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

Plain-English summary

The Arkansas House Speaker asked whether he could withhold one redacted document responsive to a request for records about sexual misconduct or harassment complaints against legislators since 2008. The Attorney General agreed with withholding that document under the FOIA's employee-evaluation provision.

The Speaker said the document had been created in connection with an investigation of alleged harassment. The AG found that it had been solicited by the employer to investigate alleged workplace misconduct, making it an employee-evaluation record. That classification alone did not settle whether the document could be released: the statute permits release only when all four conditions for employee-evaluation records are met. The Speaker said the investigation led to no suspension or termination. Because that first condition failed, the AG concluded the document was exempt.

The AG treated the evaluation provision as applicable to members of the General Assembly in a footnote. She did not decide the Speaker's alternative claims based on legislative working papers or personnel-record privacy.

Currency note

This December 2017 opinion applies the FOIA to one document and the facts supplied by its custodian. Check current FOIA provisions and the facts of another investigation before using its conclusion for a different record.

Background and statutory framework

The AG explained that a record held by the House is presumed public if it reflects official functions. An exemption can nevertheless permit withholding. Personnel records and employee-evaluation records have different disclosure tests, so a custodian must classify the particular document before applying the relevant test.

An employee-evaluation or job-performance record is created by or at the employer's behest to evaluate an employee and details on-the-job performance or its absence. Investigation records describing alleged misconduct can qualify. The AG concluded that the document she reviewed was in this category because of its role in the harassment investigation.

For a record in that category to be released, the opinion lists four conditions: suspension or termination; final administrative resolution of that proceeding; the record forming a basis for that decision; and a compelling public interest in disclosure. The AG did not find all four satisfied. She stopped at the absence of a suspension or termination.

The Speaker had also raised the exemption for legislators' unpublished memoranda, working papers and correspondence under § 25-19-105(b)(7). The AG said there was no need to decide that ground once she found the evaluation record exempt under § 25-19-105(c)(1).

Common questions

Did the AG say every complaint about a legislator is confidential?

No. She reviewed one document that had been solicited for an investigation, and her disclosure conclusion depended on the reported absence of any suspension or termination. Other records require their own classification and facts.

Why did the absence of discipline matter?

The FOIA provision quoted in the opinion allows release of employee-evaluation records only after a final suspension or termination proceeding satisfying the other statutory conditions. The Speaker reported no suspension or termination in this investigation, so the first condition failed.

Did the AG rely on the legislative working-papers exemption?

No. She left that alternative ground unresolved after applying the employee-evaluation provision.

Does the opinion decide whether an investigation file is a personnel record?

It classified the document at issue as an employee-evaluation record. The opinion explains that the personnel-record test is separate, but did not apply it to this document after deciding its classification.

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTO RN EY G ENERAL
LES LI E RUTL EDGE

Opinion No. 2017-133

December 15, 2017

The Honorable Jeremy Gillam
Speaker of the House
State Capitol
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 ST REET . SU IT E 200 · L IT T LE RO C K, ARK AN SA S 7220 1 TE LEPH ONE (50 1) 682-200 7 · FAX (50 1) 682-8084 ARKANSAS AG.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,

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LESLIE RUTLEDGE
Attorney General

12
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.