Could the Little Rock School District release a teacher's personnel and disciplinary records in response to a FOIA request, and what had to be redacted?

Plain-English summary

Isaac Davis, a Little Rock School District (LRSD) employee, received notice that someone had submitted a FOIA request for his non-exempt personnel records and any employee evaluation or job performance records, including documents supporting a recommendation for his suspension or dismissal. The LRSD custodian intended to release a redacted set of records. Davis asked the AG for a custodian-decision opinion under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

AG Leslie Rutledge concluded that the custodian's plan to release the records was generally consistent with FOIA, with two specific carve-outs and a separate FERPA flag:

1. Personnel records (notices, acknowledgement, resolution agreement, voluntary waiver, leave-of-absence letter, USPS receipt): releasable, but the insurance premium amounts shown on the Resolution Agreement and on the March 10, 2016 leave-of-absence letter had to be redacted. The AG had consistently treated personal financial details like insurance coverage costs as exempt under the Young v. Rice personnel-records balancing test.
2. Employee evaluation records (most other documents in the file): releasable under the four-element test (suspension or termination, finality, basis, compelling public interest), because the LRSD was treating the disciplinary decision as final and the public has a heightened interest in school teacher conduct affecting students.
3. The March 1, 2016 certified-mail letter: this letter recommended disciplinary action, but no disciplinary decision appeared to have followed from it. If, as a factual matter, no final suspension or termination resulted from this specific letter, then the third element of the release test (the record forming a basis for the disciplinary decision) was not met. That meant the letter could not be released. The AG flagged this as a fact question that the custodian, not the AG, had to resolve.
4. FERPA caveat: because the records contained references to students, a separate exemption under § 25-19-105(b)(2) and FERPA (20 U.S.C. § 1232g) could apply. The AG's review under § 25-19-105(c)(3)(B)(i) did not reach FERPA. The custodian, with local counsel, had to address that issue separately.

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.

Background and statutory framework

The dual-track FOIA test for employee files

Arkansas FOIA carved out two categories of records normally found in employee files: personnel records (§ 25-19-105(b)(12)) and employee evaluation or job performance records (§ 25-19-105(c)(1)). The two categories use different release tests, and the AG had repeatedly stressed that they are mutually exclusive.

• Personnel records are everything in an employee's file that is not an evaluation record: applications, transcripts, payroll documents, transfers, insurance forms, leave requests, settlement agreements, and so on. They are open to inspection unless disclosure would constitute a "clearly unwarranted invasion of personal privacy." The Young v. Rice test from the Arkansas Supreme Court controlled, with a thumb on the scale favoring disclosure. The custodian first decided whether the information triggered a more-than-de-minimis privacy interest, and then whether that interest was outweighed by the public's interest in disclosure.

• Employee evaluation records include records created by or at the employer's behest to evaluate the employee's performance, including letters recommending disciplinary action and investigative records. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, was the leading Arkansas Supreme Court formulation. Release required all four elements: suspension or termination, finality, basis, and compelling public interest.

Why insurance premiums had to be redacted

The AG had consistently opined under the personnel-records balancing test that personal financial information, including the amount a public employee pays for insurance coverage, is exempt. Op. Att'y Gen. 2006-182 and 2004-003 were the lead authorities. That redaction applied here on two specific documents: the Resolution Agreement and the March 10, 2016 leave-of-absence letter.

The "compelling public interest" weighing for teacher records

The AG noted that the office has consistently identified a "particularly heightened" public interest in records reflecting the conduct of public school teachers during school hours, during school events, and especially when students are affected by that conduct. Op. Att'y Gen. 2009-095, 2002-320, 2002-158, 2001-142, 2001-144, 2001-148, 2001-150, 2001-151, and 2001-153 all built that line. With the LRSD's apparent treatment of the disciplinary decision as final, and with the heightened public interest in teacher conduct, the four-element test was met.

The March 1 letter problem

The third element required that the evaluation record form a basis for the suspension or termination decision. If a disciplinary recommendation never actually generated a suspension or termination, the letter recommending discipline did not form the basis for anything. It would still be an evaluation record, but it would not pass the release test. The AG declined to be a fact-finder. The custodian had to determine, as a factual matter, whether the March 1 letter resulted in a final disciplinary action. Only then could the letter be released.

Why FERPA was a separate question

Section 25-19-105(b)(2) exempts education records as defined in FERPA unless their disclosure is consistent with FERPA's own rules. Because the LRSD records referred to students, FERPA may have shielded portions even if the FOIA personnel/evaluation framework released them. The AG's statutory review under § 25-19-105(c)(3)(B)(i) did not cover FERPA, so the custodian (with local counsel) was responsible for that overlay.

Common questions

Q: Can a school district release teacher disciplinary records to a FOIA requester?
A: Under this 2016 opinion, yes if the four-element evaluation-records test was met. Teacher records get extra weight on the "compelling public interest" factor when students are affected.

Q: What had to be redacted from the personnel records?
A: Insurance premium amounts on two specific documents (the Resolution Agreement and the March 10, 2016 leave-of-absence letter), plus the categories listed in other AG opinions that AG opinions had treated as required redactions (personal contact information, dates of birth, Social Security numbers, marital status, medical information, banking and tax information).

Q: A discipline-recommendation letter is in my file. Will it be released?
A: It depends on whether the recommendation led to an actual suspension or termination. If it did not, the third element of the four-part test fails and the letter is not releasable. The custodian must make that factual determination.

Q: What about student-related information in teacher files?
A: That is a separate FERPA analysis. The school district, with counsel, must apply FERPA before releasing any portion of the records that references students.

Q: Did the AG resolve whether the discipline-recommendation letter could be released?
A: No. The AG flagged it as a fact question for the custodian. The AG declined to act as a fact-finder.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015), definition of "public record"
• Ark. Code Ann. § 25-19-105(b)(2) (Supp. 2015), FERPA-related exemption
• Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2015), personnel-records exception
• Ark. Code Ann. § 25-19-105(b)(13), personal-contact-information redaction
• Ark. Code Ann. § 25-19-105(c)(1) (Supp. 2015), evaluation-records release test
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), AG review of custodian decision
• 20 U.S.C. § 1232g, Family Educational Rights and Privacy Act (FERPA)

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

Treatise:

• John J. Watkins and Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed., 2009)

Source

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

Original opinion text

Opinion No. 2016-083
August 4, 2016

Mr. Isaac Davis
c/o Rhonda Benton, Director
LRSD Human Resources
810 West Markham Street
Little Rock, AR 72201

Dear Mr. Davis:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request 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 the Little Rock School District ("LRSD") has received a FOIA request for, among other records, all of your non-exempt personnel records and evaluation or job performance records, including any documents supporting a recommendation for your suspension or dismissal. You have provided me with copies of certain records the custodian of records for LRSD intends to release, and you have asked for my opinion regarding the custodian's decision to release these records.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records at issue, it is my opinion that the custodian's decision to release the records is generally consistent with the FOIA. It is my opinion, in accordance with previous opinions of this office, that 1) the insurance premium amount reflected on two of the records must be redacted; and 2) the custodian's decision to release the certified mail letter dated March 1, 2016 is inconsistent with the FOIA if, as a factual matter, no final suspension or termination decision resulted from this letter.

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 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 LRSD, 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.

It is clear from the face of the documents at issue that they are records of the performance or lack of performance of official functions of employees and officials of LRSD. Therefore, in my opinion, these documents 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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly.

a. Personnel-records exception.

The first of the two relevant 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. 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."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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 minimis privacy interest. If the privacy interest is merely de minimis then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. 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. 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 objective.

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)(13));
• 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);
• Medical information (Op. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• 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 relevant exception is the one 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 this exception 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. The exception covers records generated by or at the behest of a supervisor in the course of investigating allegations of employee misconduct, including transcriptions of interviews taken under such circumstances. It also includes letters recommending disciplinary action, as well as records that reflect administrative action taken as a result of any investigation.

If a document meets the above definition, the document 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., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

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.

III. Application.

The first step, as noted above, is to categorize the documents. It is clear from their content that most of the documents you have submitted for my review constitute employee evaluation records under the above definition of that category of records. The only ones that do not fall into that category are the following which, in my opinion, constitute personnel records:

• Notice dated March 14, 2016;
• Acknowledgement of Receipt dated March 11, 2016;
• Resolution Agreement dated March 14, 2016;
• Voluntary Waiver dated March 14, 2016;
• Letter dated March 10, 2016 regarding leave of absence;
• U.S. Postal Service Certified Mail Receipt.

It is my opinion with regard to the above-listed personnel records that the custodian's decision to release these records, as redacted, is generally consistent with the FOIA. Their disclosure would not, in my opinion, constitute a clearly unwarranted invasion of your personal privacy, which as noted above is the test for the release of personnel records. In my opinion, however, the insurance premium amount reflected on the Resolution Agreement and the March 10, 2016 letter regarding leave of absence must also be redacted. This office has consistently opined that personal financial information concerning items such as the amount a public employee pays for insurance coverage is exempt from disclosure under the personnel records balancing test.

With regard to the remaining records (the employee evaluation records), it is my opinion that with the possible exception of the certified mail letter dated March 1, 2016 (discussed below), they must be disclosed. As employee evaluation records, these records cannot be released unless all the elements listed in Section II(b) above are met. It appears clear from the face of the records that the level-of-discipline element has been met and that the records formed a basis for the disciplinary decision. Additionally, given that the LRSD intends to release the records, I take it that the disciplinary decision was final (the finality element).

As for the "compelling public interest" element, the FOIA does not define this phrase. However, 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.

In my opinion, each of these factors weighs in favor of the custodian's apparent determination in this instance that there is a compelling public interest in the records' disclosure. This office has consistently opined that the public has a particularly heightened interest in records reflecting the conduct of public school teachers during school hours, during school events, and especially when students are affected by that conduct. With regard to the existence of a "public controversy," this factor is somewhat difficult to assess because I lack sufficient background facts. But this office has repeatedly opined that, in certain situations, a compelling public interest exists in the disclosure of documents containing certain categories of information. The absence of a public controversy may be of minimal significance in these cases. It is therefore my opinion that with the possible exception of one record, all of the conditions for the release of the employee evaluations are met in this case.

The one exception to this analysis is the March 1, 2016 letter (sent by certified mail). The letter recommended disciplinary action, but it appears from the face of the other records that no disciplinary decision followed. Accordingly, based on the limited information before me, it appears that this letter did not form the basis for any disciplinary decision. I am not a fact-finder in the issuance of Attorney General opinions. But if in fact there was no disciplinary action as a result of this letter, the test for the letter's release is not met. It is up to the custodian of records to determine whether there was, as a factual matter, a suspension or termination decision as a result of this letter. Only if the factual answer to that question is "yes" may the March 1 letter be released under the FOIA.

I will also add that the custodian should be aware of a separate exemption falling outside the scope of this opinion. My review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) only extends to the applicability of the exemptions for personnel records and employee evaluation records. Because the records at issue contain references to students, they may implicate a separate exemption under the FOIA that relates to the Federal Educational Rights & Privacy Act (20 U.S.C. § 1232g) (FERPA). See A.C.A. § 25-19-105(b)(2) (Supp. 2015) (exempting from public inspection "education records as defined in [FERPA], unless their disclosure is consistent with the provisions of that act."). The applicability of this separate exemption is a matter to be decided by the records' custodian with the assistance of local counsel.

Sincerely,

LESLIE RUTLEDGE
Attorney General