the custodian's timing question as a general rule. For the records he reviewed, he found that the subject's access did not depend on their classification and directed disclosure with one redaction.

Can the employee receive records that the public cannot?
The opinion quotes the subject-access provision: personnel or evaluation records exempt from public disclosure are nonetheless available to the person about whom they are maintained. The AG said complaint subjects ordinarily have access under that provision.

Why was part of a record redacted?
It relayed a statement by another named employee about a particular meeting. The AG found that portion had to be redacted under the personnel-records privacy test. He did not describe the underlying statement.

Did the AG decide whether these were evaluation records?
No. He said that classification would depend on whether they were created at the direction of the complainant's supervisor following a decision to investigate, a fact the custodian had to determine.

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