Can a teacher's suspension and resignation records be released under Arkansas FOIA?

Plain-English summary

Holly Gurien was suspended by the Paragould School District under the Teacher Fair Dismissal Act and then resigned before the school board ruled on her appeal. After a FOIA request for the records, the District planned to release them with redactions. Gurien asked the AG to review.

AG Leslie Rutledge approved the District's call. All four prongs of the evaluation-record release test were met:

1. Disciplinary suspension. The Teacher Fair Dismissal Act suspension was disciplinary, not administrative, because it was based on allegations about Gurien's conduct. A document under § 6-17-1508 is by definition an evaluation record because the statute requires the notice to state the grounds for discipline.

2. Administrative finality. Gurien resigned before the school board ruled. The AG and Arkansas commentators have long opined that when an employee abandons an internal appeal process (whether by withdrawing the appeal or resigning), the underlying adverse action becomes final. If the rule were otherwise, any employee could moot release of records by initiating and immediately terminating an appeal.

3. Relevance (formed a basis). The records reflected the conduct that led to the suspension.

4. Compelling public interest. The AG has consistently said 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." Even without a separate ongoing public controversy, the nature of the conduct and the position of the employee can satisfy the compelling-interest factor.

The release, as redacted, is consistent with FOIA.

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

Q: What is the Teacher Fair Dismissal Act?
A: Ark. Code Ann. § 6-17-1501 et seq. It governs the process by which a school district can suspend, dismiss, or take other adverse employment action against a teacher. Section 6-17-1508 requires written notice specifying the grounds.

Q: When is a suspension considered "disciplinary" versus "administrative"?
A: Disciplinary suspensions are based on the employee's alleged conduct having fallen below expectations. Administrative suspensions (sometimes called "administrative leave") happen as a result of a routine policy without regard to the propriety of the employee's conduct. The classic administrative example is a police officer placed on leave after discharging a firearm pending investigation. The Teacher Fair Dismissal Act process is disciplinary by design.

Q: What does "administrative finality" require?
A: That the disciplinary decision is no longer subject to internal administrative review. The AG opinions consistently treat resignation, withdrawal of an appeal, or expiration of the appeal window as making the discipline final.

Q: What factors weigh into "compelling public interest"?
A: Watkins & Peltz suggest three: the nature of the infraction (especially violations of public trust or gross incompetence), the existence of a public controversy, and the employee's position. The AG has said the absence of a public controversy may matter little when the conduct itself is the kind that triggers compelling interest, such as teacher misconduct affecting students.

Q: Are some details of the records still redacted before release?
A: Yes. Standard personnel-record redactions still apply: personal contact information, social security numbers, dates of birth, medical info, and similar private items. The District released the records "as redacted," consistent with that practice.

Background and statutory framework

The Arkansas FOIA's employee-evaluation exemption at § 25-19-105(c)(1) requires four elements before release: suspension or termination, administrative finality, basis (the records formed a basis for the discipline), and compelling public interest.

The Arkansas Supreme Court's Thomas v. Hall defined evaluation records as records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that detail performance or lack of performance.

The Teacher Fair Dismissal Act at § 6-17-1501 et seq. creates a specialized notice-and-appeal process for teacher discipline. The required notice under § 6-17-1508 specifies grounds for the action, which is what makes it an evaluation record per se.

The compelling-interest factor for teachers leans toward disclosure under repeated AG opinions, given the public trust placed in teachers and the impact of misconduct on students.

Citations and references

Statutes:

• Ark. Code Ann. § 6-17-1501 et seq. (Teacher Fair Dismissal Act)
• Ark. Code Ann. § 6-17-1508 (notice of discipline)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (opinion request)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation record definition)

Source

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

Original opinion text

Opinion No. 2016-117
November 14, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Holly Gurien
c/o Debbie Smith, Superintendent
Paragould School District
1501 West Court Street
Paragould, AR 72450

Dear Ms. Gurien:

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 and attachments indicate that the Paragould School District has received an FOIA request for records regarding some procedures that took place while you were employed at the District. The District intends to release the records, with certain redactions. You have provided the records and you seek my opinion on whether the District has correctly decided to release them.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the custodian's decision to release the records, as redacted, is consistent with the FOIA.

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. There is no question that the first two elements are met in this case. Thus, I will only analyze the final element, whether there are any exceptions that shield the documents from disclosure.

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. Employee-evaluation exception.

In my opinion, the records at issue are properly classified as "employee evaluation or job performance records." I will therefore focus only on that exception. While the FOIA does not define the term "employee evaluation or job performance records," the Arkansas Supreme Court has held 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.

I note in this regard that one of the records is a letter to you that was issued under Ark. Code Ann. § 6-17-1508 (Repl. 2013), which is part of the Teacher Fair Dismissal Act (Ark. Code Ann. § 6-17-1501 et seq.). This letter clearly is an evaluation record because it is written notice that must be created by the employer; and pursuant to the statute, it must set out grounds for the disciplinary action.

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., formed a basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling public 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

a. Level of discipline.

The first question to be addressed in this analysis is whether you suffered a disciplinary suspension. For purposes of the FOIA, suspensions can be classified as disciplinary or non-disciplinary (the latter is sometimes called "administrative leave"). A suspension decision is non-disciplinary when it occurs as a result of a routine, departmental policy that is initiated without any regard for the propriety of the employee's conduct. For example, it is common for police officers to be suspended with pay after discharging a firearm. During the period of this non-disciplinary suspension, the police department investigates the circumstances. The investigation could result in some kind of disciplinary action. Or it might result in commendation. The key factor is that a non-disciplinary suspension is initiated without regard to whether the employee's conduct fell below expectations. In contrast, a disciplinary suspension is always initiated precisely because the employee's conduct allegedly fell below expectations.

Here, it appears clear from the face of the records at issue that you were suspended under the Teacher Fair Dismissal Act. Such a suspension is clearly disciplinary in nature (thus meeting the first element for the release of employee-evaluation records). As noted above, a document under Ark. Code Ann. § 6-17-1508 clearly would be an evaluation record because it must be created by the employer and, pursuant to the statute, must set out the grounds for the disciplinary action.

b. Finality.

The next question is whether that disciplinary suspension ever became final. This is a question of fact to be determined by the records' custodian. Because the custodian has decided to release the records in response to the FOIA request at hand, the custodian presumably has determined that the first, so-called "finality" requirement has been met in this instance. Although I am not a factfinder in issuing opinions, this seems to be the case based on the face of the records. It appears from the records you have submitted that you resigned prior to any hearing by the school board. This office has consistently said that when an employee abandons an internal-appeals process before obtaining a ruling, the underlying adverse action is final for purposes of the FOIA. The manner in which the employee abandoned the appeal, whether by withdrawing the appeal or by resigning, as in this case, is irrelevant. If the rule were otherwise, then an employee could render every adverse employment action non-final (and thus prevent the release of evaluation records) by simply initiating and then, a day later, terminating an internal-appeals process. This office, together with two scholarly commentators on the FOIA, have long opined that when the FOIA uses the term "final," it refers to the "final decision making step taken by" the employer "regardless of the bureaucratic level at which the decision is made."

The lack of a school-board ruling, by itself, does not render suspensions non-final because, if it did, then every suspension that was not appealed to the board would also be non-final. Further, this office has already addressed this precise question in the area of Teacher Fair Dismissal. Therefore, in my opinion, your suspension became final when you resigned.

c. Formed a basis.

The issue of whether requested records "formed a basis" for a suspension (or termination) is generally interpreted to mean that the records in question reflect or detail the incidents or conduct that led to the suspension (or termination). This is also a question of fact for the custodian. But again, the custodian has apparently determined that the records at issue formed the basis for the suspension; and that determination appears consistent with the face of the records.

d. Compelling public interest.

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. Regarding 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 such cases.

It is my opinion, in conclusion, that all of the conditions for the release of the records are met in this case. Based on a review of the records, I conclude that they are correctly classified as employee-evaluation records and that the custodian has correctly decided to disclose them, as redacted.

Sincerely,

LESLIE RUTLEDGE
Attorney General