Can an Arkansas school district withhold employee evaluation records from a FOIA request if no final discipline has been imposed?

Plain-English summary

KAIT-TV requested records about the employment status of an employee of Blytheville School District #5. The district's records custodian determined the records were employee evaluation records and that they should not be released because no suspension or termination had become administratively final. The custodian asked the AG (through counsel) whether that call was consistent with the FOIA.

AG Leslie Rutledge said yes. Employee evaluation records, sometimes called "job performance" records, are subject to a four-part test before they can be released. All four prongs must be met: there must have been a suspension or termination, the discipline must be administratively final, the records must have formed a basis for the discipline, and the public must have a compelling interest in their release. With no final discipline, prong two fails and the records stay confidential.

The opinion turns on the standard Arkansas Supreme Court definition from Thomas v. Hall: an employee evaluation or job performance record is one that is (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that details the employee's performance or lack of performance on the job.

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 four-part test for releasing employee evaluation records?
A: All of the following must be true: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution of that proceeding, (3) the withheld records formed a basis for the suspension or termination, and (4) the public has a compelling interest in their release. The statute is at Ark. Code Ann. § 25-19-105(c)(1).

Q: How is an "employee evaluation record" different from a "personnel record"?
A: A personnel record covers items like applications, payroll information, transfers, and similar materials that pertain to an individual employee but were not created to evaluate the employee. An employee evaluation record is created by or at the employer's behest to evaluate the employee and details performance or lack of performance. Different exemptions, different tests.

Q: If the discipline is still pending appeal, can the records be released?
A: No. The "administratively final" prong is not met if appeals or further administrative review are still possible. The opinion is explicit on this point.

Q: Why does Arkansas protect these records so heavily?
A: To preserve honest exchanges in the employee-evaluation process. If supervisors believed their candid notes would be disclosed at the first whiff of media interest, the AG and Arkansas commentators worry that the evaluations would lose their value.

Q: Who can ask the AG to review a custodian's decision?
A: Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the custodian, the requester, or the subject of the records can request an AG opinion stating whether the custodian's decision is consistent with the FOIA.

Background and statutory framework

Arkansas' FOIA is at Ark. Code Ann. § 25-19-101 et seq. The general rule is that a public record must be disclosed if (1) the request goes to an entity subject to the act, (2) the document is a public record, and (3) no exemption shields it. Two exemptions are central to employee files.

The "personnel records" exemption at § 25-19-105(b)(12) protects personnel records from release "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." That test runs through the Young v. Rice balancing analysis.

The "employee evaluation or job performance records" exception at § 25-19-105(c)(1) is stricter. It says these records "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." All elements must be present for the records to be released.

The Arkansas Supreme Court synthesized the test in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: an employee evaluation record is one (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that details the employee's performance or lack of performance on the job.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian opinion request)

Cases:

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

Source

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

Original opinion text

Opinion No. 2016-120
November 29, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Robert L. Coleman
Reid, Burge, Prevallet & Coleman
417 North Broadway Street
P. O. Box 107
Blytheville, AR 72316-0107

Dear Mr. Coleman:

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 and attachments indicate that the Blytheville School District #5 has received an FOIA request from KAIT-TV for records regarding the employment status of a particular District employee. You have provided certain records for my review, which you indicate qualify as employee evaluation records. You state that the District has determined the records are not subject to disclosure at this time. You ask, on behalf of the District, whether this decision is consistent with the FOIA.

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 1) the records qualify as employee evaluation records; and 2) based on the face of the records, the custodian's decision to withhold them from disclosure at this time 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.

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.

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. Here, it appears clear from the face of the records you have submitted for my review that they constitute employee evaluation records under the above definition of that category of records. Accordingly, one necessary condition for the release of the records is that they formed a basis for the employee's final suspension or termination. This is a question of fact to be determined by the records' custodian. The custodian in this case has evidently determined that there has been no final administrative resolution of any suspension or termination proceeding. Although I cannot act as a factfinder when rendering opinions pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i), a review of the records on their face supports that determination. If, as a matter of fact, there has been no suspension or termination that has become final, then the records are exempt from disclosure at this point.

It is therefore my opinion that the custodian has correctly decided to withhold the records from disclosure at this time. The records qualify as employee evaluation records; and there apparently has been no final administrative resolution of any suspension or termination proceeding.

Sincerely,

LESLIE RUTLEDGE
Attorney General