Can a former Arkansas city employee block release of disciplinary documents from his personnel file?

Plain-English summary

The City of Jonesboro received a FOIA request that included several documents from the personnel file of former city employee Erick Woodruff. The custodian planned to release the records. Woodruff objected on four grounds: (1) the disciplinary action against him was based on a consultant's opinion, not his immediate supervisor; (2) the records could be misused if litigation were filed; (3) release could damage his professional credibility; and (4) the city was selectively releasing negative documents while withholding positive ones.

Attorney General Leslie Rutledge confirmed the custodian's decision was generally consistent with the FOIA. The records were properly classified as employee evaluation records under § 25-19-105(c)(1). The four-prong test for releasing evaluation records (suspension or termination, finality, basis for the decision, compelling public interest) appeared to be satisfied based on the information before her. The AG flagged three records that appeared to contain home addresses, which had to be redacted under § 25-19-105(b)(13) before release.

The AG declined to engage with Woodruff's substantive objections about the fairness of the discipline or the city's selective release. Those concerns are about the fact-finding underlying the discipline and the city's records-management practices, not about whether the records met the FOIA test for disclosure. The AG's review was statutory and procedural: do the records qualify, are the right redactions in place. They did, and the redactions were nearly complete.

Currency note

This opinion was issued in 2017. 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-prong test for releasing employee evaluation records?
A: Under § 25-19-105(c)(1) and Thomas v. Hall (2012), an evaluation record can be released only if all four are met:

1. The employee was suspended or terminated.
2. There has been a final administrative resolution of the suspension or termination.
3. The records formed a basis for the decision.
4. There is a compelling public interest in disclosure.

Without all four, the records remain confidential. The AG concluded all four prongs were satisfied here based on the materials submitted.

Q: What counts as "compelling public interest" for the fourth prong?
A: From the leading FOIA commentators (Watkins and Peltz): a general interest in public-employee performance is not enough. Compelling interest requires 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." The "status of the employee" or "his rank within the bureaucratic hierarchy" matters. High-level employees and serious infractions are more likely to satisfy this prong than rank-and-file employees and routine personnel matters.

Q: Why didn't the AG address Woodruff's substantive objections?
A: The AG's review under § 25-19-105(c)(3)(B)(i) is procedural. It asks whether the custodian properly applied the FOIA test. It does not address whether the underlying discipline was fair, whether the city should also release positive records, or whether the disclosure could be used in litigation. Those are separate concerns that fall outside the AG's statutory mandate for FOIA review.

Q: What is the home-address redaction requirement?
A: Section 25-19-105(b)(13) requires redaction of "personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses." The AG specifically flagged three records that "look[ed]" to contain home addresses and instructed the custodian to confirm and redact.

Q: Could the city refuse to release positive records to balance the picture?
A: That issue was not directly addressed. FOIA generally responds to specific requests, not to the requester's overall portrait of the employee. If a requester asked for "all" personnel records, the city would have to produce all responsive records (with redactions). If the requester asked for "disciplinary records only," the city is not required to volunteer positive records. Whether the requester here asked broadly or narrowly was not stated, but the AG addressed only the records the custodian had decided to release.

Q: Does former-employee status matter?
A: Not for FOIA disclosure analysis. Records covered by the personnel-records or evaluation-records exceptions are governed by the same tests whether the employee is current or former. What changes for former employees is sometimes the litigation timeline (potential employment-law claims may be time-barred or pending), but not the FOIA framework itself.

Background and statutory framework

The four-prong test for evaluation records is the most demanding personnel exception in the Arkansas FOIA. It exists because evaluation records often contain frank assessments that, if routinely released, would deter honest evaluation. The four prongs ensure that release happens only when the evaluation has crystallized into formal discipline (suspension or termination), the discipline is final, the records actually contributed to the discipline decision, and there is a specific reason the public needs to know.

The "compelling public interest" prong is where most disputes arise. The leading commentators' three-factor list (nature of infraction, public controversy, position of employee) is the standard guide, and the AG cites it in nearly every evaluation-records review. For a former employee whose discipline became final before separation, the calculus typically favors release: the employer's interest in confidentiality is reduced, and the public interest in knowing why a public employee was disciplined remains.

This opinion is most useful as an example of the AG's review when the four-prong test is met and only minor redactions remain.

Citations

• Ark. Code Ann. § 25-19-103(7)(A)
• Ark. Code Ann. § 25-19-105(b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Thomas v. Hall, 2012 Ark. 66
• Young v. Rice, 308 Ark. 593 (1992)

Source

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

Original opinion text

Opinion No. 2017-026
March 1, 2017
Mr. Erick Woodruff
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Bill Campbell, Director of Communications
City of Jonesboro
P.O. Box 1845
Jonesboro, AR 72403-1845
Dear Mr. Woodruff:
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 several documents
under the FOIA, though you do not indicate precisely what the request seeks. You
have, however, attached several documents that the records custodian has
determined to be responsive to the request. You object to the release of these
records for the following reasons: 1) You say you "received inappropriate
disciplinary action based on the opinion of a consultant and not [your] immediate
supervisor;" 2) you say "the release of these files has the potential to misconstrue
opinions if litigation is sought;" 3) you say that "the release of these files has the
potential to ruin [your] professional creditability [sic] in the future;" and 4) you
say "the City of Jonesboro is attempting to portray [you] in a negative light by not
releasing positive documents within [your files]. ... " You ask whether, under the
circumstances, the custodian's 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 the documents are
323 CENTER. STREET, SUITE 200 · LITTLE ROCK, AR.KANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Erick Woodruff
Opinion No. 2017-026
Page 2
properly classified as employee evaluation records. Additionally, based on the
information before me, the custodian's decision to release the records appears
consistent with the FOIA. But three of the records contain what looks to be a
home address.1 If this is the case, this information must be redacted prior to the
records' release.
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.
The first two elements appear met in this case. As for the first element, the
documents are held by the City of Jonesboro, 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.2
As I understand it, all the attached documents were created to evaluate your job
performance as a senior employee of the City of Jonesboro. Accordingly, all the
attached documents reflect the performance or lack of performance of official
functions of both you and the city employee creating or providing the documents.
Therefore, in my opinion, these documents are public records and must be
disclosed unless some specific exception provides otherwise.
1 The three records at issue are a letter dated January 9, 2017, from the city's chief financial
officer; and letters dated January 17, 2017, and January 27, 2017, from the mayor.
2 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015). Erick Woodruff
Opinion No. 2017-026
Page 3
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files.3 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records"4 or "employee
evaluation or job performance records."5 The test for whether these two types of
documents may be released differs significantly.
When custodians assess whether either of these exceptions applies to a particular
record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.
a. Personnel-records exception.
The first of the two most relevant potential exceptions is the one for "personnel
records," which the FOIA does not define. But this office has consistently opined
that "personnel records" are all records other than employee evaluation and job
performance records that pertain to individual employees. 6 Whether a particular
record meets this definition is, of course, a question of fact that can only be
definitively determined by reviewing the record itself. If a document meets this
definition, then it is open to public inspection and copying except "to the extent
3 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 lNFORMA TION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).
4 Ark. Code Ann. § 25-19-105(b)(12): "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."
5 Ark. Code Ann. § 25-19-lOS(c)(l): "Notwithstanding subdivision (b)(12) 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
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."
6 See, e.g., Op. Att'y Gen. 99-147; Watkins & Peltz at 187. Erick Woodruff
Opinion No. 2017-026
Page 4
that disclosure would constitute a clearly unwarranted invasion of personal
privacy."7
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,8 has provided
some guidance. To determine whether the release of a personnel record would
constitute a "clearly unwarranted invasion of personal privacy," the Court applies
a balancing test that weighs the public's interest in accessing the records against
the individual's interest in keeping them private. The balancing takes place with a
thumb on the scale favoring disclosure. 9
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimis
privacy interest.10 If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. 11 Because the exceptions must be narrowly construed, the
person resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests.12 The fact that
the subject of any such records may consider release of the records an unwarranted
invasion of personal privacy is irrelevant to the analysis because the test is
objective. 13
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.14
7 Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2015).
8 308 Ark. 593, 826 S.W.2d 252 (1992).
9 Watkins & Peltz, supra note 3, at 191.
10 Young, 308 Ark at 598, 826 S.W.2d at 255.
11 Id., 826 S.W.2d at 255.
12 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13 E.g., Ops. Att'y Gen. 2001-112, 2001-022, 94-198.
14 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Erick Woodruff
Opinion No. 2017-026
Page 5
Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:
• Personal contact information of public employees, including personal
telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann.§ 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. Att'y
Gen. 2001-080;
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently
working undercover (Ark. Code Ann. § 25-19-105(b )( 10) );
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define. 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.15 This exception includes records generated while investigating
allegations of employee misconduct that detail incidents that gave rise to an
allegation of misconduct.16
15 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.
16 Thomas, 212 Ark. 66, at 9-10, 399 S.W.3d at 392-93. Erick Woodruff
Opinion No. 2017-026
Page 6
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).17
   As for the final prong, the FOIA never defines the key phrase "compelling public
   interest." But the 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.18
   These commentators also note that "the status of the employee" or "his rank
   within the bureaucratic hierarchy" may be relevant in determining whether a
   17 Ark. Code Ann. § 25-19-lOS(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065.
   18 Watkins & Peltz, supra note 3, at 217-18 (footnotes omitted). Erick Woodruff
   Opinion No. 2017-026
   Page 7
   "compelling public interest" exists, 19 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 exemption is to preserve the confidentiality of the
   formal job-evaluation process in order to promote honest exchanges in the
   employee/employer relationship. 20
   III. Application.
   As I understand it, the documents in question-which detail your performance or
   lack of performance as a city employee-were created by or at the behest of the
   employer to evaluate you. Your first stated objection to the release of these
   documents-that they were based on the opinion of a consultant and not your
   immediate supervisor-is not a recognized basis under the FOIA for not
   disclosing otherwise releasable employee evaluation records.
   The first two elements for the release of the records clearly have been met in this
   instance (that is, level of discipline and finality). As to the third element, the
   records custodian has made the factual determination that the records, taken in the
   aggregate, formed the basis for the decision to suspend or terminate your
   employment. Based upon my review of the records before me, I cannot say that
   the custodian's determination in that regard is wrong. This then leaves us to
   examine whether there is a "compelling public interest" in the records.
   Two of your objections to the release of these records touch upon the compelling
   public interest prong (i.e., that the release of the records has the potential to 1)
   "misconstrue opinions" if litigation is sought and 2) damage your professional
   credibility). As this office has recognized, the General Assembly enacted what is
   now codified as section 25-19-lOS(c)(l) to the FOIA in part because "as a general
   matter, the confidentiality of personnel records and employee evaluation records is
   in the public interest to ensure the privacy of employees and the efficacy of the
   employee evaluation process."21 The legislature added, however, that such records
   19 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.").
   2° Cf Op. Att'y Gen. 96-168; Watkins & Peltz at 204.
   21 1987 Ark. Acts No. 49, § 5. Accord Thomas, 2012 Ark. 66 at 6-7, 399 S.W.3d at 391; Op.
   Att'y Gen. 88-094. Erick Woodruff
   Opinion No. 2017-026
   Page 8
   should be open to public inspection "in certain circumstances .... "22 The leading
   FOIA commentators have observed that, while the balance scales for personnel
   records are tipped in favor of disclosure, the legislature's use of the term
   "compelling public interest" with respect to employee evaluation records suggests
   that the General Assembly intended a different approach to those records.23 "Use
   of the term 'compelling' suggests the balance perhaps should be struck in favor of
   nondisclosure; in any event the scales are at least 'even.' "24
   As stated above, the question whether a compelling public interest exists is always
   a factual one that the custodian must determine after considering all of the relevant
   information. In this instance, the custodian has made the determination that a
   compelling public interest is present.
   In evaluating the custodian's decision, I note that you were the top-level manager
   of a department that many people might consider an increasingly important aspect
   of modern municipal government. Moreover, the notice you were provided that
   was appended to your email seeking my opinion stated that "numerous media
   outlets" (meaning more than just a single media outlet) have made FOIA requests
   for your records. While neither of these aspects is necessarily controlling standing
   alone, 25 together they can lend some credence to the custodian's decision that there
   is compelling public interest in the records. Based on the information before me,
   it is my opinion that the custodian's decision as to this final element of the test is
   consistent with the FOIA.
   Accordingly, it is my opinion that the custodian has properly decided to release the
   records. I notice, however, that three of the records contain what appears to be a
   home address. If that is the case, that address must be redacted prior to release.
   Your final objection to the release of the records at issue is based on your
   contention that the city is attempting to portray you "in a negative light" by not
   releasing documents from your file that reflect positively on you and your job
   performance. This is because employee evaluation or job performance records are
   22 Id.
   23 See Watkins & Peltz, supra note 3, at 214.
   24 Id.
   25 See id. at 216 (and cases and opinions cited therein). Erick Woodruff
   Opinion No. 2017-026
   Page 9
   not subject to disclosure under FOIA unless all four factors listed above necessary
   for such records' release are present.
   This may seem like a harsh or unfair state of the law, wherein certain records
   reflecting unfavorable job performance may be releasable by a public entity, but
   documents reflecting favorable job performance are not releasable. I will only
   note that this office previously concluded in an analogous context that this rule is
   mitigated by the fact that employees or former employees have access to their own
   personnel and evaluation records under section 25-19-105(c)(2) and thus may
   release any and all favorable records themselves if they so choose.26
   In conclusion, it is my opinion that the custodian's decision in this instance to
   release your employee evaluation records is generally consistent with the FOIA.
   As I noted above, however, it appears that certain redactions to some of these
   records must be made prior to their release.
   Sincerely,
   ~-,:· /~.,,
   LESLIE RUTLEDGE
   Attorney General
   26 Accord Op. Att'y Gen. 2006-182 at 7 (and opinions cited therein).