Can a city release a former employee's personnel records, including discipline letters, in response to an Arkansas FOIA request?

Plain-English summary

A current or former City of Little Rock employee, Carla Daniels, asked the Attorney General to review the city records custodian's decision to release her personnel file in response to a third-party FOIA request. This was a follow-up to Opinion No. 2016-018, where the AG had explained the general legal framework but could not opine on specific records because she had not seen them. With the redacted file in hand for this second request, the AG looked at each document.

Attorney General Leslie Rutledge concluded the custodian's release was mostly consistent with the Arkansas Freedom of Information Act, but she identified three corrections: race and gender of public employees should not have been redacted because Arkansas AG opinions consistently treat that information as disclosable, and two of the employee-evaluation records (a March 6, 2003 Disciplinary Action Form and a March 20, 2003 letter) contained material that did not form the basis for the final suspension and therefore had to be redacted before release.

Currency note

This opinion was issued in 2016. 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.

How the AG analyzed the file

The AG used the legal framework she had laid out in Opinion 2016-018. In short, the FOIA splits the kinds of documents found in a public-employee file into two categories with different disclosure rules:

Personnel records. Anything that pertains to the individual employee and is not an employee evaluation. These are disclosed unless release would be a "clearly unwarranted invasion of personal privacy," which the Young v. Rice balancing test answers by weighing the employee's privacy interest against the public interest, with a thumb on the scale favoring disclosure.

Employee-evaluation or job-performance records. Documents created by the employer to evaluate the employee's performance. These are disclosed only when (1) the employee was suspended or terminated, (2) there has been final administrative resolution, (3) the records formed a basis for that decision, and (4) there is a compelling public interest.

Applying that framework to Daniels' file, the AG found most of the file was properly classified as personnel records or employee evaluations, and the applicable disclosure tests were met. Three issues required correction:

1. Race and gender on the Employee Status Change Forms. The custodian had redacted these. The AG cited a line of prior opinions (Nos. 2015-003, 2005-100, 99-305, 91-351 and others) for the consistent position that race and gender of public employees are generally disclosable, and concluded these should not be redacted.
2. Disciplinary Action Form dated 3-6-03. Five employee evaluations were in the file. Parts of this form formed the basis for a final suspension and so were disclosable, but "reasons" numbered 1 and 2 on the form did not form the basis for the suspension. Those had to be cut.
3. Letter dated March 20, 2003. Same problem. Parts of the letter were the basis for the suspension and could be released, but specified portions (the last part of the first sentence beginning with "regarding" through "employment"; the second sentence beginning with "You" through "Performance"; the last part of the third sentence beginning with "providing"; and the last part of the first sentence of the third paragraph beginning with "however" through "work") had not formed the basis for the suspension and had to be redacted.

The AG cited prior opinions (Nos. 2003-091, 98-210, 97-415, 2014-054) for the position that information in investigation records not forming the basis of suspension or termination should be deleted from the records before release.

Common questions

Why were race and gender disclosable when so much other personnel information was redacted?
The AG's office has long taken the position that demographic categories like race and gender carry only a de minimis privacy interest when they appear on the records of public employees, and that the public interest in monitoring government employment outweighs that interest. The custodian's redaction was overcautious by AG standards at the time.

Why does the AG split a single discipline letter into "disclosable" and "redacted" pieces?
Because the statute permits release of employee-evaluation records only to the extent they formed a basis for the final suspension or termination. Background facts, character commentary, or unrelated incidents woven into the same document do not satisfy that "basis" element and must be cut before release.

What happens if the custodian disagrees with the AG?
The AG's opinion under Ark. Code Ann. § 25-19-105(c)(3)(B) is advisory. The custodian, requester, or subject of the records can still take the dispute to court. The opinion does, however, set the AG's view of what the FOIA requires and is typically given weight by Arkansas courts.

Source

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

Original opinion text

Opinion No. 2016-020
March 7, 2016
Carla L. Daniels
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Lisa Hinshaw, Human Resources Dept.
City of Little Rock
500 W. Markham, Suite 130W
Little Rock, AR 72201-4496
Dear Ms. Daniels:
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. 2015), 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 request is a timely follow-up to Attorney General Opinion No. 2016-018, which addressed your request for my review of the custodian's decision as to the release of your personnel file under the FOIA. Because I was not provided with any of the records in question, I was not able to opine therein about the release of any particular records. You have now provided me with a copy of the redacted personnel file that the records' custodian has determined must be disclosed pursuant to the FOIA. You state that you would "like to determine if [the] requested information is allowable under the [FOIA]."

RESPONSE

As stated in Opinion No. 2016-018, my statutory duty is to state whether the custodian's decision is consistent with the FOIA. It is my opinion based on the framework explained in the earlier opinion that the custodian's decision to release the records with certain redactions is for the most part consistent with the FOIA because (1) the records are properly classified as either personnel records or employee evaluations, and (2) the applicable tests for the records' disclosure are met. However, I believe a few of the redactions are inconsistent with the FOIA. Additionally, certain information must be redacted from two of the records.

DISCUSSION

Opinion No. 2016-018 provides an extensive general discussion of the legal definitions and tests associated with personnel records and employee-evaluation records. In the interest of brevity, I will skip the general introduction to the FOIA and these definitions and tests, and instead refer you to that earlier opinion for the legal framework that guides my analysis of the custodian's decision.

Having reviewed the records, it is my opinion that most of them are properly classified as personnel records that must be released (as redacted by the custodian) under the applicable balancing test. But this office has previously consistently opined that the race and gender of public employees are generally disclosable under the FOIA. It is therefore my opinion that this information should not be redacted prior to the records' release. The race and gender information appears on three forms entitled "Employee Status Change Form."

Several of the records are employee-evaluation records, under the definition of such records discussed in Opinion 2016-018. Specifically, there are five employee evaluations: the three forms entitled "Disciplinary Action Form," the letter dated March 20, 2003, and the letter dated November 20, 2002. The remaining records are personnel records that are subject to release as redacted, as stated above.

It is my opinion that the applicable test for disclosure is met with regard to most of these records. But in my opinion, some information must be redacted from two of the employee-evaluation records. Parts of both the Disciplinary Action Form dated 3-6-03 and the letter dated March 20, 2003 formed the basis for a final suspension. In my opinion, both are subject to disclosure to that extent under the test for the release of employee-evaluations. But these records also contain some information that did not form the basis for a final suspension or termination. It is therefore my opinion, consistent with previous opinions of this office, that certain portions of these two records must be redacted prior to their release. Specifically, the following information must, in my opinion, be redacted from these records:

• Disciplinary Action Form dated 3-6-03: the "reasons" numbered 1 and 2;
• Letter dated March 20, 2003: the last part of the first sentence (beginning with "regarding" and ending with "employment"), the second sentence (beginning with "You" and ending with "Performance"), the last part of the third sentence (beginning with "providing"), and the last part of the first sentence in the third paragraph (beginning with "however" and ending with "work").

Sincerely,
LESLIE RUTLEDGE
Attorney General