Is Bret Bielema's personal services contract with the Razorback Foundation a public record subject to release under the Arkansas FOIA?

Plain-English summary

Neil Cornrich, Bret Bielema's agent, asked the AG to review the University of Arkansas's decision to release a "Personal Services and Guaranty Agreement" between Bielema (the recently departed Razorbacks football coach) and the Razorback Foundation. The Arkansas Democrat-Gazette had filed a FOIA request seeking the contract along with any other agreements between Bielema and the Foundation referenced in his university employment contract. The University concluded that the agreement was a personnel record and made the preliminary decision to release it. The agent asked the AG, on Bielema's behalf, to confirm whether the classification and release decision were consistent with the FOIA.

The AG agreed with the University's classification but suggested two redactions. Personal services contracts of public employees, including those covering compensation paid in addition to a regular paycheck, fit within the long-recognized scope of "personnel records" under § 25-19-105(b)(12). Once a record is properly classified as a personnel record, it is open for inspection unless disclosure would be a "clearly unwarranted invasion of personal privacy." That standard turns on the Young v. Rice two-step balancing test, with a thumb on the scale toward disclosure.

Applying that test, the AG found that the public interest in the contract was substantial. The subject had been "intensely scrutinized by the media." There was "a very high level of public interest in documents bearing on the former employee's departure," reflecting the coach's prominence and importance to the local community. That heavy public interest outweighed Bielema's privacy interest in the contract itself. As to the two signatures, the AG drew the opposite conclusion: minimal public interest in the signature images, strong privacy interest in those images. The Young v. Rice test required redacting them.

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 FOIA's three-element disclosure test ran

The AG worked the standard three-element FOIA disclosure framework:

Element 1, request directed to a covered entity. The University of Arkansas is a public entity. Met.

Element 2, public record. The FOIA defines public records broadly at § 25-19-103(7)(A): writings or data compilations "required by law to be kept or otherwise kept" that constitute a record of the performance of official functions of a public employee. Records maintained in public offices or by public employees within the scope of their employment are presumed public. The University was holding the personal services agreement. The AG treated it as a public record subject to disclosure unless a specific exemption applied.

Element 3, no exemption. The AG considered the personnel-records exemption at § 25-19-105(b)(12) but concluded that the public-interest weight under Young v. Rice required disclosure (with redactions).

How the personnel-records vs. employee-evaluation distinction worked

The FOIA exempts two mutually exclusive categories of employee-related records: "personnel records" under § 25-19-105(b)(12), and "employee evaluation or job performance records" under § 25-19-105(c)(1). Each has its own test for whether disclosure is required. The AG identified the personnel-records exemption as the relevant one and skipped the evaluation-records analysis.

Under longstanding AG practice (Op. Att'y Gen. 2015-072, 99-147), "personnel records" are all records, other than employee-evaluation records, that pertain to individual employees. The AG had specifically previously opined that documents related to compensation a former employee receives in addition to their regular paycheck, and contracts or agreements related to an employee's separation from employment, fall within the personnel-records definition (Op. Att'y Gen. 2013-074, 2008-135). The Bielema personal services agreement fit squarely within both descriptions: it was a contract for compensation outside the regular university paycheck and was tied to the coach's separation arrangements.

How Young v. Rice's two-step balancing test applied

Once a record is a personnel record, the question is whether disclosure would be a "clearly unwarranted invasion of personal privacy." That phrase is undefined by the FOIA but operationalized by Young v. Rice through a two-step balancing test:

Step 1, de minimis privacy interest screen. Is the information in the document "of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest"? If the privacy interest is merely de minimis, the thumb on the scale toward disclosure outweighs it and the record is released without further analysis.

Step 2, balance against public interest. If a more-than-de-minimis privacy interest exists, the custodian weighs it against the public interest in disclosure. The exemption is narrowly construed, with the burden on the person resisting disclosure (Stilley v. McBride). The subject's own preference for privacy is irrelevant; the test is objective.

For the contract as a whole, the AG found the public interest substantial: the subject matter was "intensely scrutinized by the media" and there was "a very high level of public interest" in the coach's departure circumstances. Applying Young v. Rice's own dicta that "warranted invasions of privacy" are tolerated and that substantial public interest "will usually outweigh any individual privacy interests," disclosure was required.

For the signatures specifically, the AG flipped the balance: minimal public interest in the signature images, strong privacy interest in those images (signature forgery and identity-theft concerns being the implicit drivers). Redaction was therefore required even though the contract's substantive content had to be released.

Common questions

Why does this matter for Razorback fans and reporters? Because the AG concluded that the contract had to be released, the Democrat-Gazette and the public were able to see what compensation the Razorback Foundation paid Bielema beyond his university paycheck. That was the question the media and fans had been asking after his departure as head coach. The AG's role under § 25-19-105(c)(3)(B)(i) is non-binding; the actual disclosure remained the University's decision, but the AG's opinion gave it strong legal cover.

Is the Razorback Foundation itself subject to FOIA? The opinion does not directly resolve that. The contract was being held by the University of Arkansas (a public entity), so the FOIA analysis ran through the University's records. The Foundation's own records would require a separate FOIA-applicability analysis turning on whether the Foundation is sufficiently entwined with the University to be a public body or a body "supported by public funds."

Could Bielema have insisted on confidentiality contract terms? A contract clause cannot override the Arkansas FOIA. Public records remain public records regardless of private contractual confidentiality language.

Does the personal services agreement disclose financial terms? Yes, presumably. That was the entire point of the Democrat-Gazette's request. Personal services and guaranty agreements typically detail compensation amounts, payment schedules, and post-employment guarantees. None of that is exempt as personnel-record content under Young v. Rice when the public-interest weight is substantial.

Why were the signatures the only redaction?
The AG balanced public interest against privacy on a piece-by-piece basis. The signature images carry independent privacy concerns (forgery, identity verification on other documents) that the contract's textual content does not. The AG has long taken the position that signatures themselves can be redacted from otherwise-disclosable personnel records when the public interest in the signature image is minimal.

Background and statutory framework

The AG opinion-on-personnel-record process at § 25-19-105(c)(3)(B)(i) is unusual in U.S. open-records law. It lets the custodian, requester, or subject of personnel or employee-evaluation records seek a non-binding AG opinion on whether the custodian's release decision is consistent with the FOIA. The AG's review functions as a sanity check before disclosure. The custodian retains decision authority; the AG's opinion is persuasive but not binding.

Bielema served as Razorbacks head football coach from December 2012 through November 2017. The University-Foundation arrangement, with parts of head coaches' compensation routed through the Foundation as a 501(c)(3) booster organization, was common across major college football programs but had drawn attention because of how it intersected with public-records and tax-exempt-organization rules.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• 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)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)
• 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. 2017-136
December 28, 2017
Neil M. Cornrich
NC Sports
One Chagrin Highlands
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLI E RUTLEDGE
2000 Auburn Drive, Suite 315
Beachwood, OH 44122
Dear Mr. Cornrich:
I am responding to your request under Arkansas's Freedom of Information Act ("FOIA"), which authorizes the custodian, requester, or subject of personnel or employee-evaluation records to seek an opinion from this office as to whether the custodian's decision to release or withhold such records is consistent with the FOIA. 1 You have made this request on behalf of Bret Bielema, the former head football coach of the Arkansas Razorbacks. You indicate that the Arkansas Democrat-Gazette requested the following documents from the University of Arkansas under the FOIA: The "personal services and guaranty agreement or personal services contract between former Arkansas Razorbacks football coach Bret Bielema and the Razorback Foundation," including "any other agreements between Mr. Bielema and the Razorback Foundation as referenced on page 24 of Mr. Bielema's employment contract with the university." According to your correspondence, the University of Arkansas determined that a document entitled "Personal Services and Guaranty Agreement," between Mr. Bielema and the Razorback Foundation, was responsive to the request from the Democrat-Gazette. You explain that the University has classified the Personal Services and Guaranty Agreement as a "personnel record under the FOIA." And 1 See Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). 323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (50 I) 682-8084 ARKANSASAG.GOV Neil M. Cornrich Opinion No. 2017-136 Page 2 you state that the University made the "preliminary decision to release the document." You now ask, on Mr. Bielema's behalf, whether the University correctly classified the document under the FOIA, and whether any FOIA exemptions would prevent the document's release. RESPONSE My duty under section 25-19-105(c)(3)(B)(i) is to state whether the custodian's decision as to the release of personnel or employee-evaluation records is consistent with the FOIA. Having reviewed the record in question, it is my opinion that ( 1) the document in question is properly classified as a personnel record, and (2) the custodian's decision to release it, after redacting two signatures, is consistent with the FOIA. 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 exemptions allow the document to be withheld. As for the first element, the document at issue is held by the University of Arkansas, which is a public entity. As for the second element, the document presumably meets the following "public records" definition under the FOIA:
[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 2 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). My statutory mandate under section 25-19- 105( c) presupposes that the records I will be reviewing are public records under this definition. See Ops. Att'y Gen. 2013-002, 2012-001, 2008-095. Neil M. Cornrich Opinion No. 2017-136 Page 3 Therefore, the record in question must be disclosed unless some specific exemption provides otherwise. Under certain conditions, the FOIA exempts two mutually exclusive groups of employee-related records: "personnel records"3 and "employee evaluation or job performance records."4 When custodians assess whether either of these exemptions apply to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of a "personnel record" or an "employee evaluation or job performance record." Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that the record be disclosed. The tests for whether these two types of records may be released differ significantly. In my opinion, the personnel-records exemption is the relevant exemption with respect to the particular record at hand. I will therefore limit my discussion to that exemption. 5 II. Personnel records The FOIA does not define the term "personnel records." However, this office has consistently interpreted the term broadly to encompass all records, other than employee evaluation and job performance records, that pertain to individual employees, including former employees.6 A public record must sufficiently relate to an individual employee or former employee to qualify as that employee's personnel record. 7 As this office has previously noted, it seems certain that "personnel records" refers to those records kept in connection with a public 3 Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2017). 4 Id. at§ 25-19-105(c)(l) (Supp. 2017). 5 Regarding "employee evaluation or job performance records," 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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The record in question plainly does not constitute an employee-evaluation record. Consequently, I will not undertake any further discussion of that exception. 6 See, e.g., Ops. Att'y Gen. 2015-072, 2012-149, 99-147. 7 See Op. Att'y Gen. 2012-001. Neil M. Cornrich Opinion No. 2017-136 Page 4 employee's employment.8 And more specifically, it includes documents related to any compensation a former employee receives in addition to their regular paycheck, as well as contracts or agreements related to an employee's separation from employment. 9 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."10 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 11 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. 12 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.13 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. 14 Because the exceptions must be narrowly construed, the 8 Op. Att'y Gen. 93-337. 9 See Ops. Att'y Gen. 2013-074, 2008-135, 97-063, 88-078. 10 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."). 11 308 Ark. 593, 826 S.W.2d 252 (1992). 12 John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 208 (Arkansas Law Press, 61h ed. 2017). 13 Young, 308 Ark. at 598, 826 S.W.2d at 255. 14 Id. Neil M. Cornrich Opinion No. 2017-136 Page 5 person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests.15 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.16 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.17 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. III. Application. In my opinion, the record at issue in this case is sufficiently related to the individual former employee to qualify as a personnel record, as discussed above. Additionally, under the circumstances at hand, the public interest in disclosure appears sufficiently strong to warrant its disclosure under the above standard applicable to personnel records. In this regard, the Arkansas Supreme Court has noted as follows: The fact that section 25-19-lOS(b)(lO) [now subsection 105(b)(12)] exempts disclosure of personnel records only when a clearly unwarranted personal privacy invasion would result, indicates that certain 'warranted' privacy invasions will be tolerated. Thus, section [25-19-105(b)(l2)] requires that the public's right to knowledge of the records be weighed against an individual's right to privacy.... Because section [25-19-105(b)(12)] allows warranted invasions of privacy, it follows that when the public's interest is substantial, it will usually outweigh any individual privacy interests and disclosure will be favored. 18 It seems beyond question that the public's interest in the record at issue is substantial. The subject matter has been intensely scrutinized by the media. And 15 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 16 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. 17 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. 18 Young v. Rice, 308 Ark. at 598, 826 S.W.2d at 255. Neil M. Cornrich Opinion No. 2017-136 Page 6 there is a very high level of public interest in documents bearing on the former employee's departure from the University-a level of interest that is understandable given his prominence and the importance of the matter to the local community. By contrast, however, I believe the public interest in disclosing the signatures from this record is minimal, whereas these individuals have a very strong interest in the nondisclosure of these images to the public. Accordingly, I believe the Young v. Rice balancing test requires that the signatures be redacted. In sum, therefore, it is my opinion that the custodian has ( 1) properly classified the record as a personnel record, and (2) properly decided that the record must be disclosed (as redacted). Sincerely,
-==~- L' /./~k ~--·- //
LESLIE RUTLEDGE
Attorney General