Can a journalist get a former public employee's annual performance evaluations under the Arkansas FOIA?

Plain-English summary

Janelle Lilley, a KATV journalist, filed an Arkansas FOIA request for the "yearly performance evaluations" of a former college professor who had been terminated. The custodian withheld the records, saying the evaluations were "kept private." Lilley invoked her right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's decision was consistent with the FOIA.

AG Dustin McDaniel sided with the custodian. The reasoning:

1. Annual performance evaluations are "employee evaluation or job performance records" under A.C.A. § 25-19-105(c)(1). The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, defined those records as ones (1) created by or at the employer's behest, (2) to evaluate the employee, (3) that detail performance or lack of performance on the job. Annual evaluations clearly fit.

2. The FOIA does not release these records by default. They become public only when all four conditions are met: the employee was suspended or terminated, the disciplinary proceeding has reached final administrative resolution, the records "formed a basis" for the discipline, and there is a compelling public interest in disclosure.

3. The custodian determined the evaluation did not cause the termination. Once the custodian makes that "basis" determination, the records stay closed. The AG flagged the limit of his role: "Whether that determination is accurate is a question of fact that this office is neither authorized nor equipped to investigate when issuing opinions."

4. Assuming the custodian's factual call holds, withholding is consistent with the FOIA. A challenger who thought the custodian's basis call was wrong would have to litigate the factual question.

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

Are public employee performance evaluations ever public under the Arkansas FOIA? At the time of this opinion, yes, but only narrowly: the evaluation had to have formed the basis for the employee's suspension or termination; the disciplinary action had to be administratively final; and there had to be a compelling public interest in disclosure.

Who decides whether an evaluation "formed a basis" for termination? The custodian of records makes the initial call. The AG does not review the factual accuracy of that call in an advisory opinion. A requester who disputes the call would have to go to court.

What is the difference between "personnel records" and "employee evaluation records"? At the time of this opinion, "personnel records" (A.C.A. § 25-19-105(b)(12)) were presumed public unless disclosure would be a clearly unwarranted invasion of personal privacy. "Employee evaluation or job performance records" (A.C.A. § 25-19-105(c)(1)) were presumed confidential unless all four release conditions were met. The two categories were treated as mutually exclusive.

What records typically count as personnel records?
The opinion cites the standard list: employment applications, transcripts, payroll-related documents, transfer records, insurance forms, performance evaluations, recommendation letters, disciplinary records, leave requests, certificates of advanced training, and legal documents like subpoenas.

Why couldn't the AG just look at the evaluation and decide? The AG's advisory-opinion role under the FOIA is limited to legal questions, not factual investigation. The AG noted that disputed factual determinations have to be resolved through the courts, not through an AG opinion.

Background and statutory framework

Arkansas FOIA, A.C.A. § 25-19-101 et seq., grants broad public access to government records, with specific exemptions. Two of those exemptions covered employees:

• A.C.A. § 25-19-105(b)(12): personnel records, releasable unless disclosure would be a clearly unwarranted invasion of personal privacy.
• A.C.A. § 25-19-105(c)(1): employee evaluation or job performance records, releasable only "upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

A.C.A. § 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject of personnel or employee evaluation records the right to seek an AG opinion on whether the custodian's release decision is consistent with the FOIA. The opinion is advisory, not binding, but it serves as a quick check on close calls.

Thomas v. Hall established the three-part test for "employee evaluation or job performance records" and reaffirmed the office's view that internal misconduct investigations can fall into the same category.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2009) (request for AG opinion on custodian decision)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records exemption)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (four-part release test)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee evaluation records)
• Op. Att'y Gen. Nos. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 93-055 (employee evaluation framework)
• Op. Att'y Gen. 2008-065 (four-part release test)
• Op. Att'y Gen. 97-368 (personnel file contents)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (5th ed., 2009)

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. 2014-024

March 5, 2014

Janelle Lilley

KATV, LLC

Post Office Box 77

Little Rock, Arkansas 72203

Dear Ms. Lilley:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). The basis for your request is A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2009), 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 states that you have submitted a FOIA request for the “vearly performance evaluations” of a former college professor who was terminated from employment. The custodian responded to your request by stating that “the performance evaluations are kept private.” You object to this response and ask me to evaluate whether it is consistent with the FOIA.

The custodian has submitted to my office further information to explain the decision to not disclose the requested document(s). The custodian refused to disclose a performance evaluation because, according to the custodian, it did not form the basis for the former employee’s termination.

RESPONSE

Annual performance evaluations of public employees conducted by their supervisors/employers are considered employee evaluation records for purposes of the FOIA. Such a record cannot be released unless, among other things, it formed

323 CENTER STREET, SUITE 200 * LrtTLe Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

Janelle Lilley
Opinion No. 2014-024
Page 2

the basis for the employee’s suspension or termination. The custodian has determined that the evaluation in question did not form the basis for the former employee’s termination. Whether that determination is accurate is a question of fact that this office is neither authorized nor equipped to investigate when issuing opinions. Assuming, however, that the evaluation did not form the basis for the employee’s termination, then the custodian’s decision to withhold it is consistent with the FOIA.

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. Because the only dispute here seems to be whether any exceptions require the document be withheld, I will focus my analysis on that point.

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.

' This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. £.g. Op. Att’y Gen. 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).

? A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter.... [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

7 A.C.A, § 25-19-105(c)(1): “Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.”

Janelle Lilley
Opinion No. 2014-024
Page 3

Because both the requester and the custodian seem to agree that-the request seeks “employee evaluation or job performance records,” I will limit my analysis to that specific exception.

When custodians assess whether a public record qualifies as an employee evaluation, they must make two determinations. First, they must determine whether the record meets the definition of an employee evaluation. The second potentially relevant exception is for “employee evaluation or job performance records,” which the FOIJA likewise does not define. 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 exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” Annual job-performance evaluations conducted by a public employee’s employer clearly qualify as “employee evaluation or job performance records.”

If a public record meets the foregoing definition, then it 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).°

As noted above, the custodian has determined that the employee evaluation being withheld did not form the basis for the former employee’s termination. If that is true, then the FOJA prohibits the evaluation’s release. Whether that is true is a

• Thomas y. Hall, 2012 Ark. 66, 399 S.W.3d 387; see, e.g., Op. Att’y Gen. Nos. 2009-067; 2008-
  004; 2007-225; 2006-038; 2005-030; and 93-055.

> Td.

© A.C.A. § 25-19-105(c)(1) (Supp. 2013); Op. Att’y Gen. 2008-065.

Janelle Lilley
Opinion No. 2014-024
Page 4

question of fact that I am not equipped or authorized to assess. Therefore, assuming that the evaluation did not form the basis for the employee’s termination, then the custodian’s decision to withhold the document 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