Could Saline County withhold a record from a former Circuit Clerk employee's personnel file when the employee had not been suspended or terminated?

Plain-English summary

Christy Peterson, records custodian for the Saline County HR/Personnel Office, asked whether she could withhold one record from a FOIA request concerning a former Circuit Clerk employee. She gave the record to the Attorney General for review. The opinion does not describe the document's contents.

The AG found that the record was a public record but qualified as an employee-evaluation record. The opinion explains that this category covers a record created by or at the employer's request to evaluate an employee and detail the employee's performance. Such a record can be released only if four conditions are all met: suspension or termination, final administrative resolution, a link between the record and that decision, and a compelling public interest.

Peterson had not said whether the employee was suspended or terminated. The AG inferred from the face of the record that neither had occurred. Because suspension or termination is the first required condition, the FOIA required the record to be withheld from public disclosure. The AG found Peterson's decision consistent with the Act.

Currency note

This opinion applies the FOIA to one record reviewed in 2015. Its conclusion depends on that record and the absence of suspension or termination. Check current FOIA law and the facts of a new request before applying it.

Background and statutory framework

The opinion sets out three questions for disclosure: whether the request goes to an entity subject to the FOIA, whether the document is a public record, and whether an express exception applies. The AG found the county HR office was a public entity and the document was a public record. The remaining question was the exception for employee-evaluation records.

The AG distinguished employee-evaluation records from other personnel records because their release tests differ. After reviewing the particular document, she classified it as an evaluation record. She did not disclose its subject matter or discuss what discipline short of suspension might have occurred.

Common questions

Did the AG identify the record as an investigative report?
No. The public opinion calls it “one record” supplied for review and does not describe what kind of document it was.

Why did the AG stop at suspension or termination?
The opinion calls that a threshold requirement. The four conditions must all be met for an employee-evaluation record to be released, and the AG concluded the first was absent.

Would a final suspension automatically make an evaluation record public?
No. The opinion also requires that the record formed a basis for the final decision and that the public have a compelling interest in disclosure. It did not need to decide those issues here.

Does the decision cover every record in the former employee's file?
No. The AG reviewed the one record Peterson submitted and assessed the custodian's decision about that record.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2015-060
June 5, 2015

Christy Peterson, Director
Human Resources
Saline County Courthouse
200 No. Main, Room 112
Benton, Arkansas 72015

Dear Ms. Peterson:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act (the "FOIA"). The FOIA 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 as to the release of such records is consistent with the act.

Your letter indicates that you, as records custodian for the Saline County HR/Personnel Office, have received a FOIA request for records contained in the personnel file of a former employee of the Circuit Clerk's office. You state that you have preliminarily determined that one record, which you have provided for my review, is not subject to disclosure. You seek my opinion on that determination.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the record, it is my opinion that your decision is consistent with the FOIA.

DISCUSSION

A document must be disclosed in response to an FOIA request if three conditions are met: first, the FOIA request is directed to an entity subject to the act; second, the requested document constitutes a "public record"; and third, the document does not fall within an express exception to disclosure requirements.

The first element is clearly met in this case, inasmuch as the Saline County HR/Personnel Office is clearly a public entity.

With respect to the second element, the FOIA defines the term "public records" as follows:

"Public records" means 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.

Based upon my review of the record here at issue, I conclude that it clearly qualifies as a "public record" under this definition and must be disclosed unless some specific exception provides otherwise.

Under certain conditions, the FOIA exempts from disclosure two distinct types 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 differs significantly. It is my conclusion that the relevant exemption in this case is the one for employee-evaluation records.

The FOIA does not define "employee evaluation or job performance records." However, the Arkansas Supreme Court has adopted this office's view that this 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.

Based upon my review of the requested document, I conclude that it constitutes an employee-evaluation record under this definition. Accordingly, 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., relevance); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

Suspension or termination is thus a threshold requirement for the release of employee-evaluation records. Although you have not indicated whether the former employee was suspended or terminated, I gather from the face of the record at issue that there was no suspension or termination in this case. The FOIA therefore requires that the record be withheld from public disclosure.

Accordingly, it is my opinion that your decision is consistent with the FOIA.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh