Can a former Arkansas public employee block release of her termination letter under FOIA, and can she get her own personnel and evaluation records from her former employer?

Plain-English summary

Former Arkansas Psychology Board employee Sheila Pauley asked the AG about two requests for her employment records. An outside requester sought her personnel file; the custodian released a termination letter and unspecified unemployment information. Pauley objected on privacy grounds. Pauley also requested her own personnel file and a personal file she said she kept at work, but reported receiving only some records.

The AG could not review the outside disclosure. The letter and unemployment information had already been released. Under the opinion-request procedure, an authorized person must request AG review before release, and the custodian must wait for the opinion before releasing the records.

For Pauley's own request, the AG gave a general rule: current and former public employees may receive their own personnel and evaluation records, including records exempt from public disclosure. He said Pauley was entitled to copies of those records. Because he had not seen the actual documents, he could not decide whether the custodian had complied or whether her separate “personal file” qualified.

Currency note

This opinion was issued in 2014. Check current FOIA law and the records at issue before applying it.

Common questions

Can a former public employee obtain her own personnel and evaluation records? Yes. The AG quoted the FOIA provision requiring records exempt from public disclosure to be made available to the person about whom they are maintained or that person's representative.

Can the AG review a disclosure after the records are released? The AG said no in this case. An opinion request under the cited procedure must be made before release, and the custodian must wait for the opinion.

Did the AG decide Pauley's constitutional privacy objection? No. Because the outside requester already received the documents, the AG did not review that release.

Did he decide whether Pauley should have received her entire personal file? No. He had not seen the records and could not determine whether the custodian met the FOIA requirements for her own request.

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. 2014-047
May 2, 2014

Ms. Sheila E. Pauley
c/o Arkansas Psychology Board
101 East Capitol Avenue, Suite 415
Little Rock, Arkansas 72201

Ms. Pauley:

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 correspondence indicates that you are seeking my opinion on the custodian's response to two FOIA requests for your employment records. The first request was from someone, as you say, whose "name, organization, or contact information" you were never given. That requester seeks a copy of your "personnel file." You say that the custodian communicated to you that she intends to disclose a copy of your "termination letter" and unspecified "unemployment information." You object to the release of these documents because you say that you have a "personal, open legal issue not related to [your] employment," and you think this legal issue gives rise to a constitutional right to privacy that would "supersede any disclosure" obligation.

The other FOIA request for your employment records was made by you. You say that you are a former public employee who made a FOIA request for your "personnel file" and for a "personal file" that you maintained in your office. The "personal file" contained "documentation" relating to overtime you worked. You say that you received only a few documents from your personnel file and that you never received the "personal file." You ask whether these decisions are consistent with the FOIA.

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, I cannot opine about the release of any specific documents. Further, because the termination letter and "unemployment information" have already been released to the requester, I cannot evaluate that decision. When an authorized person under 25-19-105(c)(3)(B)(i) requests my opinion, that request must take place before the custodian releases the documents and the custodian must wait to release the records until my opinion has been issued. Therefore, a review of the custodian's decision regarding the first request is beyond the scope of this opinion.

I can, however, speak generally about the custodian's decision regarding your own request. The FOIA authorizes current and former public employees to receive their own personnel and evaluation records: "Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative." Therefore, you are entitled to copies of your personnel records and your evaluation records. Because I have not seen the records at issue, I cannot say whether the custodian has complied with the FOIA when releasing these records to you.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/RO:cyh