When a city's records custodian responds to a media FOIA request about a former employee, how does the AG check the release decision?

Plain-English summary

Camden City Attorney Michael W. Frey, on behalf of the records custodian, asked the AG under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) whether the custodian's decision to release certain documents to local news outlets was consistent with the FOIA. The submitted documents related to a former city employee. The request did not say how each document had been classified (personnel record vs. employee-evaluation record vs. neither), and possibly omitted facts the custodian had considered in classifying them.

AG Leslie Rutledge said the request was difficult to answer cleanly because of those gaps. She supplied her supposition of each record's likely classification and analyzed them on that basis. The bottom line: the custodian's decisions were consistent with FOIA for some records but not all. The opinion functions partly as a process correction. Custodians who want AG review of close FOIA calls should explicitly classify each record and surface the facts they relied on, so the AG can apply the correct legal test instead of guessing.

The legal frameworks the AG applied were the standard ones for these situations. Personnel records (Ark. Code Ann. § 25-19-105(b)(12)) get the Young v. Rice "clearly unwarranted invasion of personal privacy" balancing test, with the thumb on disclosure. Employee-evaluation records (§ 25-19-105(c)(1)) under Thomas v. Hall require a stricter four-element test: suspension or termination, final administrative resolution, records that formed a basis for the discipline, and compelling public interest in disclosure.

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.

Common questions

Why does the custodian's classification of records matter so much?
Because the test for whether a record is disclosable depends on which category it falls in. A misclassification can produce the wrong result. Pure personnel records use the privacy-balancing test; employee-evaluation records use a four-element test with a compelling-public-interest requirement. The AG cannot definitively review the decision without knowing which test the custodian applied.

What is the test for personnel records?
The Young v. Rice (308 Ark. 593 (1992)) balancing test. Step one: is the privacy interest greater than de minimus? Step two: does the public interest outweigh it? The Arkansas Supreme Court favors disclosure. The resister bears the burden (Stilley v. McBride).

What is the test for employee-evaluation records?
Stricter. Under Ark. Code Ann. § 25-19-105(c)(1) and Thomas v. Hall, 2012 Ark. 66, all four elements must be met: the employee was suspended or terminated, the proceeding has a final administrative resolution, the records formed a basis for the suspension/termination decision, and the public has a compelling interest in disclosure.

What is the takeaway for records custodians?
Spell out classifications and reasoning when asking the AG for review. If the AG has to guess at the classification, the opinion will read as the AG's supposition rather than as a definitive ruling. The custodian also needs to be prepared for the possibility that the AG disagrees with the classification on one or more records.

Does the news outlet's interest in the story strengthen the compelling-public-interest element?
By itself, no. AG opinions reject "general interest in performance of public employees" as a compelling interest. What strengthens the showing is a link between a specific public controversy, an agency tied to that controversy, and an employee within the agency who committed a serious breach of public trust.

Background and statutory framework

The two-category architecture. Arkansas FOIA distinguishes personnel records (§ 25-19-105(b)(12)) from employee-evaluation or job-performance records (§ 25-19-105(c)(1)). The categories are mutually exclusive for analysis. The custodian classifies each record, then applies the test that matches.

Personnel records use the Young v. Rice (308 Ark. 593 (1992)) two-step balancing. Greater-than-de-minimus privacy interest first; public-interest-outweighs second. Stilley v. McBride (332 Ark. 306 (1998)) puts the burden on the resister.

Employee-evaluation records have a four-element test under § 25-19-105(c)(1) as construed by Thomas v. Hall (2012 Ark. 66): discipline level (suspension/termination), finality, basis, and compelling public interest. The compelling-public-interest element draws on a body of AG opinions identifying factors like nature of the infraction, public controversy, and employee position.

The procedural-clarity point comes from the AG's repeated need to make suppositions about classification in the absence of clear custodian explanation. AG opinions (Op. Att'y Gen. Nos. 2007-225, 2006-038) emphasize the value of detailed custodian reasoning for accurate review.

Citations

Statutes: Ark. Code Ann. §§ 25-19-103(5)(A), 25-19-105(b)(12), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i) (Supp. 2015).

Cases: Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387.

Related AG opinions: 2016-057 (companion personnel-records analysis), 2016-044, 2007-225, 2006-038.

Source

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

Original opinion text

Opinion No. 2016-055
May 10, 2016
Michael W. Frey, Esq.
Camden City Attorney
P.O. Box 715
Camden, AR 71 711-0715
Dear Mr. Frey:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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 Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). 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 local news outlets have requested copies of
records relating to a former employee. You have attached several documents that
the custodian of records believes are responsive to the request and has determined
to be subject to release under the FOIA. You ask whether the custodian's initial
release decision is compatible with the FOIA.
Your request does not indicate how the custodian classified any of the records; i.e.,
whether the custodian deems a particular document to be a personnel record, an
employee evaluation or job performance record, or neither. In addition, it may be
that the custodian is in possession of facts which were not recounted to me but
were deemed relevant in the custodian's classification of the documents. Without
knowing the custodian's reasoning with respect to each of the records, and
(possibly) without knowledge of all facts relevant to each document's
classification, it is impossible for me to opine definitively on each record's
appropriate classification and resulting treatment under FOIA. I will, however,
state herein my supposition of the custodian's classification of each document and
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Michael W. Frey, Esq.
Opinion No. 2016-055
Page 2
render my opinion with respect to each of the documents based on that supposition
and on the basis of the facts contained in the documents and in your request for my
opm1on.
RESPONSE
My statutory duty is to state whether, with respect to personnel records and
employee evaluation or job performance records, the custodian's decision is
consistent with the FOIA. Having reviewed the records submitted and your request
for my opinion, it is my opinion, based solely on the facts set forth in the records
submitted and in your request:

1. One of the records is neither a personnel record nor an employee evaluation
   or job performance record. Because my statutory duty and authority to
   render opinions in this context are limited to such records, I express no
   opinion with respect to a record submitted that is neither a personnel record
   nor an employee evaluation or job performance record.
2. Some of the records are personnel records, and there appears to be no
   significant danger that the disclosure of such records will constitute a
   clearly unwarranted invasion of personal privacy. Accordingly, the
   custodian's decision to release these records is consistent with the FOIA.
3. The remaining record is an employee evaluation or job performance record.
   The documents submitted to me indicate that the former employee resigned
   from the City's employ. There is no indication in the documents submitted
   that the former employee was suspended or terminated. Because employee
   evaluation or job performance records are subject to public disClosure only
   following an employee's suspension or termination, the custodian's
   decision to release this record is inconsistent with the FOIA.
   I will set out relevant definitions and standards, then apply them to the records
   submitted.
   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 Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 3
   subject to the act. Second, the requested document must constitute a public record.
   Third, no exceptions allow the document to be withheld.
   The first two elements appear met in this case. As for the first element, the
   documents are held by the City of Camden, which is a public entity. As for the
   second element, the FOIA defines "public record" as:
   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.1
   In my opinion, all the documents you submitted are public records and must be
   disclosed unless some specific exception provides otherwise.
   II. Exceptions to disclosure.
   Under certain conditions, the FOIA exempts two groups of items normally found
   in employees' personnel files.2 For purposes of the FOIA, these items can usually
   be divided into two mutually exclusive groups: "personnel records"3 or "employee
   1 Ark. Code Ann.§ 25-19-103(5)(A) (Supp. 2015).
   2 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. E.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).
   3 Ark. Code Ann.§ 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." Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 4
   evaluation or job performance records."4 The test for whether these two types of
   documents may be released differs significantly.
   When custodians assess whether either of these exceptions applies to a particular
   record, they must make two determinations. First, they must determine whether
   the record meets the definition of either exception. Second, assuming the record
   does meet one of the definitions, the custodian must apply the appropriate test to
   determine whether the FOIA requires that record be disclosed.
   a. Personnel-records exception.
   The first of the two most relevant potential exceptions is the one for "personnel
   records," which the FOIA does not define. But this office has consistently opined
   that "personnel records" are all records other than employee evaluation and job
   performance records that pertain to individual employees.5 Whether a particular
   record meets this definition is, of course, a question of fact that can only be
   definitively determined by reviewing the record itself. If a document meets this
   definition, then it is open to public inspection and copying except "to the extent
   that disclosure would constitute a clearly unwarranted invasion of personal
   privacy."6
   While the FOIA does not define the phrase "clearly unwarranted invasion of
   personal privacy," the Arkansas Supreme Court, in Young v. Rice,7 has provided
   some guidance. 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. 8
   4 Ark. Code Ann. § 25-19-105( c )(I): "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."
   5 See, e.g., Op. Att'y Gen. No. 1999-147; Watkins & Peltz, supra, at 187.
   6 Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2013).
   7 Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
   8 Watkins & Peltz, supra note 4, at 191. Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 5
   The balancing test elaborated by Young v. Rice has two steps. First, the custodian
   must assess whether the information contained in the requested document is of a
   personal or intimate nature such that it gives rise to a greater than de minimus
   privacy interest.9 If the privacy interest is merely de minimus, then the thumb on
   the scale favoring disclosure outweighs the privacy interest. Second, if the
   information does give rise to a greater than de minimus privacy interest, then the
   custodian must determine whether that interest is outweighed by the public's
   interest in disclosure.10 Because the exceptions must be narrowly construed, the
   person resisting disclosure bears the burden of showing that, under the
   circumstances, his privacy interests outweigh the public's interests.11 The fact that
   the subject of any such records may consider release of the records an unwarranted
   invasion of personal privacy is irrelevant to the analysis because the test is
   b. . 12
   o ~ective.
   Whether any particular personnel record's release would constitute a clearly
   unwarranted invasion of personal privacy is always a question of fact. 13
   Even if a document, when considered as a whole, meets the test for disclosure, it
   may contain discrete pieces of information that have to be redacted. Some items
   that must be redacted include:
   • Personal contact information of public employees, including personal
   telephone numbers, personal e-mail addresses, and home addresses (Ark.
   Code Ann. § 25-19-105(b)(l3));
   • Marital status of employees and information about dependents (Op. 2001-
   080;
   • Dates of birth of public employees (Op. 2007-064);
   • Social security numbers (Ops. 2006-035, 2003-153);
   9 Id. at 598, 826 S.W.2d at 255.
   10 Id., 826 S.W.2d at 255.
   11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
   12 E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
   13 Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001. Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 6
   • Medical information (Op. 2003-153);
   • Any information identifying certain law enforcement officers currently
   working undercover (Ark. Code Ann.§ 25-19-105(b)(l0));
   • Driver's license numbers (Op. 2007-025);
   • Insurance coverage (Op. 2004-167);
   • Tax information or withholding (Ops. 2005-194, 2003-385); and
   • Payroll deductions (Op. 98-126); banking information (Op. 2005-194).
   b. Employee-evaluation exception.
   The second potentially relevant exception is for "employee evaluation or job
   performance records," which the FOIA 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.14 This exception includes records generated while investigating allegations
   of employee misconduct that detail incidents that gave rise to an allegation of
   misconduct.15
   If a document meets the above definition, the document cannot be released unless
   all the following elements have been met:
4. The employee was suspended or terminated (i.e., level of discipline);
5. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
6. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
   14 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; see, e.g., Op. Att'y Gen. Nos. 2009-067; 2008-
   004; 2007-225; 2006-03 8; 2005-030; 2003-073; 98-006; 97-222; 95-351; 94-306; and 93-055.
   is Id. Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 7
7. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).16
   As for the final prong, the FOIA never defines the key phrase "compelling public
   interest." But two leading commentators on the FOIA, referring to this office's
   opinions, have offered the following guidelines:
   [I]t seems that the following factors should be considered in
   determining whether a compelling public interest is present: (1) the
   nature of the infraction that led to suspension or termination, with
   particular concern as to whether violations of the public trust or
   gross incompetence are involved; (2) the existence of a public
   controversy related to the agency and its employees; and (3) the
   employee's position within the agency. In short, a general interest in
   the performance of public employees should not be considered
   compelling, for that concern is, at least theoretically, always present.
   However, a link between a given public controversy, an agency
   associated with the controversy in a specific way, and an employee
   within the agency who commits a serious breach of public trust
   should be sufficient to satisfy the "compelling public interest"
   requirement. 17
   These commentators also note that "the status of the employee" or "his rank
   within the bureaucratic hierarchy" may be relevant in determining whether a
   "compelling public interest" exists, 18 which is always a question of fact that must
   be determined, in the first instance, by the custodian after he considers all the
   relevant information.
   The primary purpose of this exception is to preserve the confidentiality of the
   formal job-evaluation process in order to promote honest exchanges in the
   employee/employer relationship.19
   16 Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2013); Op. Att'y Gen. 2008-065.
   17 Watkins & Peltz, supra, at 217-18 (footnotes omitted).
   18 Id. at 216 (noting that "[a ]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   19 Cf Op. Att'y Gen. 96-168; Watkins & Peltz, supra, at 204. Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 8
   III. Application.
   I apply the foregoing rules to the documents submitted as follows:
   Document captioned "ASSISTANT MAYOR," bearing the page number "103"
   (one page). Because the custodian determined that this document is subject to
   disclosure, and because it is included in your request for my opinion, which is
   limited to personnel records and employee evaluation or job performance records,
   I presume that the custodian classified this document as a personnel record.
   In my view, however, this document does not purport to evaluate any particular
   employee's performance or otherwise pertain to any particular individual. Rather,
   both the typewritten bulk of the document and the handwritten annotations to
   describe generally the responsibilities of whoever holds the job of Assistant Mayor
   from time to time. Accordingly, in my view, this document is neither a personnel
   record nor an employee evaluation or job performance record. Because my
   statutory duty and authority to render opinions in this context are limited to
   personnel records and employee evaluation or job performance records, I express
   no opinion with respect to the custodian's decision to release this record. I will
   say, however, that nothing I have seen in connection with this matter is
   inconsistent with the notion that this document is simply a non-exempt public
   record and therefore subject to disclosure.
   Document beginning with the words "All of the duties of the Assistant to the
   Mayor" (two pages). While this document - like one discussed above - is mostly
   simply a description of the responsibilities of whoever holds the job of Assistant
   Mayor from time to time, it also states that certain named City employees and
   officials met on a date specified to discuss such job responsibilities with the
   employee (now former employee) at issue. Accordingly, the document pertains to
   that individual. The document does not, however, contain statements evaluating
   that individual's job performance. In my view, accordingly, this document is a
   personnel record. From the information submitted, I see no indication that release
   of this record would result in a clearly unwarranted invasion of personal privacy.
   In my opinion, then, the custodian's presumed classification of this document as a
   personnel record, and the custodian's decision to release this document, are
   consistent with the FOIA.
   Document captioned "IN RESPONSE TO JOB DESCRIPTION MEMO FROM
   MAYOR 03/17/16" (four pages). This document was prepared by the former
   employee and submitted to the mayor. While the document contains the former Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 9
   employee's statements about his job performance, there is no indication that the
   document was prepared "by or at the behest of the employer." Rather, it appears
   that the former employee gratuitously prepared the document and submitted it to
   the mayor. As the document was not prepared by or at the behest of the employer,
   it is not an employee evaluation or job performance record. The record does,
   however, pertain to a particular employee, namely the one who prepared it. The
   record is, accordingly, a personnel record.2° From the information submitted, I see
   no indication that release of this record would result in a clearly unwarranted
   invasion of personal privacy. In my opinion, then, the custodian's presumed
   classification of this document as a personnel record, and the custodian's decision
   to release this document, are consistent with the FOIA.
   A few words have been redacted from the copy of this document submitted to me.
   It appears that the redactions are of individuals' names. I assume the custodian
   made the redactions and proposes to release the document in this form. Because I
   do not know precisely what was redacted, or why, I am unable to express an
   opinion with respect to the propriety of the redactions.
   Email dated May 2, 2016 (one page). Because the custodian determined that this
   document is subject to disclosure, I presume that the custodian classified this
   document as a personnel record.
   In my view, however, because this document was prepared by the employer and
   makes statements about the employee's job performance, it is very likely an
   employee evaluation or job performance record. As discussed above, such records
   are not subject to disclosure under the FOIA unless the employee was suspended
   or terminated (and other tests are met). The records submitted indicate that the
   former employee resigned from the City's employ. There is no indication in such
   records that the former employee was suspended or terminated. Accordingly,
   based solely on the facts contained in the records submitted and in your request for
   my opinion, the custodian's decision to release this record appears to be
   inconsistent with the FOIA. It may be, however, that the custodian is in possession
   of additional facts that would indicate the record is not an evaluation or job
   performance record, but rather is a personnel record. If that were the case, release
   would be justified, in my opinion.
   20 See generally Op. Att'y Gen. 2002-326 ("[A] document generated at an aggrieved employee's
   own instigation and subsequently conveyed to the employer constitutes a 'personnel record'. ... "). Michael W. Frey, Esq.
   Opinion No. 2016-055
   Page 10
   The custodian should revisit the classification and decision to release this record in
   light of this opinion.
   Document captioned "NOTICE OF TERMINATION" (one page). Because the
   custodian determined that this document is subject to disclosure, I presume that
   the custodian classified this document as a personnel record.
   I note, however, that this document contains a statement by the mayor about the
   employee's job performance. In my view, that statement indicates that the
   document is an employee evaluation or job performance record. Such records are
   subject to release only following a suspension or termination. Notwithstanding this
   document's caption, the handwritten entries on the form indicate - twice - that the
   employee resigned. There is no indication he was suspended or terminated.
   Accordingly, based solely on the facts of which I am aware, the custodian's
   decision to release this record appears to be inconsistent with the FOIA. It may
   be, however, that the custodian is in possession of additional facts that would
   indicate the record is not an evaluation or job performance record, but rather is a
   personnel record. If that were the case, release would be justified, in my opinion.
   The custodian should revisit the classification and decision to release this record in
   light of this opinion.
   Sincerely,
   ~- L ' /./~...#7
   LESLIE RUTLEDGE
   Attorney General