Can a former public employee in Arkansas get a copy of the grievance file about her, including names of other employees mentioned?

Plain-English summary

The Arkansas Department of Workforce Services received a FOIA request for the grievance file and February 2017 hearing materials concerning Lizar Polk, a TANF Program Supervisor. The requester was the subject of the grievance (the person Polk had complained about). DWS proposed releasing the file with certain redactions. Polk asked the AG to review the decision.

Attorney General Leslie Rutledge approved most of the proposed release, but flagged two missing redactions and one factual question for the custodian.

The reasoning:

• Polk's grievance statement was Polk's own personnel record (a written employee complaint becomes the complainant's personnel record).
• The grievance file also contained personnel records of other employees named in the file, and was the evaluation record of the subject of the grievance (who was the requester).
• Under § 25-19-105(c)(2), the subject of records is entitled to access them. So the requester (the subject of the grievance) was entitled to the file.
• Under the Young v. Rice test, disclosing the personnel-record portions for other employees did not constitute a "clearly unwarranted invasion of personal privacy."
• Two missing redactions: (1) information on Bates-stamped page 046 that had to be redacted under the DWS Law, Ark. Code Ann. § 11-10-314(a)(1); and (2) a record on Bates-stamped pages 016 and 053 that appeared to be another employee's evaluation record. The AG could not tell from the face whether the four-prong test for releasing an evaluation record was met, so the custodian needed to apply the test based on full facts.

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: How can the same grievance document be both Polk's personnel record and the evaluation record of someone else? A: That is what makes it a "mixed record." The grievance statement is the complaining employee's personnel record, because the AG (echoing prior opinions) treats employee-initiated complaints as personnel records of the complainant. The records generated when the agency investigates the grievance (interviews, findings, decisions) are evaluation records of the subject of the grievance. So one file can simultaneously be Polk's personnel record, the subject's evaluation record, and contain personnel records of other employees mentioned in passing.

Q: Why was the requester entitled to the file even though parts of it were normally exempt? A: Section 25-19-105(c)(2) of the FOIA expressly overrides the personnel-record and evaluation-record exceptions for the subject of those records. "[A]ny personnel or evaluation records exempt from disclosure under [the FOIA] shall nonetheless be made available to the person about whom the records are maintained." So the subject of the grievance (the person being complained about) had a statutory right of access to her own evaluation records, even though the public did not.

Q: Why didn't the AG protect the privacy interests of the other employees mentioned? A: Under Young v. Rice, releasing personnel records about a person is permissible unless it would constitute a "clearly unwarranted invasion of personal privacy." That is a high bar. The thumb is on the scale for disclosure. The AG concluded that the names and roles of other employees mentioned in connection with a workplace grievance investigation did not rise above a de minimis privacy interest, and therefore did not satisfy the test for nondisclosure. Different facts (medical information, off-duty conduct, identifying details) might have changed the analysis.

Q: What was the DWS Law redaction the custodian missed? A: Ark. Code Ann. § 11-10-314(a)(1) imposes confidentiality on certain DWS information beyond what the FOIA covers. The opinion identifies a specific page in the grievance file where that information appeared and instructs the custodian to redact it. This is a category of confidentiality that runs orthogonal to FOIA's general exceptions and applies regardless of who is asking.

Q: What did the AG say about the second-employee evaluation record on pages 016 and 053? A: The AG could see from the face of the document that the records appeared to be another employee's evaluation records. To release them would require meeting the four-prong test in § 25-19-105(c)(1): suspension or termination, finality, basis for the decision, and compelling public interest. The AG could not assess prongs 1-3 without facts she did not have, and the compelling-interest prong was a custodian-level call. The AG sent the question back to the custodian to evaluate.

Q: What was the practical instruction?
A: Release the file with: (a) the custodian's existing proposed redactions; (b) the additional DWS Law redaction on page 046; (c) the additional review of the apparent second-employee evaluation records on pages 016 and 053. With those three categories handled, the release was consistent with the FOIA.

Background and statutory framework

Arkansas's FOIA strikes a deliberate balance between individual privacy and government transparency. The personnel-records exception is read narrowly because the statute itself describes itself as "narrowly construed" and the Young v. Rice balancing puts the thumb on disclosure. The evaluation-records exception is wider because the statute imposes four specific elements that must all be met before disclosure is required.

The subject-access rule in § 25-19-105(c)(2) is the relief valve. It ensures public employees can see what their own files say about them, regardless of whether the public can. Combined with the limited mandatory-notification rule in § 25-19-105(c)(3)(A) (the custodian must notify subjects of personnel or evaluation records of the disclosure decision), the FOIA gives subjects both visibility and a process.

This opinion, paired with the same-week Op. 2017-034, is a useful pair for understanding Arkansas's mixed-records approach. Both opinions affirm subject access. Both flag that the custodian must address other-employee redactions on a record-by-record basis. Both stop short of fact-finding the custodian's ultimate calls, leaving room for the records officer to apply the framework with full facts.

Citations

• Ark. Code Ann. § 11-10-314(a)(1) (DWS Law)
• Ark. Code Ann. § 25-19-105(b)(12), (b)(13), (b)(10)
• Ark. Code Ann. § 25-19-105(c)(1), (c)(2), (c)(3)
• Young v. Rice, 308 Ark. 593 (1992)
• Stilley v. McBride, 332 Ark. 306 (1998)
• Thomas v. Hall, 2012 Ark. 66

Source

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

Original opinion text

STATE 0 F ARKAN SAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2017-036
March 21, 2017
Lizar Polk, DWS TANF Program Supervisor
Helena Department of Workforce Services Office
819 Newman Drive
P. 0. Box 279
Helena, AR 72342
Dear Ms. Polk:
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. The Arkansas Department of Workforce Services (ADWS) has received a request under the FOIA for a copy of your grievance file and hearing held on February 28, 2017. The request for these records-which I will refer to herein as your "grievance file"-was submitted by the subject of the grievance. ADWS has determined that this person is entitled to obtain the records with certain redactions. You have asked whether the agency'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 custodian's decision to release this grievance file to the subject of the grievance is for the most part consistent with the FOIA. As noted below, there are several additional redactions that the custodian has failed to consider. But with these few exceptions, the records are subject to disclosure to the requestor in their entirety because the FOIA specifically authorizes a public employee to gain access to his or her own 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Lizar Polk Opinion No. 2017-036 Page 2 personnel records and employee evaluations. And in my opinion, the disclosure of the portions that are other employees' personnel records does not constitute a clearly unwarranted invasion of personal privacy under the relevant FOIA test, discussed below.1 I will set out all the definitions and standards and then apply them to the records you attached. 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 ADWS, 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 1 As discussed below, it appears from the face of the records that some portions are also either the personnel or evaluation records of other employees named therein. I do not know what notice has been provided to the subjects of these records, but the custodian should be aware that the FOIA requires notice to the subject of personnel or evaluation records of the custodian's decision as to whether the records are exempt from disclosure. See Ark. Code Ann.§ 25-19-105(c)(3)(A)(Supp. 2015)). 2 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015). Lizar Polk Opinion No. 2017-036 Page 3 It appears clear from the face of the documents that have been submitted for my review that they reflect the . performance or lack of performance of official functions of the ADWS employees named therein. Therefore, in my opinion, these documents meet the above "public records" definition 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.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 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- Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 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. § 25-19-105(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." Lizar Polk Opinion No. 2017-036 Page 4 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 Employee-complaint records created on an employee's own initiative-and not by or at the behest of the employer-are considered personnel records.7 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 that disclosure would constitute a clearly unwarranted invasion of personal privacy. "8 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,9 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 the scale tipped in favor of disclosure. 10 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.11 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. 12 Because the exceptions must be narrowly construed, the 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. 7 See Op. Att'y Gen. 2002-326 ("[A] document generated at an aggrieved employee's own instigation and subsequently conveyed to the employer constitutes a 'personnel record' ... "). 8 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins, et al., note 3 supra, at 208. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. 12 Id., 826 S.W.2d at 255. Lizar Polk Opinion No. 2017-036 Page 5 person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests.13 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.14 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15 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. CodeAnn. § 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).
13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., note 3 supra, at 207. 15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Lizar Polk Opinion No. 2017-036 Page 6

1. 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.16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.17 Additionally, some employee-related records constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one person's personnel record, or (3) more than one person's personnel record.18 If a document meets the above definition, the document cannot be released unless all the following elements have been met:
2. The employee was suspended or terminated (i.e., level of discipline);
3. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
4. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
5. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).19
   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: 16 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. 17 Thomas, 212 Ark. 66, at 9-10, 399 S.W.3d at 392-93. 18 See Ops. Att'y Gen. 2015-129, 2015-057. 19 Ark. Code Ann. § 25-19-105(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065. Lizar Polk Opinion No. 2017-036 Page 7
   [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, because that concern, at least theoretically, always exists. 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. 20 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, 21 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.22 III. Application. Both types of records-personnel records and employee evaluation records-are included in your grievance file. The grievance statement itself-like other complaints against public employees-is either the personnel record or the 20 Watkins, et al., note 3 supra, at 238-39 (footnotes omitted). 21 Id. at 237 (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."). 22 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. Lizar Polk Opinion No. 2017-036 Page 8 evaluation record of the subject of the grievance.23 The remaining records that were created as part of ADWS's investigation into the grievance are the evaluation records of the subject of the grievance. The subject of the grievance is entitled to obtain these records pursuant to subsection 25-19-105(c)(2) of the FOIA, which states that "[a]ny personnel or evaluation records exempt from disclosure under [the FOIA] shall nonetheless be made available to the person about whom the records are maintained .... "24 The grievance statement is also your personnel record. 25 And portions of some of the other records of the grievance investigation are the personnel records of other employees named therein.26 In my opinion, however, the disclosure of the grievance statement and those portions that qualify as other employees' personnel records does not constitute a clearly unwarranted invasion of personal privacy under FOIA test described above. Accordingly, it is my opinion that the custodian was correct in deciding that the grievance file must be disclosed to the requestor (who was the subject of the grievance) in its entirety (but with certain information redacted). Prior to releasing the records, however, the custodian must make one additional redaction to comply with the Department of Workforce Services Law.27 Additionally, a portion of one of the records appears to be the evaluation record of another employee. 28 I cannot 23 See, e.g., Op. Att'y Gen. 2012-074 (noting that most complaints against public employees are either the personnel records or employee evaluation records of the person being complained about). 24 Ark. Code Ann.§ 25-19-105(c)(2) (Repl. 2015) (emphasis added). 25 Op. Att'y Gen. 2014-027 (noting that "[t]his office has consistently held that when a public employee registers a written complaint against a supervisor or coworker, that complaint is the personnel record of the employee making the complaint."). 26 See Op. Att'y Gen. 2008-044 (noting that internal investigation records may mention other employees who were not the subject of the investigation, and that such records may also be the named employees' personnel records, in addition to being the evaluation records of the subject of the investigation). 27 The information to be redacted appears on Bates stamped page 046. Redaction is necessary pursuant to Ark. Code Ann. § 11-10-314(a)(l) (Supp. 2015). See Op. Att'y Gen. 2010-057 (and opinions cited therein). 28 The record I am referring to appears twice in the grievance file-Bates stamped pages 016 and
6. Lizar Polk
   Opinion No. 2017-036
   Page 9
   determine from the face of this record whether the test for release has been met. The custodian will have access to the necessary facts to make that decision. In conclusion, it is my opinion that the custodian's decision to release this grievance file to the subject of the grievance is for the most part consistent with the FOIA. There are several additional redactions that the custodian has failed to consider. But with these few exceptions, the records are subject to disclosure to the requestor in their entirety because the FOIA specifically authorizes a public employee to gain access to his or her own personnel records and employee evaluations. And in my opinion, the disclosure of the portions that are other employees' personnel records does not constitute a clearly unwarranted invasion of personal privacy under the relevant FOIA test. Sincerely,
   ~-,._·//~.,,
   LESLIE RUTLEDGE
   Attorney General