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 asked Blytheville School District for records about the employment status of a district employee. The custodian decided to withhold records it classified as employee-evaluation records. After reviewing the records, Attorney General Leslie Rutledge agreed with their classification and found the withholding decision consistent with the Arkansas FOIA at that time.

Public release of employee-evaluation records requires four conditions: the employee was suspended or terminated; that proceeding reached a final administrative resolution; the records formed a basis for the decision; and the public has a compelling interest in disclosure. The custodian said no suspension or termination proceeding had reached final administrative resolution, and the AG said the face of the submitted records supported that determination. She could not act as a factfinder and stated her conclusion conditionally: if no suspension or termination had become final, the records were exempt at that point.

The opinion does not discuss pending appeals or describe what administrative steps remained. It also does not decide the release status of any different record that might qualify as a personnel record rather than an evaluation record.

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

School district custodians

Classify the requested records and verify whether a suspension or termination proceeding has reached final administrative resolution. The AG approved withholding these particular evaluation records based on the custodian's reported facts and the face of the records, while leaving factfinding to the custodian.

Requesters and employees

This opinion upholds withholding at the time of this request. It does not say that every employment-status document is an evaluation record or that a particular appeal was pending.

Common questions

Q: Did the AG approve withholding the records she reviewed?
A: Yes. She found they were employee-evaluation records and that withholding was consistent with the FOIA on the facts presented.

Q: What conditions must be met for public release of an evaluation record?
A: Suspension or termination, final administrative resolution of that proceeding, a record that formed a basis for the decision, and a compelling public interest in disclosure.

Q: Did the opinion hold that an appeal was pending?
A: No. It says only that the custodian found no final administrative resolution of a suspension or termination proceeding.

Background and statutory framework

The opinion defines an employee-evaluation record as one created by or at the employer's behest to evaluate an employee and detailing performance or lack of performance on the job. It says the purpose of the release exception is to preserve confidentiality in the formal evaluation process. The AG limited her analysis to the evaluation exception because the submitted records fit that category.

Citations and references

Statute: Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), authorizing AG review of the custodian's decision.

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