When can a Fort Smith Traffic Control Manager's disciplinary records be released under the Arkansas FOIA?

Plain-English summary

Gary Six, Traffic Control Manager at the Fort Smith Streets Department, objected to the custodian's decision to release records of an adverse disciplinary action. The Arkansas AG concluded the release was consistent with the FOIA: the records are employee evaluation records, and the statutory release conditions in Ark. Code Ann. § 25-19-105(c)(1) (final administrative resolution, records form basis for decision, compelling public interest) were satisfied.

This opinion is a companion to AR AG Opinion 2016-135, which reached the same conclusion for another Fort Smith Streets Department employee. Together they illustrate the AG's application of the three-prong release test for disciplinary records.

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's the standard for releasing public-employee disciplinary records?
A: Three conditions under § 25-19-105(c)(1): final administrative resolution (suspension, termination, or comparable final action), the records form the basis for the decision, and a compelling public interest in disclosure. All three must be met.

Q: Can a city employee block disclosure?
A: The employee can request an AG opinion on whether the custodian's release decision is consistent with FOIA. The AG opinion is advisory; the final decision rests with the custodian and, ultimately, the courts.

Source

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

Official summary

Is the decision of the custodian of records to release records relating to a recent adverse disciplinary action against an employee consistent with the Arkansas Freedom of Information Act (FOIA)? RESPONSE: In my opinion, the records at issue are properly classified as employee evaluation records and the custodian's decision to release the records is consistent with the FOIA.

Original opinion text

Opinion No. 2016-137
December 16, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESUE RUTLEDGE
Gary Six, Traffic Control Manager
Fort Smith Streets Department
3900 Kelley Highway
Fort Smith, AR 72904
Dear Mr. Six:
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 someone has requested records under the
FOIA relating to a recent adverse disciplinary action pertaining to you. The
custodian of records has determined that the requested documents constitute
employee evaluation records and that the records are subject to disclosure. You
object to the records' release, stating that you "don't feel that [your] personnel file
should be released as it doesn't pertain to the gentlemen's request or the nature of
it. He has not only been given incorrect information but he has begun an online
campaign to discredit not only [your] name but [your] moral standings." You
further request that your information not be released "as nothing [you] did
interfered with City business, caused the loss of City funds nor conflicted with
[your] job performance."
You have submitted the records for my review and have asked whether the
custodian's decision to release them is consistent with the FOIA.
323 CENTER STREET, SUITE 200 · LlTTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Gary Six, Traffic Control Manager
Opinion No. 2016-137
Page 2
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. I must emphasize as a preliminary matter in this regard that my duty is
limited to reviewing the custodian's decision with respect to the release of
personnel or employee evaluation records that the custodian has determined are
responsive to the request. I am not authorized or required to address concerns
about whether the custodian has properly identified records that are responsive to
the instant FOIA request. Identifying records responsive to the request is a task
uniquely within the custodian's purview, both as a statutory matter and as a
practical matter because it requires factual determinations that are outside the
scope of an opinion from this office. 1 I have not been given the power or duty to
compel the production of records or, if necessary, to act as a fact-finder in
rendering opinions concerning them.2 The FOIA has no provision establishing a
state compliance office and does not authorize the Attorney General to enforce
FOIA requests.3
With regard to the records at issue in this case, it is my opinion that (1) they are
properly classified as employee evaluation records; and (2) the custodian's
decision to release the records 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.
1 See Ops. Att'y Gen. 2016-043, 2011-094, and 2006-158.
2 See Op. Att'y Gen. 2005-236 (and opinions cited therein).
3 The FOIA provides two methods of enforcement. First, if a citizen believes the FOIA has been
violated, he may contact the county prosecuting attorney and request that criminal charges be
filed against the custodian of the public records. Second, if the prosecutor views the complaint as
a civil matter, the citizen may file his own lawsuit in circuit court. Ark. Code Ann. § 25-19-107. Gary Six, Traffic Control Manager
Opinion No. 2016-137
Page 3
The first two elements appear met in this case. As for the first element, the
documents are held by the City of Fort Smith, which is a public entity. As for the
second element, the FOIA defines "public record" as:
[W]ritings, 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.4
Therefore, in my opinion, these documents are public records 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.5 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records"6 or "employee
evaluation or job performance records."7 The test for whether these two types of
documents may be released differs significantly.
4 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2015).
5 This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-without-pay; certificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins & Richard J. Peltz,
THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).
6 Ark. Code Ann.§ 25-19-105(b)(l2): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion
of personal privacy."
7
Ark. Code Ann. § 25-19-lOS(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all
employee evaluation or job performance records, including preliminary notes and other materials,
shall be open to public inspection only upon final administrative resolution of any suspension or Gary Six, Traffic Control Manager
Opinion No. 2016-137
Page 4
The custodian, in this instance, has identified the records responsive to the instant
FOIA request as employee evaluation records. Because I believe that is the proper
classification of the records at issue, I will limit my discussion to that particular
category of record.
The FOIA does not provide a specific definition for "employee evaluation or job
performance records." But the Arkansas Supreme Court has 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. 8 This exception includes records generated
while investigating allegations of employee misconduct that detail incidents that
gave rise to an allegation of misconduct. 9
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).10
   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:
   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."
   8 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
   2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
   9 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
   10 Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065. Gary Six, Traffic Control Manager
   Opinion No. 2016-137
   Page 5
   [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"
   • 11 reqmrement.
   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, 12 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.13
   III. Application.
   This office has consistently opined that a document detailing the reasons that
   served as a basis for disciplinary action is an employee-evaluation record for
   purposes of the FOIA.14 The "Notice of Disciplinary Action Form" and the
   memorandum dated October 27, 2016, clearly fall into this category. Accordingly,
   11 Watkins & Peltz, supra note 2, at 217-18 (footnotes omitted).
   12 Id. at 216 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   13 Cf Op. Att'y Gen. 96-168; Watkins & Peltz at 204.
   14 Ops. Att'y Gen. 2016-057, 2014-129, 2012-041, 2011-068, 2009-210, 2006-026, 95-171. Gary Six, Traffic Control Manager
   Opinion No. 2016-137
   Page 6
   in my opinion, the custodian has properly determined that the records in question
   are employee evaluation records. As such, the records cannot be released unless
   all four of the conditions outlined above are met. It appears that the first three
   conditions are met in this case.15 This leaves open only the question whether the
   circumstances prompting the disciplinary action are of compelling public interest.
   This office has repeatedly opined that, in certain situations, a compelling public
   interest exists in the disclosure of documents containing certain categories of
   information.16 The absence of a public controversy may be of minimal
   significance in these cases.17 There is "a strong case for the finding of a
   compelling public interest" where disciplinary records reflect a "violation of
   administrative rules and policies aimed at conduct which could undermine the
   public trust and/or compromise public safety."18
   In this case, it appears from the face of the records that the activities detailed
   therein violated city personnel policies aimed at conduct which could undermine
   the public trust. Accordingly, it is my conclusion that the "compelling public
   interest" standard is met with respect to the records in question. Because the other
   conditions under § 25-19-105( c )(1) for release of the records have also been met,
   it is my opinion that the custodian's decision to release the records is consistent
   with the FOIA.
   Sincerely,
   ~SLIE~~
   Attorney General
   15 With regard to the "formed a basis" element, a document detailing disciplinary action, although
   written contemporaneously with the disciplinary action, has been classified by this office as
   forming a basis for the action where it reflects or details the incident(s) or conduct that led to the
   discipline. See Ops. Att'y Gen. 2015-057 and 2005-030, n. 3. Accord Op. Att'y Gen. 2006-026
   (regarding a letter of termination).
   16 E.g., Ops. Att'y Gen. 2016-057, 2014-052, 2003-072, 2001-343, 98-210, 98-075, and 97-400.
   17 Op. Att'y Gen. 2014-122.
   18 Ops. Att'y Gen. 2012-069, 2003-072, 2001-343, 98-210, 98-075, 97-400 and 92-319.