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 were employee evaluation records, and all four conditions in Ark. Code Ann. § 25-19-105(c)(1) were met: suspension or termination, final administrative resolution of that proceeding, records forming a basis for the decision, and a compelling public interest in disclosure.

Six disputed whether the records were responsive to the request. Rutledge said identifying responsive records was the custodian's task and outside the scope of her review.

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: For employee evaluation records, the opinion lists four conditions: the employee was suspended or terminated; that proceeding reached final administrative resolution; the records formed a basis for the suspension or termination decision; and the public has a compelling interest in disclosure. All four must be met.

Q: Can a city employee block disclosure?
A: The employee can ask the AG whether the custodian's release decision is consistent with FOIA. In this opinion, Rutledge reviewed the submitted records but said she could not decide Six's objection that the custodian had selected records outside the request's scope.

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.