Could Faulkner County withhold investigation records when the employee wasn't suspended or fired?

Plain-English summary

Twentieth Judicial District Prosecuting Attorney J. Cody Hiland was asked, in an unusual posture, to act as Faulkner County's records custodian. The county HR director and county civil attorney had recused from a personnel investigation, and Hiland was appointed acting county civil attorney to finish it. Once it was complete, someone made a FOIA request for "the report and recommendations you gave the county regarding your findings in the now-complete investigation" of a county employee.

Hiland concluded he could not release the records because no termination or suspension had resulted from the investigation. He asked the AG to confirm that decision was consistent with FOIA. The AG agreed.

The reasoning is straightforward once you have the FOIA framework in hand. Internal investigation records that detail an employee's job performance qualify as "employee evaluation or job performance records" under the Thomas v. Hall test. Those records can only be released if all four conditions are met: (1) the employee was suspended or terminated; (2) there was a final administrative resolution; (3) the records formed a basis for that suspension or termination; and (4) the public has a compelling interest in disclosure. The first prong was not met here. Without a suspension or termination, the records stay closed.

Hiland flagged a wrinkle: one of the records contained a recitation of certain county personnel policies. Could that portion be released even if the rest of the document was withheld? The AG said no. She found, on the face of this particular record, that the policy recitation was created as part of the evaluation record and should be withheld with it.

The opinion has a wider lesson for custodians: classification first, then test. Step one is deciding whether a record is a personnel record under § 25-19-105(b)(12) or an evaluation record under § 25-19-105(c)(1). Step two is applying the right test for that category. Hiland's correspondence showed he had done both correctly: he classified the closed-investigation reports and supporting exhibits as evaluation records, then applied the four-prong test and found it not satisfied.

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.

Background and statutory framework

The two key FOIA exemptions for employee-related records are:

Personnel records under Ark. Code Ann. § 25-19-105(b)(12), which are open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test.

Employee evaluation or job performance records under Ark. Code Ann. § 25-19-105(c)(1), which are closed unless all four conditions are met: suspension or termination, final administrative resolution, records formed a basis for the discipline, and compelling public interest. The Arkansas Supreme Court in Thomas v. Hall (2012) defined these records as those "(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," explicitly including investigation records about employee misconduct.

The four conditions are conjunctive. Failing any one keeps the record closed. Where investigation documents qualify as employee evaluation records, a case with no suspension or termination fails the first disclosure condition.

The "compelling public interest" element is not defined by statute. The leading FOIA commentators (Watkins, Peltz-Steele, and Steinbuch) suggest factors: nature of the infraction (especially public-trust violations or gross incompetence), existence of related public controversy, and the employee's position within the agency. They say a compelling public interest is more likely for a higher-ranking employee than for a rank-and-file worker.

The opinion says the exception's primary purpose is to preserve the confidentiality of formal job evaluations and promote honest exchanges between employee and employer.

Common questions

Could the requester get the closed-investigation report from Faulkner County? No. The employee was not suspended or terminated, so the four-prong test for releasing evaluation records was not met.

Does completing an investigation make its evaluation records public? No. The opinion applies the statute's suspension-or-termination condition to the records it examined. That condition was not met here.

What about the part of the report that just recited county personnel policies? The AG found that this particular policy recitation was created as part of the evaluation record and was fully part of it. She said the portion should be withheld because the disclosure test was not met.

Why protect investigation reports if the employee wasn't disciplined? The opinion says the evaluation exception preserves confidentiality in the formal job-evaluation process to promote honest exchanges between employer and employee. The AG did not say what the investigation found about this employee.

Did the AG rule on access by the employee who was investigated? No. The opinion decided whether the custodian could release these records in response to the FOIA request described by Hiland.

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTORN EY G EN ERAL
LE SLI E RU TLEDGE

Opinion No. 2017-102

September 27, 2017

The Honorable J. Cody Hiland
Prosecuting Attorney
Twentieth Judicial District
Faulkner County Courthouse
Post Office Box 550
Conway, AR 72033

Dear Mr. Hiland:

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, a 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 your office has received a FOIA request for "the report and recommendations you gave the county regarding your findings in the now-complete investigation of [a Faulkner County employee]." You have attached several documents that you believe are responsive to the request, and you have stated that you are "of the opinion that [you] are unable to release the enclosed documentation and supporting exhibits . . . since no termination or suspension occurred as a result of [your] investigation and assessment." You have thus determined that the test for the release of the requested records has not been met. You ask whether your 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 you have properly classified the records presented as employee evaluation/job performance records.

323 CENTE R STREET. SU ITE 200 · LITTL E ROC K. ARKAN SAS 7220 1 TE LEPHONE (50 1) 682-200 7 · FAX (501) 682-8084 ARKAN SAS AG. GO V

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page 2

Because, as I understand it, the employee in question has not been suspended or terminated, these records are shielded from disclosure under the applicable test. It is therefore my opinion that your decision is consistent with the FOIA.

However, you noted that a portion of one of the records you plan to withhold as an employee evaluation record recites certain specific county personnel policies. You suggest, without directly stating so, that this portion of the evaluation record might be releasable under FOIA. In my opinion, it is clear from the face of the record that this portion was created as part of the employee evaluation record and is fully a part thereof. Accordingly, it should not be released because the applicable test for disclosure is not met.

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 the county, which is a public entity. As for the second element, the FOIA defines a "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. 1

1
Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015).

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page 3

As I understand it, all of the attached documents were created or collected as part of an internal county personnel investigation initially commenced by the county's human resources and legal departments, but which you completed. 2 Accordingly, in my opinion, all the attached documents reflect the performance or lack of performance of official functions of both the employees creating or providing the documents. 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. 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.

2
According to your correspondence, both the county's human-resources director (and deputy county attorney) and the county civil attorney later recused themselves from investigating this personnel matter after it was initiated. As a result, you were appointed acting county civil attorney to complete the investigation. 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)(1 ): "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."

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page4

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 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 the scale tipped in favor of 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

6
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
7
Ark. Code Ann.§ 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.
10
Young, 308 Ark at 598, 826 S.W.2d at 255.

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page 5

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

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));

• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• 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);

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. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page 6

• 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 exemption from disclosure-and the one that is relevant here-is for "employee evaluation or job performance records." Again, the FOIA does not define these terms. 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

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 leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

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, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
17
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
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" • 18 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, 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 exception 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.

According to the information you have supplied, the documents submitted for my review were created at the behest of the employer-that is, the county, acting through its human-resources director and its civil attorney-to evaluate and detail an employee's job performance. This clearly meets the Thomas definition of employee evaluation records. As employee evaluation records, they cannot be

18
Watkins, et al., at 238-39 (footnotes omitted).
19
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.").

°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
2

The Honorable J. Cody Hiland
Pros. Att'y, 20th Judicial District
Opinion No. 2017-102
Page 8

released unless all the elements for disclosure listed above are met. 21 According to your correspondence, the first element has not been met, in that the employee in question has not been suspended or terminated. Accordingly, these documents cannot be disclosed, and your decision to withhold them is consistent with the FOIA.

With respect to the portion of one record, the release of which you questioned, it is my opinion that the entire document is exempt from disclosure and must be withheld. This is because that portion was plainly created as part of that employee evaluation record.

In conclusion, you, as the custodian, have properly classified all the attached documents as employee evaluation records, and you have properly determined that the documents are exempt from disclosure because the employee being evaluated has not been suspended or terminated. In my opinion, given the foregoing analysis, your decision is consistent with the FOIA.

Sincerely,

.=:=.;~::;;::>- L, //~7
LESLIE RUTLEDGE
Attorney General

21
See text accompanying note 17 supra.