Can a city withhold all records of an employee's computer-policy violation under the Arkansas FOIA employee-evaluation exemption?

Plain-English summary

Fort Smith City Administrator Carl Geffken received a FOIA request from a local news outlet for records concerning a recent suspension of a City employee. The request asked for "any and all information, data, including videos, and other materials pertaining to" the situation. Geffken classified all responsive records as exempt employee-evaluation records and withheld them, on the theory that the employee was relatively low-ranking, the misconduct did not involve public money or public interaction, and there was no breach of public trust or gross incompetence.

The AG concluded the City's blanket withholding was contrary to the FOIA. Most of the records (handbook excerpts, scheduling emails) were not evaluation records at all and had to be disclosed. The records that were genuine evaluation records cleared the four-prong release test because the underlying infraction was "extremely offensive and potentially unlawful" and the employee was actually a manager responsible for ensuring compliance with the very directive he violated, not a rank-and-file worker. The video also had to be released, with the non-employee's identity protected by McCambridge constitutional-privacy redaction.

Currency note

This opinion was issued in 2018. 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 AG analyzed this in 2018

The blanket "all evaluation records" classification was wrong. The City had grouped everything together as evaluation records and applied the no-compelling-public-interest test. The AG said the custodian had to classify each record individually before applying the relevant disclosure test. An excerpt from the employee handbook on computer policies "plainly does not meet either definition" of personnel record or evaluation record.

Many records were just scheduling emails. January 11, February 3, 14, and 24 emails about setting meetings on a staff issue did not contain employee performance details. They might qualify as personnel records (sufficiently relating to an individual employee), but releasing them did not constitute a clearly unwarranted invasion of privacy under Young v. Rice's balancing test.

Some records were genuine evaluation records, but had to be released anyway. January 12 and 14 emails and an attached "Disciplinary Memorandum" met the Thomas v. Hall definition (created by or at the behest of the employer to evaluate the employee, detailing performance or lack of performance). But the four-prong test for release of evaluation records was satisfied:

1. Suspension or termination occurred. Yes, the employee was suspended.
2. Final administrative resolution. The City did not contest this.
3. Records formed the basis for the decision. Yes.
4. Compelling public interest. Yes. The infraction was "extremely offensive and potentially unlawful," and the employee was actually a manager with responsibility to enforce the directive he violated. The AG explicitly rejected the City's "low-ranking employee" framing.

The video. Not an evaluation record (not created by or at the City's behest), but a personnel record that sufficiently related to the employee and was used in an internal investigation. Under Young v. Rice balancing, the substantial public interest in the employee's behavior outweighed any privacy interest. However, the non-employee in the video had a constitutional privacy interest under McCambridge v. City of Little Rock, and the City needed to shield that person's identity.

The Chain of Custody Statement was ambiguous. Without more information, the AG could not classify it as evaluation or personnel. Either way, the AG's analysis suggested it was likely releasable as a personnel record.

Common questions

What is the four-prong test for releasing employee-evaluation records?
Under Ark. Code Ann. § 25-19-105(c)(1): (1) the employee was suspended or terminated, (2) there has been final administrative resolution, (3) the evaluation records formed the basis for the discipline, and (4) there is a compelling public interest in disclosure.

What makes an interest "compelling"?
The Watkins, Peltz-Steele & Steinbuch FOIA treatise lists three factors: (1) nature of the infraction (especially violations of public trust or gross incompetence), (2) existence of a public controversy related to the agency, and (3) the employee's position within the agency. A general interest in employee performance is not enough. A serious breach of public trust in a controversial agency by a senior employee usually is.

Does "low-ranking" defeat compelling public interest?
Not on its own. The AG specifically pushed back on Fort Smith's framing. Where the employee was actually a manager responsible for enforcing the violated directive, that elevated rank.

What about personnel records (not evaluation records)?
Different test. Personnel records are open unless disclosure would constitute a "clearly unwarranted invasion of personal privacy." Under Young v. Rice, this is a balancing test with the thumb on the scale toward disclosure. The privacy interest must be greater than de minimis to even make it onto the scale.

What about non-employees who appear in the records?
A bystander's constitutional privacy right can supersede FOIA disclosure for that person's identifying information, per McCambridge v. City of Little Rock. The record itself still gets released; the non-employee's identity gets redacted.

Background and statutory framework

Arkansas's FOIA, Ark. Code Ann. § 25-19-101 et seq., creates broad public access to government records, with narrow exemptions. For employment-related records, the FOIA splits the universe into "personnel records" (open unless clearly unwarranted invasion of privacy) and "employee evaluation or job performance records" (closed unless all four prongs of § 25-19-105(c)(1) are met).

The "personnel records" category is broad: this AG office has long defined it to include anything other than evaluation or job-performance records that pertains to individual employees. The "evaluation records" category is narrow: per Thomas v. Hall, it requires creation by the employer to evaluate the employee, detailing performance or lack of performance.

The AG's role here is advisory under § 25-19-105(c)(3)(B)(i): the custodian, requester, or subject of the records can ask the AG whether the custodian's release decision is consistent with the FOIA. The AG does not make fact findings; classification is the custodian's job in the first instance.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on subject)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (constitutional privacy)

Source

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

Original opinion text

Opinion No. 2018-023
March 5, 2018
Carl E. Geffken, City Administrator
623 Garrison Avenue, Room 30
P.O. Box 1908
Fort Smith, AR 72902

Dear Mr. Geffken:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, made as the records' custodian, 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.

You report that you have received a FOIA request for records pertaining to the recent suspension of a City employee. Specifically, a representative of the local news media has requested "any and all information, data, including videos, and other materials pertaining to [the] situation." You state that you have "determined that the requested records consist of employee evaluation and job performance records that are exempt from release under the FOIA." You further state the following regarding your decision:

The City employee in question was suspended for his conduct; however, I have determined that the implicated records are exempt from disclosure because no compelling public interest would be served by their release. The disciplined employee is a relatively low ranking employee within the City's employee hierarchy, his infraction did not involve a misuse of public money, nor did it involve any interaction with the public. Furthermore, the employee's misconduct did not involve a breach of the public trust or gross incompetence.

You have provided the records, and you have asked for my opinion on whether your determination that the records are exempt from disclosure is consistent with the FOIA.

RESPONSE

My statutory duty 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 records, it is my opinion that your decision is contrary to the FOIA. In my opinion, with a few possible exceptions, these records are subject to disclosure as either personnel or evaluation records (although one personnel record requires redaction), or as simply non-exempt public records.

It appears that you have lumped all the records together as employee-evaluation records and declined to release based on that exemption. Clearly, however, many of the records are not evaluation records. I will review the definitions and point to a few of the records to illustrate the error. But I will not undertake to reclassify each record. It is the custodian's duty in the first instance to classify each employee-related record based on these definitions, and then apply the relevant test for disclosure.

It is sufficient here to state that in my opinion, the test for the disclosure of the records that constitute personnel records and employee-evaluation records requires that these records be disclosed, with one noted redaction to a personnel record. Specifically, regarding the evaluation records, I believe it is beyond question that the public's interest in disclosure is compelling, when considering the nature of the infraction, which is extremely offensive and potentially unlawful, together with the employee's position as a manager with responsibility to ensure compliance with the directives he violated.

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 seem to be satisfied. The request was made to the City of Fort Smith, which is a public entity subject to the FOIA. As for the second element, the FOIA defines public records as "writings, 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 . . . carried out by a public official or employee . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. Here, you appear to have classified as public records all of the documents forwarded for review. I will therefore proceed as though the documents are public records that must be disclosed, unless an exemption provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two types of records normally found in employees' personnel files: "personnel records" and "employee evaluation or job performance records." 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 properly classify the record, that is, 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 FOIA does not define "personnel records." But 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. A public record must sufficiently relate to an individual employee or former employee to qualify as that employee's personnel record. As this office has previously noted, it seems certain that "personnel records" refers to those records kept in connection with a public employee's employment. Documents properly classified as personnel records are open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

The FOIA also does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court has established a balancing test to determine whether release of a personnel record would violate this standard. In Young v. Rice, the Court weighed the public's interest in accessing the records against the subject of the record's interest in keeping them private. The test takes place with the scale tipped in favor of disclosure.

The balancing test has two steps. First, the custodian must assess whether the information contained in the personnel records is 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, then the thumb on the scale favoring disclosure outweighs the privacy interest and the record must be disclosed.

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. Exceptions under the FOIA must be narrowly construed, so the subject resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. However, because the balancing test is objective, whether the subject of the records considers their release an unwarranted invasion of personal privacy is irrelevant to the analysis.

b. Employee-evaluation exception.

The FOIA likewise does not define "employee evaluation or job performance records." 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. Employee-evaluation records include records generated while investigating possible employee misconduct and that detail incidents that gave rise to an allegation of misconduct.

A document properly classified as an employee-evaluation record 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).

As for the fourth condition, 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:

[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" requirement.

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. It also bears noting that numerous previous opinions of this office have stated that the violation of policies and rules designed to avoid any undermining of the public trust itself gives rise to a compelling public interest in the disclosure of employee-evaluation records.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process to promote honest exchanges in the employee/employer relationship. As with personnel records, whether a record qualified as an employee-evaluation record, and whether it is exempt from disclosure, are questions of fact that must first be answered by the custodian after considering the relevant information.

III. Application.

Having reviewed the records, I must first note that the majority are not properly classified as employee-evaluation records. Indeed, some of the records are neither personnel nor evaluation records. For example, the excerpt from an employee handbook regarding computer-related policies and directives plainly does not meet either definition discussed above. Before further addressing this point, however, I must emphasize that regardless of their proper classification, it is my opinion that the records are subject to disclosure because the respective tests for withholding them are not met.

Many of the records are email communications that address scheduling matters and contain no details regarding any employee's job performance. For example, several emails dated January 11, and February 3, 14, and 24, simply address setting a meeting on a staff issue. The subject line of most of these emails appears to suggest the possibility of some employee-disciplinary action, but that is not alone sufficient for them to qualify as employee-evaluation records. Additionally, documents that were not initially employee-evaluation records do not later become such merely because they are later made part of an internal investigation.

When viewed together, and in the light of the surrounding circumstances, these emails might sufficiently pertain to an individual employee, such that they constitute personnel records. But importantly, I can see nothing from the face of these records that would rise to the level of a clearly unwarranted invasion of personal privacy under the judicial test described above.

Several January 12 and 14 emails, by comparison, clearly detail an employee's job performance and appear to have been created by or at the behest of the employer for evaluation purposes. These emails, and an attached "Disciplinary Memorandum," are properly classified as employee-evaluation records. But it is my opinion, based on the above guidelines and previous opinions of this office, that the records qualifying as employee-evaluations are not exempt from disclosure. I believe it is beyond question that the public's interest in disclosure is compelling, when considering the nature of the infraction, which is extremely offensive and potentially unlawful, together with the employee's position as a manager with responsibility to ensure compliance with the directives he violated.

Finally, regarding a video that was included among the records provided with your request for my opinion, this plainly is not an employee-evaluation record because it was not created by or at the behest of the employer. Rather, it is a personnel record because it sufficiently relates to an employee and was used in an internal investigation of that employee. And in my opinion, its release would not constitute a clearly unwarranted invasion of the employee's personal privacy under the balancing test described above. In my view, a substantial public interest attends the employee's behavior and the subject matter of the video. And I believe that interest is sufficient to outweigh any privacy interest of the employee under these circumstances.

While it is therefore my opinion that the video is subject to disclosure, I believe it is necessary to shield the non-employee's identity based on that individual's constitutional privacy interest. The Court has recognized that the constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to the release of documents containing constitutionally protectable information.

CONCLUSION

In sum, it is my opinion that your decision is contrary to the FOIA. I lack sufficient information to determine the proper classification of one record. And one personnel record requires redaction. But in my opinion, the remainder is subject to disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General