Can the Arkansas House Speaker withhold a sexual harassment investigation document about a legislator under FOIA?

Plain-English summary

Speaker of the House Jeremy Gillam asked the AG to review a House decision withholding records under a FOIA request seeking "any documents, records, or correspondence related to complaints of sexual misconduct or harassment made against legislators since the year 2008." The Speaker had identified one redacted document as responsive and had relied on two FOIA exemptions: § 25-19-105(b)(7) (unpublished memoranda, working papers, and correspondence of legislators) and § 25-19-105(c)(1) (employee evaluation or job performance records). He had also alternatively relied on § 25-19-105(b)(12) (personnel records that would constitute a clearly unwarranted invasion of privacy if released).

The AG agreed with the withholding decision. The opinion focused on the employee-evaluation exemption, concluding that the document met all four elements of § 25-19-105(c)(1) and was exempt. Under Thomas v. Hall's three-part definition, employee-evaluation records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance or lack of performance. The Speaker had said the document "was created in connection with the investigation of alleged harassment." That qualifies. Investigation records about alleged employee misconduct, including sexual harassment, fall within the evaluation-records definition under settled AG and Arkansas Supreme Court doctrine.

The AG noted in a footnote that the employee-evaluation exemption "applies to members of the Arkansas General Assembly who, pursuant to the Arkansas Constitution, are subject to punishment by the House and Senate" under Article 5, § 12. So legislators are "employees" for FOIA classification purposes when their conduct is investigated by their own legislative body. The AG did not reach the working-papers exemption under § 25-19-105(b)(7) because the employee-evaluation analysis was sufficient to resolve the question.

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.

How the four-part employee-evaluation test works

Section 25-19-105(c)(1) creates a default rule that employee evaluation and job performance records are exempt unless all four of these conditions are met:

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

If any element fails, the record is exempt. This is the inverse of the Young v. Rice personnel-records test (which has a default toward disclosure). Investigation records about alleged employee misconduct typically fail at least the suspension-or-termination prong (because the investigation may not lead to discipline, or because it is still ongoing) and often fail the basis prong (because not every investigation document forms the basis of any final decision).

For this document, the AG's analysis stopped at the threshold determination that the record qualified as an employee-evaluation record under Thomas v. Hall. Once that classification held, the four-part disclosure test could not be met because the question framed by the Speaker did not involve a completed suspension or termination proceeding with a final administrative resolution. Exemption followed.

Why the AG said legislators are "employees" for this purpose

This is a subtle but important point. The employee-evaluation exemption is built around an employer-employee structure, which fits poorly with elected officials who are not employees in the conventional sense. The AG resolved this by pointing to Article 5, § 12 of the Arkansas Constitution, which lets each house of the General Assembly "punish [its] own members for disorderly behavior, and may, with the concurrence of two-thirds, expel a member."

So legislators are subject to internal discipline by their own chambers. Investigation records prepared in support of that discipline are functionally employer-evaluation records. The AG concluded the § 25-19-105(c)(1) framework applies: the chamber is the "employer" for purposes of the disciplinary process, and records of alleged misconduct fit within the evaluation-records definition.

This footnote-level reasoning extends the FOIA's standard employee framework to legislators in a way that seems intuitive but had not been explicitly articulated before. Future AG opinions and litigation in this area would likely cite this reasoning.

Common questions

Did this opinion shield all sexual harassment records about legislators from FOIA?
Not blanket, but it provides strong support for non-disclosure of investigation documents. Disclosure could still happen if a particular legislator is "suspended" (presumably by chamber discipline) or expelled, with a final resolution, where the records formed the basis of that decision, and the public has a compelling interest. The threshold for compelling public interest in legislator misconduct cases would typically be high, especially for elected officials whose conduct in office is matters of public concern.

What about settlement payments to victims?
The opinion does not address that. Settlement records are typically a different category. Information about public funds spent in connection with a settlement may be subject to a different analysis, particularly if the funds came from public sources.

Did the AG endorse confidentiality of all internal legislative investigations?
No. The AG addressed one specific document and found it fit the employee-evaluation exemption. Each request must be analyzed on its own facts. Some investigation records might fall outside the exemption (e.g., final resolution documents, public statements made during the process).

Is the working-papers exemption under § 25-19-105(b)(7) broader or narrower?
Different scope. Section 25-19-105(b)(7) covers "unpublished memoranda, working papers, and correspondence" of legislators and other officials. It is more about the legislator's own work product than about investigations into their conduct. The AG declined to reach this exemption, but its scope is generally understood to protect legislators' personal notes, drafts, and informal correspondence, not investigation files about them.

What is the practical takeaway for future FOIA requesters?
A blanket request for "all sexual misconduct investigation records about legislators" will likely be denied under § 25-19-105(c)(1). More targeted requests (specific final decisions, chamber-level disciplinary actions, settlement payments, recipient identification in public-fund disbursements) might fare better. The AG's analysis here is at the wholesale level.

Background and statutory framework

Section 25-19-105(c)(1) is one of the FOIA's narrower exemptions in some senses (limited to records pertaining to specific employees) but broader in others (default toward exemption, requiring all four conditions for release). Thomas v. Hall is the foundational Arkansas Supreme Court case defining "employee evaluation or job performance records."

Section 25-19-105(b)(7) protects "unpublished memoranda, working papers, and correspondence" of certain government officials. It is a separate exemption with its own scope.

Article 5, § 12 of the Arkansas Constitution gives each chamber of the General Assembly self-discipline authority. This is the structural basis for treating legislators as "employees" of their respective chambers for FOIA classification purposes.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(7) (legislative working papers exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism)
• Ark. Const. art. 5, § 12 (chamber discipline of members)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel records balancing test)
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed. 2017)

Source

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

Original opinion text

Opinion No. 2017-133
December 15, 2017
The Honorable Jeremy Gillam
Speaker of the House
State Capitol
STATE OF ARKANSAS
ATTORN EY GENERAL
LES LI E RUTLEDGE
500 Woodlane Street, Suite 350
Little Rock, AR 72201-1089
Dear Mr. Speaker:
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. 2017). 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 "any documents,
records, or correspondence related to complaints of sexual misconduct or
harassment made against legislators since the year 2008." You have attached one
redacted document that you say is within the scope of the request. You state that
you believe the document is exempt from disclosure under Ark. Code Ann. § 25-
19-105(b )(7), which applies to "unpublished memoranda, working papers, and
correspondence of ... members of the General Assembly[.]" You further state that
you have determined that the document "is an employee evaluation record that is
exempt from disclosure [under Ark. Code Ann. § 25-19-105(c)(l)], or that it is a
personnel record that, if released, would constitute a clearly unwarranted invasion
of privacy [under Ark. Code Ann. § 25-19-105(b)(12)]." You ask whether your
decisions are consistent with the FOIA.
323 CENTER STREET. SU IT E 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV The Honorable Jeremy Gillam
Speaker of the House
Opinion No. 2017-133
Page 2
RESPONSE
In my opinion, you have correctly determined that the document at issue is exempt
from disclosure under Ark. Code Ann. § 25-19-105( c )(1 ), which applies to
"employee evaluation or job performance records."1
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 Arkansas House of Representatives, 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
You have stated that the document at issue "was created in connection with the
investigation of alleged harassment.. .. " Accordingly, it plainly reflects the
1 This conclusion is with the understanding that section 25-19-105( c )( 1 ), pertaining to "employee
evaluation or job performance records," applies to members of Arkansas General Assembly who,
pursuant to the Arkansas Constitution, are subject to punishment by the House and Senate. Ark.
Const. art. 5, § 12. Because the record at issue is exempt from disclosure as an employee-
evaluation record-which is analyzed under a separate part of the FOIA that specifically
addresses that type of record-there is no need to address the working papers exemption found in
section 25-19-105(b )(7).
2 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2017). The Honorable Jeremy Gillam
Speaker of the House
Opinion No. 2017-133
Page 3
performance or lack of performance of official functions. Therefore, in my
opinion, it is a public record that must be disclosed unless some specific exception
provides otherwise.
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.
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
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) (Supp. 2017): "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) (Supp. 2017): "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 ifthere is a compelling public interest in their disclosure."
6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. The Honorable Jeremy Gillam
Speaker of the House
Opinion No. 2017-133
Page 4
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
Employee-evaluation exception.
The FOIA likewise does not define "employee evaluation or job performance
records." However, 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 emplolee (3) that detail the employee's performance or lack of
performance on the job.1 This exception includes records generated for purposes
of investigating allegations of employee misconduct that detail incidents that gave
rise to an allegation of misconduct. 11
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);
   7 Ark. Code Ann.§ 25-19-105(b)(l2).
   8 308 Ark. 593, 826 S.W.2d 252 (1992).
   9 Watkins, et al., at 208.
   10 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.
   11 Op. Att'y Gen 2017-100. See also Watkins, et al., at 227-28 (and accompanying footnotes). The Honorable Jeremy Gillam
   Speaker of the House
   Opinion No. 2017-133
   Page 5
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).12
   II. Application.
   It appears from the background information you have provided that the document
   in question was solicited by the employer for purposes of investigating alleged
   misconduct in the workplace. It therefore qualifies as an employee-evaluation
   record under the above definition. As an employee-evaluation record, it cannot be
   released unless all the elements listed above are met. You have stated that there
   were no suspensions or terminations in connection with the investigation. Thus,
   the level-of-discipline element has not been met. The document consequently is
   exempt from disclosure under section 25-19-105( c )( 1 ).
   Sincerely,
   :==·;::>_ £.. //?>1k
   ~------ ··7
   LESLIE RUTLEDGE
   Attorney General
   12 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.