Can a school district employee block release of her personnel file under the Arkansas FOIA because the requester has been harassing her?

Plain-English summary

Terri Whitt objected to the Little Rock School District's plan to release her personnel documents and disciplinary records after redacting personal contact information. She said the requester had made allegations against her, sent harassing emails, and might misuse her records. The Attorney General said those concerns, standing alone, did not supply a basis to reverse the custodian's release decision.

The AG explained that Arkansas's FOIA had no generalized harassment exception for otherwise disclosable personnel records and that custodians generally could not consider a requester's motive. But she had not seen any responsive records. She therefore could not definitively say which documents could be released or exactly what each needed redacted. Her opinion said only that releasing these types of records after contact-information redactions was generally consistent with FOIA.

Currency note

This January 2018 opinion gives general guidance without reviewing the requested records. Check current FOIA law and the documents themselves before deciding a present request.

Background and statutory framework

The AG described two categories of employee-related records. Personnel records are generally disclosable unless release would be a clearly unwarranted invasion of personal privacy. Employee-evaluation or job-performance records have a different disclosure test that depends on a final suspension or termination proceeding, the record's role in the decision and a compelling public interest.

The custodian must classify each responsive record and apply the corresponding test. Even when a record is releasable, exempt personal information may need redaction. The district told the AG it would redact personal contact information, including home addresses, personal telephone numbers and personal email addresses. The AG did not verify those redactions against actual pages.

Common questions

Can an employee stop a FOIA release because the requester sent harassing emails?

The AG said not on that ground alone. The legislature had created no general harassment exception, and a custodian generally could not treat a requester's motive as a reason to withhold otherwise disclosable records.

Did the AG approve release of Whitt's entire file?

No. She had not seen the records and expressly declined to decide the releasability of any specific document or the need for specific redactions.

What should the school district do with disciplinary records?

Classify each document and apply the appropriate FOIA test. The opinion explains the separate standards for personnel records and employee-evaluation records, but does not decide which of Whitt's documents fall into either category.

What did the AG say about contact-information redactions?

She said releasing these types of records after redacting personal contact information was generally consistent with FOIA. She could not assess the actual redactions without seeing the records.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTOR NE Y GENERAL
LES LI E RUT LEDGE

Opinion No. 2018-010

January 31, 2018

Terri Whitt
c/o Rhonda Langrell Benton, SPHR, SHRM-SCP, CLRP
Director, Human Resources Department
Little Rock School District
810 West Markham
Little Rock, AR 72201

Dear Ms. Whitt:

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 the Little Rock School District ("LRSD") has received a FOIA request for your "personnel documents and disciplinary records." The records custodian has determined that "your personnel file should be disclosed" after redacting "all personal contact information, including but not limited to: [S]ocial [S]ecurity number, home addresses, personal telephone numbers and personal email addresses, as required by law." You obj ect to the release of your records to the individual making the request. You state that he has made certain allegations and has sent some harassing emails, and you express concern about what he might do if he obtained your records.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that would be responsive to the instant FOIA request, I cannot opine about the releasabilty of any specific document or

323 CENTER STREET. SU ITE 200 · L ITTLE ROC K. ARKAN SAS 7220 1 TELEPHONE (501) 682-200 7 ·FAX (50 1) 682-8084 ARKAN SAS AG .GO V

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 2

the need to redact any specific piece of information from an otherwise releasable document. I can state generally, however, that the custodian's decision to release these types of records-after redacting personal contact information-is consistent with the FOIA. I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 Little Rock School District, 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. 1

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 2 The custodian has determined that they are public records. Not having seen any of the records in question, I

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

2
See Op. Att'y Gen. 2010-044.

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 3

cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

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 records," which the FOIA does not define. But this office has consistently opined

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."

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 4

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 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

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) (Supp. 2015).
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.
11
Id., 826 S.W.2d at255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
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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);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-3 85);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194).

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.

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 6

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

[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

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.

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 7

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. 18

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.

You have objected to the release of your records to the person who has made the FOIA request. You say that he has made certain allegations and has sent some harassing emails. And you say you are concerned about what he might do if he obtained your records. However, the General Assembly has not established a generalized "harassment exception" to the release of otherwise disclosable personnel records. 21 Additionally, this office has long noted that custodians are generally not permitted to take the requester's motive for requesting the records

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."). 2
°Cf Op. Att'y Gen. 96-168; Watkins, et al, at 223.
21
See Att'y Gen. Op. 2013- 080 (regarding the lack of a generalized harassment exemption).

Terri Whitt
c/o Rhonda Benton, LRSD
Opinion No. 2018-010
Page 8

into account. 22 Accordingly, in my opinion, your stated objections to the release are not, standing alone, a sufficient basis for reversing the custodian's decision.

In conclusion, because I have not reviewed the actual records at issue, I cannot definitively opine on whether the custodian's decision is consistent with the FOIA. But I can state generally that the custodian's decision to release these types of records-after redacting personal contact infonnation-is consistent with the FOIA.

Sincerely,

~!'~
L°E;LIE ~?
RUTLEDG
Attorney General

22
See Att'y Gen. Ops. 2014-094, n.8, and 2013-073 (noting that the requester's motive for making the request is generally iITelevant to whether a non-exempt record should be released pursuant to the FOIA).