When does Arkansas FOIA require disclosure of a school employee's settlement agreement, and what redactions are allowed?

Plain-English summary

This is a follow-up to Op. Att'y Gen. 2014-027. After that opinion, the custodian (a school district attorney) received two new FOIA requests seeking an unredacted copy of a public school employee's settlement agreement plus all related communications. The custodian gathered 135 pages of records, proposed targeted redactions, and asked the AG to review whether the redactions were consistent with the Arkansas Freedom of Information Act. AG Dustin McDaniel concluded that:

1. The single redacted paragraph in the settlement agreement, which the custodian wanted to keep redacted under the personnel-records exception, must be disclosed. The Arkansas Supreme Court's two-step balancing test for personnel records favors disclosure, and the General Assembly has signaled a strong public interest in the terms of public-entity settlement agreements through A.C.A. § 25-18-401.

2. Most of the other redactions were proper, but a few specific ones were not. The AG identified each problematic page by Bates number.

3. The AG's statutory review authority under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to the personnel-records and employee-evaluation exceptions. He could not opine on the custodian's alternative reliance on the education-records (FERPA) exception in A.C.A. § 25-19-105(b)(2) for the same paragraph.

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.

What the AG concluded, item by item

The settlement agreement (paragraph redaction).
The AG had questioned this redaction in his earlier opinion. The custodian repeated his view that the paragraph should stay redacted, this time citing both the personnel-records exception and the FERPA-incorporating education-records exception. The AG could only address the personnel-records side under his statutory review authority. He concluded the personnel-records balancing test does not support redaction. The paragraph contains "sensitive" information but not the kind of "humiliating, extremely embarrassing, or extremely personal information" needed to overcome the strong public interest in the terms of a settlement, especially given A.C.A. § 25-18-401's prohibition on secret public-entity settlements.

Page 4: Public employee's cell phone number.
Personal cell phone numbers are not disclosable under FOIA. The AG noted the custodian should confirm whether the number is a work phone (disclosable) or personal phone (not disclosable) before releasing it.

Page 21 and 22: Personal email address.
The personal email address of a public employee must be redacted under A.C.A. § 25-19-105(b)(12) and (b)(13). The employee's name itself is fine to leave unredacted.

Pages 60-69: Employee evaluations.
Created by the employer to evaluate the employee. Because the employee being evaluated was not suspended or fired, the records cannot be disclosed under the employee-evaluation exception (citing Op. Att'y Gen. 2013-155).

Pages 73-78: Possible employee evaluations.
The custodian needs to determine whether the records were created by (or at the behest of) the employer. If yes, they are employee evaluations of the complained-about employee and are exempt because the suspension/termination threshold has not been met.

Page 79: Indeterminable redactions.
The AG could not opine because, unlike the other proposed redactions, he could not tell from the proposal what was redacted.

Page 108: Two redactions without basis.
"[T]here is no basis for these two redactions" on the face of the record.

Page 131: Indeterminable record.
The AG could not determine what the record is or how to classify it.

Common questions

Q: What is the two-step balancing test the AG applied?
First, does the information have a greater-than-de-minimis privacy interest because it is personal or intimate in nature? Second, if so, is that privacy interest outweighed by the public's interest in disclosure, measured by whether disclosure would shed light on a public entity's performance of its statutory duties or otherwise let citizens know "what their government is up to" (Dept. of Defense v. FLRA, 510 U.S. 487 (1994))? Arkansas courts apply this test "with a thumb on the scale favoring disclosure."

Q: Why does A.C.A. § 25-18-401 matter so much in this context?
That statute prohibits any public official from agreeing to keep all or part of a litigation settlement agreement secret. The AG read it as a legislative declaration that the public has a significantly increased interest in seeing settlement terms when a public entity is a party. That heightened interest pushes the balancing analysis toward disclosure even for sensitive content.

Q: Why can't the AG review the FERPA / education-records redaction?
Because A.C.A. § 25-19-105(c)(3)(B)(i) gives the AG review authority only over decisions about "personnel records" and "employee evaluation records." The education-records exception in A.C.A. § 25-19-105(b)(2) is outside that statutory review scope.

Q: What is the threshold for releasing employee evaluation records?
The employee being evaluated must have been suspended or fired (among other prerequisites). Without that trigger, the records stay confidential.

Q: When is a public employee's personal contact information disclosable?
Generally, it is not. The AG cited A.C.A. § 25-19-105(b)(12) (the personnel-records exception applied to personal contact details) and § 25-19-105(b)(13) for the proposition that personal cell phones and personal email addresses must be redacted. Work-issued cell phones and official work email addresses are different.

Background and statutory framework

The Arkansas FOIA balancing test for personnel records sits on top of A.C.A. § 25-19-105(b)(12). The Arkansas Supreme Court in Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) laid down the two-step test the AG applied here, quoting the U.S. Supreme Court's framing in Dept. of Defense v. FLRA, 510 U.S. 487 (1994). The General Assembly's intervention through A.C.A. § 25-18-401 to ban secret public-entity settlements is a deliberate thumb on the disclosure side of the scale.

Op. Att'y Gen. 2014-027 (the predecessor to this opinion) contains the underlying discussion of the FOIA's personnel-record and employee-evaluation rules. Op. Att'y Gen. 2013-155 is the cited source for the rule that employee evaluations are not disclosable unless the employee was suspended or fired.

Citations

Statutes

• A.C.A. § 25-19-105 (Arkansas FOIA exemptions)
• A.C.A. § 25-19-105(b)(2) (education records, incorporating FERPA)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(b)(13) (further personnel/contact info exception)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion authority over custodian decisions)
• A.C.A. § 25-18-401 (prohibition on secret public-entity settlements)

Cases

• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Arkansas Supreme Court)
• Dept. of Defense v. FLRA, 510 U.S. 487 (1994) (U.S. Supreme Court)

Prior AG opinions

• Op. Att'y Gen. Nos. 2014-027, 2013-155

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. 2014-038

April 4, 2014

George R. Spence
121 South Main Street
Bentonville, Arkansas 72712

Dear Mr. Spence:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 request relates to a recently issued Attorney General Opinion — No. 2014-027. After I issued that opinion, you received two additional FOIA requests. Both requesters seek an unredacted copy of the settlement agreement that was partially addressed in Opinion No. 2014-027. One of the requesters also seeks "copies of all documents hard copy or email that reference [a certain public employee] during the period of Oct. 31 to the time that this request is processed." The other requester seeks access to the "[s]ettlement terms and emails documenting the discussion between Superintendent Dr. Paul Hines and" the public employee.

In response to these requests, you have gathered two sets of records, which you have attached to your request for my review. As to the first, you intend to disclose the settlement agreement in redacted form. This settlement agreement was addressed in Opinion No. 2014-027 where I opined that the custodian had correctly categorized the document as a whole as the employee's personnel record. But I questioned a redaction from the Settlement Agreement. You have now submitted an unredacted copy for my review. You continue to believe that the originally redacted portion of the record must remain redacted, though your basis for this belief has changed. Originally, you cited the personnel records balancing test, but you have now added a citation to A.C.A. § 25-19-105(b)(2), which exempts from disclosure all public records that qualify as "education records" under the Family Education Rights and Privacy Act of 1974 ("FERPA").

The second set of records is presumably responsive to the request for "copies of all documents...that reference [the employee]." You have gathered the records you believe to be responsive to this request, attached them to your correspondence, indicated which records you believe to be wholly exempt, and you have helpfully indicated in highlights which discrete pieces of information you believe should be redacted from records that are otherwise disclosable.

You ask whether the foregoing decisions are consistent with the FOIA.

BRIEF RESPONSE

Before directly and briefly assessing the custodian's two decisions, I must make two preliminary points. First, pursuant to A.C.A. § 25-19-105(c)(3)(B)(i), I am statutorily obligated to review a custodian's decision with respect to the release of "personnel records" and "employee evaluation records." Second, with respect to the Settlement Agreement, the custodian has relied on the exception for personnel records (i.e., A.C.A. § 25-19-105(b)(12)) and the exception for education records (i.e., A.C.A. § 25-19-105(b)(2)). Given the scope of my review, I am unable to assess the propriety of the custodian's decision regarding the education-records exception.

Having reviewed the unredacted records you have attached, I conclude (1) that the personnel-records exception does not require that the custodian redact the provision in the Settlement Agreement; and (2) that, with regard to the remaining records, though the custodian has clearly made a thorough and conscientious effort to apply the relevant exceptions to disclosure, a few decisions are, in my opinion, inconsistent with 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 Opinion No. 2014-027 for a discussion of those topics. I will move straight to applying those rules to the custodian's decisions, supplementing that application with additional discussion of the FOIA rules as needed.

The Settlement Agreement

As I noted in the prior opinion, the custodian, in my opinion, has correctly classified the Settlement Agreement, as a whole, as a personnel record. In the earlier opinion, I questioned the custodian's decision to redact a paragraph in the Settlement Agreement based on the personnel-records balancing test. The custodian continues to assert his view that the paragraph should be redacted under the personnel-records balancing test and (now adds) under A.C.A. § 25-19-105(b)(2), which exempts from disclosure certain education records. As noted above, my review under section 25-19-105(c)(3)(B)(i) extends to the applicability of the exemptions for personnel records (i.e., -105(b)(12)) and employee evaluations (i.e., -105(c)(1)). Therefore, I make no assessment of whether the custodian's reading of -105(b)(2) is correct. Instead, I will focus solely on the custodian's determination regarding the personnel-records exception.

In my opinion, the custodian has incorrectly determined that the personnel-records exception requires the paragraph at issue to be redacted. As explained in Opinion No. 2014-027, after classifying a document as a personnel record, a custodian must disclose the document unless doing so constitutes a clearly unwarranted invasion of personal privacy. According to the Arkansas Supreme Court, 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. You have not given any indication about why you think this balancing test tips in favor of nondisclosure.

The first step of the test is to determine whether the information at issue is of a personal or intimate nature such that it gives rise to a greater than de minimus privacy interest. I think there is no question that there is a greater than de minimus privacy interest in the paragraph at issue.

Thus, we must move to the next step in the analysis which assesses whether the privacy interest is outweighed by the public's interest in disclosure. The public's interest is measured by the extent to which disclosure of the information sought would "shed light on a[] [public entity's] performance of its statutory duties" or otherwise let citizens know "what their government is up to." Further, as I indicated in Opinion No. 2014-027, the General Assembly has indicated that the public has a significantly increased interest in the terms of a settlement agreement to which a public entity is a party.

There is no question that the settlement agreement sheds light on the workings of a public entity. This is also true of each term of the settlement agreement. Additionally, in light of A.C.A. § 25-18-401, the public has an extremely high interest in this settlement agreement/personnel record. As I noted in Opinion No. 2014-027, it is theoretically conceivable that this public interest could be overcome by some extremely private information. But the paragraph at issue here, though it is sensitive, does not contain the kind of humiliating, extremely embarrassing, or extremely personal information that (in my opinion) would be weighty enough to overcome the significant public interest that is grounded in section 25-18-401.

Therefore, in my opinion, the personnel-records exception is not a basis for redacting the paragraph at issue.

The Remaining Records

Most of the custodian's decisions regarding these records are consistent with the FOIA. In what follows, I will point out the few decisions that I believe to be inconsistent with the FOIA. I have Bates stamped the 135 pages of records for easier reference. When discussing specific pages, I will refer to the Bates numbers I have applied to the documents.

As will be clear in what follows, some of the records are employee evaluation records. This includes any record created by or at the behest of the employer to evaluate an employee. Such records cannot be disclosed unless, among other things, the employee being evaluated was suspended or fired.

• Page 4: This page contains the cell phone number of a public employee. Personal cell phone numbers are not disclosable under the FOIA. So you should ensure this is a work cell phone before releasing the number.

• Page 21: This page contains an unredacted copy of the personal email address of a public employee. It should be redacted pursuant to A.C.A. § 25-19-105(b)(12) and -105(b)(13). This same address should also be redacted (while leaving the name) each time it occurs on page 22.

• Pages 60-69: These are employee evaluations because they were all clearly created by the employer to evaluate the employee. Because the employee was not suspended or fired, the records should be withheld from disclosure pursuant to the employee-evaluation exception.

• Pages 73-78: The custodian should consider whether these records were created by the employer or at the employer's behest. If so, then the records are employee evaluations of the employee being complained about; and they are exempt from disclosure because the threshold test for disclosure of such records (i.e. suspension or termination) is not met.

• Page 79: I cannot opine on the propriety of the redactions on this page because, unlike the other proposed redactions, I cannot determine what has been redacted.

• Page 108: As far as I can determine from the face of this record, there is no basis for these two redactions.

• Page 131: I cannot determine from the face of this record what it is or how to classify it.

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

Sincerely,

DUSTIN MCDANIEL
Attorney General

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