Can an Arkansas sheriff issue a blanket denial of a FOIA request for records about an employee's alleged harassment, and does the employee's resignation unlock those records?

Plain-English summary

Bobby Walraven asked the Arkansas Attorney General to review the Little River County Sheriff's denial of a FOIA request for records about alleged harassment by a former department employee. The sheriff cited personnel and employee-evaluation exemptions. Walraven argued that the denial was too broad, that some information could be redacted, and that the former employee's resignation made investigation records available.

Attorney General Leslie Rutledge had not seen the responsive records and could not decide whether any particular one had to be released. She explained that the FOIA does not itself require a detailed explanation for a denial, although the relied-on exemption should be identified. She also said blanket denials of employee-related records are ordinarily inconsistent with the FOIA: reasonably segregable portions must be provided after exempt information is removed.

The AG distinguished personnel records from employee-evaluation records. Personnel records are subject to a privacy balancing test under Young v. Rice. Evaluation records have a separate four-part release test, beginning with suspension or termination of the employee. Resignation alone does not satisfy that requirement for a record that qualifies as an evaluation record. The custodian must classify each record and apply the proper test. The AG also noted a possible constitutional privacy interest for identifiable people in the records, to be resolved on the facts by the custodian.

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.

What this means for you

FOIA requesters

A denial covering every employee-related record may be too broad when a record contains portions that can be released after redaction. This opinion does not establish that Walraven was entitled to any particular unseen record. It explains the tests the sheriff had to apply.

Records custodians

Classify each responsive record before applying an exemption. Personnel records use a privacy balance; evaluation records use the four-part test described in the opinion. Provide reasonably segregable portions after removing exempt information. A former employee's resignation does not by itself permit release of an evaluation record, but it does not decide the status of every other kind of record.

Common questions

Q: Did the AG order the sheriff to release the requested files? A: No. She had not seen the responsive files and could not decide their individual status.

Q: Is a blanket denial allowed for all employee-related records? A: The AG said it is ordinarily inconsistent with the FOIA if exempt information can reasonably be separated and the rest released.

Q: Does resignation open an investigation file? A: Resignation does not satisfy the suspension-or-termination threshold if the particular file is an employee-evaluation record. The custodian must first determine what kind of record it is.

Q: Could a complainant's statement be a personnel record? A: Yes. The opinion says complaints by public employees are usually also personnel records of the complainants; their release still requires the applicable privacy analysis.

Background and statutory framework

The AG listed four conditions for release of an employee-evaluation record: suspension or termination, final administrative resolution, a record that formed a basis for the decision, and a compelling public interest. For a personnel record, she described the Young v. Rice balance between a person's privacy interest and the public interest in access. The opinion says records generated by an internal investigation typically qualify as evaluation records, while complaints may also be personnel records. These classifications depend on the individual documents.

Citations and references

Statute: Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), the AG review procedure.

Case: Young v. Rice, cited for the personnel-records privacy balance.

Source

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

Original opinion text

Opinion No. 2016-095
September 2, 2016
Mr. Bobby Walraven
114 Little River 725
Ashdown, AR 71822
Dear Mr. Walraven:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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 you have submitted a FOIA request to the Sheriff of Little River County for "records that pertain to the sexual harassment, or any other kind of harassment, of employees of the Little River County Sheriff's Department and of any other person" by a former employee of the Little River County Sheriff's Department. You specified that the records should include all communications, complaints, images, and statements. The sheriff has denied your request, stating: "If any of these records pertaining to sexual harassment exist, they are exempt from the [FOIA], covered under [Ark. Code Ann.] § 25-19-105(b)(12)
[and] (c)." You state that you were advised that "certain parties had provided statements to the sheriff complaining about [the former employee]," but that the statements "would be potentially embarrassing to the complaining parties if . . . released."

You object to the sheriff's response, stating that it is "overly broad" and does not sufficiently explain the reason given for not providing the records. You note that "any such statements [by complaining parties] may have certain and limited information redacted and still be in compliance with the FOIA." You also say that records of any investigation regarding the matters complained of "are now subject to disclosure since [the former employee] . . . has now resigned . . . ."

You have asked for an opinion regarding the custodian's decision to deny your request.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. That determination depends upon the content of any records that are responsive to your request and the proper application of the relevant FOIA test for disclosure. Because I have not seen any records that may be at issue, I cannot opine regarding the release of any particular records. I can, however, explain the tests that apply to the types of records you are seeking. I can also make several observations regarding your particular objections to the Sheriff's decision to deny your request. I will make those observations and then proceed to a discussion of the tests.

First, as two recognized commentators on the FOIA have observed, "nothing in the FOIA itself requires an agency denying a request in whole or in part to explain its decision," but "the Attorney General has opined that the exemption relied upon as the basis for denying access should be provided." The correspondence you provided to my office indicates that the Sheriff cited the FOIA exemptions for personnel and employee evaluation records (discussed below) in denying your records request. It appears that the FOIA does not itself require the Sheriff to provide any further explanation. This office has previously observed, however, that "as a practical matter this information will most likely have to be forthcoming in the event of an appeal of the [agency's] decision."

Second, the FOIA requires that any "reasonably segregable portion of a record" be provided after deleting exempt information. This means, as to employee-related records (discussed below), that a blanket denial of access to such records is ordinarily inconsistent with the FOIA. The custodian must instead apply the applicable test and determine whether the records must be released after deleting any exempt information. I cannot specifically opine in this regard as to the records you have requested. I can only note that if the records contain exempt information that can reasonably be segregated, then the record(s) must be provided after the redactions are made.

Finally, regarding your statement that any investigation records must be disclosed because the subject has resigned, the FOIA actually establishes a rule to the contrary for any such records that qualify as employee evaluation records. As explained further below, suspension or termination is a threshold requirement for the release of those kinds of employee-related records.

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 Little River County Sheriff's Department ("Department"), 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.

If the records you are seeking are kept by the Department, it seems clear, given their subject matter (alleged harassment by a former employee), that they qualify as "public records" under this definition. Accordingly, they must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two kinds 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.

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. 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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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.

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 have not seen any of the records that are responsive to your FOIA request and therefore cannot address any specific records. I will note generally, however, that most complaints against public employees are either the personnel records or the employee evaluation records of the person being complained about; and complaints by public employees are also usually the personnel records of the complainants. Additionally, as indicated above, records generated as part of an internal investigation typically are properly classified as employee evaluation records.

The custodian must first apply the above definitions to any records that are responsive to your request in order to properly classify the records, and then determine whether, and to what extent, the records are subject to release based on the appropriate test for disclosure.

You should also be aware that any party who is identifiable from any of the requested records may have a constitutionally protected privacy interest in those records. The Arkansas Supreme Court has recognized that the constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to the release of documents containing constitutionally protectable information. The question of whether information is protectable under the constitutional right of privacy is one of fact that must be determined in the first instance by the custodian of the records, on the basis of the particular facts of the case.

Sincerely,

LESLIE RUTLEDGE
Attorney General