Can the public get a letter from a public agency telling an employee about disciplinary action through an Arkansas FOIA request?

Plain-English summary

Frank Baker, an employee of the West River Valley Regional Solid Waste Management District (RSWMD), received a letter from his employer notifying him of a disciplinary employment action. When somebody filed a FOIA request for his personnel file, the records custodian decided to release the letter with redactions. Baker objected and asked the Arkansas 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 decision to release the letter was consistent with the FOIA. Two findings drove the result:

1. The letter qualified as an "employee evaluation record." The opinion's settled rule was that a letter explaining the reasons behind an employment action is an employee evaluation record, not a personnel record. A letter that merely states the fact of an employment action without explaining it would have fallen on the personnel-records side instead.
2. All four release elements were met. Employee evaluation records can only be released when (i) the employee was suspended or terminated, (ii) there was a final administrative resolution, (iii) the evaluation record formed a basis for that disciplinary decision, and (iv) there is a compelling public interest in disclosure. The first three appeared met on the face of the letter. The compelling-public-interest factor was satisfied by the nature of the infraction and Baker's position at the RSWMD.

The AG also flagged a mandatory redaction: under Ark. Code Ann. § 25-19-105(b)(13), the public employee's personal contact information (home address, personal phone, personal email) had to be redacted before the letter was released.

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

How a § 25-19-105(c)(3)(B)(i) opinion request worked

Arkansas FOIA gave three parties a right to ask the AG to review a records custodian's decision concerning personnel or employee evaluation records: the custodian, the requester, and the subject of the records. The AG's only statutory task was to say whether the custodian's decision was consistent with FOIA. The AG did not make findings of fact, did not weigh evidence outside the file submitted, and did not adjudicate whether the underlying disciplinary action was warranted.

Personnel records vs. employee evaluation records

Both categories carved exceptions out of FOIA's general disclosure mandate, but they used very different release tests:

• Personnel records (§ 25-19-105(b)(12)): disclosable unless disclosure would be a "clearly unwarranted invasion of personal privacy." A balancing test from Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), governed. The thumb was on the disclosure side of the scale.
• Employee evaluation records (§ 25-19-105(c)(1)): disclosable only if all four elements above were satisfied. Lower threshold of disclosure compared to personnel records: more confidential, harder to release.

The AG had consistently classified letters that explained the reasons for an employment action as evaluation records, drawing on Op. Att'y Gen. 2012-041, 2011-068, 2009-210, 2006-026, and 95-171. A bare notification ("you are suspended") with no reasoning was a personnel record under Op. Att'y Gen. 2006-147.

The "compelling public interest" factors

The AG relied on Watkins and Peltz's The Arkansas Freedom of Information Act (5th ed. 2009) for the analysis: (1) nature of the infraction (with particular weight to violations of public trust or gross incompetence), (2) existence of a public controversy, and (3) the employee's position. A general interest in public-employee performance was not enough to be "compelling," because such interest would always be present. Higher-ranking employees usually generated stronger compelling-public-interest findings, citing Op. Att'y Gen. 95-242 (assistant city manager) and 96-258 (ADFA vice president).

The § 25-19-105(b)(13) redaction

Even when the underlying record was releasable, Ark. Code Ann. § 25-19-105(b)(13) (Supp. 2015) carved out "personal contact information" of public employees, including home or mobile telephone numbers, personal email addresses, and home addresses. The custodian had to redact those data elements before release. This was a separate, mandatory redaction, not part of the balancing test for the document overall.

Common questions

Q: If a public employer disciplines me, can the public see the disciplinary letter through FOIA?
A: Under this 2016 opinion, the answer turned on whether the disciplinary action was final, whether the letter explained the reasons (which made it an evaluation record), and whether there was a compelling public interest. If all four release elements were met, the letter could be released. Personal contact information was redacted.

Q: What does "compelling public interest" mean in practice?
A: It required something beyond a general curiosity about how public employees perform. The AG looked at the nature of the misconduct, whether a public controversy was already attached to the agency, and how senior the employee was.

Q: Could the employee block release just by objecting?
A: No. The AG explained that the FOIA test was objective. An employee's own view that release would invade his privacy was irrelevant. The custodian had to apply the statutory test, not the employee's preference.

Q: What had to be redacted before release?
A: Personal contact information (home address, personal phone, personal email) of nonelected state, municipal, school, or county employees. Other commonly redacted items in employee files (under other opinions cited in companion AG opinions) included Social Security numbers, dates of birth, medical information, marital status, insurance information, driver's license numbers, banking information, and tax/payroll deduction information.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015), defining "public record"
• Ark. Code Ann. § 25-19-105(b)(12), personnel records exception
• Ark. Code Ann. § 25-19-105(b)(13) (Supp. 2015), personal-contact-information redaction
• Ark. Code Ann. § 25-19-105(c)(1) (Supp. 2015), employee evaluation records release test
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), authorizing AG review of custodian decisions

Treatise:

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

Prior AG opinions referenced:

• Op. Att'y Gen. 2012-041, 2011-068, 2009-210, 2008-065, 2008-090, 2006-026, 2006-147, 96-168, 95-242, 96-258, 95-171, 97-368

Source

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

Original opinion text

Opinion No. 2016-084
July 28, 2016

Mr. Frank Baker
c/o Justin Sparrow, Director
West River Valley RSWMD
24087 Highway 164
Clarksville, AR 72830

Dear Mr. Baker:

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 request indicates that someone has submitted a FOIA request to West River Valley Regional Solid Waste Management District (RSWMD) for your personnel file. The custodian has decided that your personnel file, including a letter notifying you of certain employment action, is subject to release with redactions. You object to the release of the letter, although you have not stated any basis for the objection. You have provided a copy of the letter and you have asked for my opinion regarding the custodian's decision to release this record.

RESPONSE

My statutory duty is to state whether the custodian's decision regarding certain employee-related records is consistent with the FOIA. Having reviewed the letter at issue, it is my determination that (1) based on its content, the letter constitutes an employee evaluation record; and (2) the custodian's decision to release the letter is consistent with the FOIA, but your personal contact information must be redacted prior to the letter's release.

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 West River Valley RSWMD, 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.

Therefore, in my opinion, the document submitted is a public record 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.

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.

Based upon my review of the record at issue, I conclude that the relevant exemption is the one for employee-evaluation records. This office has consistently opined that a letter addressing the reasons that served as a basis for employment action taken with respect to a particular employee constitutes an employee-evaluation record for purposes of the FOIA. The letter you have provided for my review falls into this category.

a. Employee-evaluation exception

If a document qualifies as an employee-evaluation record, the document cannot be released unless all of 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 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.

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, 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.

III. Application.

I can now apply the foregoing to the document at issue. It appears from the face of the letter that the first three elements listed above are met. The only remaining question is whether the public has a compelling public interest in the letter's disclosure. Turning to the three factors noted above that were explained by Watkins and Peltz, the first factor (the nature of the infraction that led to the employment action) weighs in favor of disclosure. The second factor (the existence of a public controversy related to the agency and its employees) is difficult to assess because I lack sufficient background facts. The third factor (the employee's position within the agency) also weighs in favor of disclosure.

This office has previously concluded that a "compelling public interest" existed with regard to the release of records pertaining to high-ranking employees when viewed in conjunction with the nature of the particular infraction leading to a suspension or termination. Although the content of the letter in this case does not provide detailed information as to the nature of the infraction, it is my opinion based on your position in the RSWMD, coupled with the reason for the employment action, that the custodian's decision to release the letter is consistent with the FOIA. Please note, however, that your personal contact information must be redacted prior to the letter's release, in accordance with Ark. Code Ann. § 25-19-105(b)(13) (Supp. 2015).

Sincerely,

LESLIE RUTLEDGE
Attorney General