Can a state agency release a former employee's evaluation record when the employee resigned 'in lieu of termination'?

Plain-English summary

Michael Morgan, a former Arkansas Department of Correction (ADC) employee, objected to the release of one specific document from his personnel file: a written statement he created on October 31, 2006, apparently at his employer's request. The custodian had decided to release the document. Morgan invoked his right under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to seek an AG opinion on whether the release was consistent with the FOIA.

The AG could not give a definitive answer, because the custodian had not explained the basis for the release decision, and the central question (whether Morgan's resignation was voluntary or amounted to a forced/constructive termination) was a question of fact beyond the scope of an AG opinion.

The AG laid out the analytical framework: the document appeared to be an employee-evaluation record under Thomas v. Hall (created by or at the employer's behest, evaluating performance, detailing performance or lack of performance). If so, all four requirements for release applied, and the suspension-or-termination requirement became the pivotal issue. ADC's records said Morgan resigned "in lieu of termination." The AG noted that this office has long held a "voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination," but a resignation tendered in the face of a "more certain, impending termination" can be deemed a constructive termination. That distinction had to be made by the custodian on the facts.

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.

Why "in lieu of termination" is not conclusive

The opinion's most useful contribution is its careful treatment of the voluntary-vs-forced resignation distinction. The AG identified two competing strands of prior AG opinions:

Strand 1 (default rule): "[A] voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination" (Op. Att'y Gen. 2011-078). Under this rule, an evaluation record cannot be released because the threshold suspension/termination prong fails.

Strand 2 (constructive-termination exception): A resignation can amount to a forced, coerced, or constructive termination if it was tendered "in the face of a more certain, impending termination" (Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044, 2007-322; Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act at 231). If the resignation amounts to a constructive termination, the custodian must still apply the other requirements for release.

The AG noted that as of 2018, Arkansas's appellate courts had not yet addressed this distinction with respect to the FOIA. The AG left the classification and resignation questions to the custodian, who had to consider the surrounding facts and circumstances.

Common questions

I'm a state employee being asked to resign 'in lieu of termination.' What does that mean for my records? Under the law as it stood in 2018, the answer depended on whether your resignation was truly voluntary or was a forced/constructive termination. A purely voluntary resignation generally protects evaluation records from release. A constructive termination may satisfy the first release requirement; the other requirements still matter. The custodian must decide the facts surrounding the departure.

As a custodian, how do I tell the difference?
The opinion gives no checklist. It directs the custodian to classify the record and decide whether the resignation was voluntary or amounted to constructive termination from the surrounding facts.

What if I'm the requester and the agency says the records are exempt? The opinion says a requester may seek an AG opinion under § 25-19-105(c)(3)(B)(i). The custodian must classify the record and apply the disclosure test.

Why did the AG not just say 'release it' or 'don't release it'? Because the custodian had not explained the basis for the release decision, and because the voluntary-vs-forced question is a question of fact. The AG said the relevant fact finding was beyond the scope of this opinion.

What is an "employee evaluation record" exactly?
Thomas v. Hall, 2012 Ark. 66: any record (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that details the employee's performance or lack of performance on the job. Includes records generated while investigating possible misconduct.

Background and statutory framework

The Arkansas FOIA splits employment-related records into "personnel records" (open unless clearly unwarranted privacy invasion) and "employee evaluation or job performance records" (closed unless all four prongs of § 25-19-105(c)(1) are met). The four prongs are:

1. The employee was suspended or terminated.
2. There has been a final administrative resolution.
3. The records formed a basis for the discipline.
4. There is a compelling public interest in disclosure.

The threshold prong is the gatekeeper here. If the employee resigned voluntarily, an evaluation record cannot be released even if everything else points to disclosure. A forced or constructive termination can satisfy the first requirement, but the other requirements must still be assessed.

The opinion also lists redactions that personnel records typically require even when releasable: home address, employee personnel number, marital status and dependents, date of birth, SSN, medical info, identifying info for undercover law enforcement, driver's license number, insurance coverage, tax info, payroll deductions, and banking information.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion authority)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ops. Att'y Gen. 2011-078, 2008-044, 2014-103, 2013-016, 2007-322 (constructive-termination doctrine)

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTO RN EY G EN ERAL
LE SLIE RUTLED GE

Opinion No. 2018-024

March 6, 2018

Michael Morgan
c/o Lucy Cockrell, Asst. HR Administrator
Arkansas Department of Correction
2403 East Harding A venue
Pine Bluff, AR 71601

Dear Mr. Morgan:

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 Arkansas Department of Correction (ADC) has received a FOIA request for a copy of your personnel file, "including but not limited to F-1 forms, F-4 forms, training history, etc." You have attached several documents that the custodian of records has determined to be responsive to the request and must be released. You object to the release of one record only-your written statement dated October 31 , 2006 (the "Record"). Accordingly, I will limit my discussion to this Record.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I lack sufficient information to definitively determine whether the custodian's decision to release the Record is consistent with the FOIA. The Record appears to be an employee-evaluation record, based upon the face of the Record and the very sparse information before me. If that classification is correct, then the custodian's decision to release the Record would be contrary to the FOIA

323 CENTrn STREET. SU ITE 200 · LI THE ROC K, ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 ·FAX (50 1) 682-8084 ARKAN SAS AG.GOV

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 2

if you voluntarily resigned. But I do not know on what basis the custodian classified the Record, and it seems from the face of the records available to me that there may be a fact question whether your resignation was voluntary. I cannot resolve these factual questions in an attorney general's opinion. I will, however, lay out the general standards regarding employee-related records and the appropriate tests governing their 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 Record is held by the ADC, 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

Based on the information you have provided, you created the Record at the request of your employer, ADC, which kept it with your employee records. Accordingly, in my opinion, the Record reflects the performance or lack of performance of an official function during your employment with ADC. Therefore, in my opinion, the Record is a public record and must be disclosed unless some specific exception provides otherwise.

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

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 2 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 3 or "employee evaluation or job performance records." 4 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 in the first instance 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 that "personnel records" are all records other than emploree evaluation and job performance records that pertain to individual employees. Whether a particular

2
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). 3 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." 4 Ark. Code Ann. § 25-19-105(c)(l): "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." 5 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
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. " 6

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,7 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. 8

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. 9 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. 10 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. 11 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. 12

6
Ark. Code Ann.§ 25-19-105(b)(12).
7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins, et al., at 208.
9
Young, 308 Ark. at 598, 826 S.W.2d at 255.
10
Id., 826 S.W.2d at 255.
11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 5

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 13

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, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194 ).
  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

13
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 6

the job. 14 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 15

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). 16

As for the final prong, 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

14
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. 15 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
16
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 7

trust should be sufficient to satisfy the "compelling public interest" • 17 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, 18 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. 19

III. Application.

As discussed above, when custodians receive FOIA requests for employment- related records, they must make two determinations: 1) whether the record being requested meets the definition of a personnel record or an employee-evaluation record, and 2) whether the record should be disclosed after applying the appropriate test. The proper classification of an employee-related record is a determination the custodian must make in the first instance, taking into account all of the relevant facts and circumstances.

While I understand that the custodian believes the Record should be disclosed, as redacted, I have not been apprised of the custodian's decision regarding the Record's classification. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. Unfortunately in this case, ADC simply informed you of its decision to release the Record, without providing any explanation regarding the basis for that decision.
This is insufficient information-for both the employee and for this office in issuing opinions. As I cannot act as a fact-finder in the issuance of opinions, I cannot definitively opine

17
Watkins, et al., at 238-39 (footnotes omitted).
18
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."). 19 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 8

on whether the custodian's decision with respect to the Record is consistent with the FOIA.

Based on the face of the Record, and your comment in your request for my opinion that your employer requested that you create the Record, it seems likely that the Record is an employee-evaluation record. If so, then it cannot be released unless all four prongs of the test for the disclosure of evaluation records listed above are met. 2 With that in mind, a question appears to exist whether the first prong, the "level of discipline," has been satisfied in this case.

As explained above, a suspension or termination is a key element that must be present for the release of employee-evaluation or job-performance records under section 25-19-105(c)(1). One of the records before me (the release of which is not at issue here) states that you resigned without notice "in lieu of termination." In your request for my opinion, you repeat that language verbatim. An employee's resignation ordinarily will not meet the "level of discipline" prong of the test for disclosure of an employee-evaluation record. 21 This office has on numerous occasions stated that "a voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination." 22 On the other hand, this office has opined that, under certain circumstances, a resignation tendered in the face of a more certain, impending termination could be deemed to be a forced, coerced, or constructive termination for the purposes of the FOIA. 23

I cannot answer the question of whether your resignation was forced or voluntary with the little information before me. You state in your request for my opinion that you resigned "in lieu of termination." But even this language, without more, is not conclusive of a forced or constructive termination. Meanwhile, other information in the records provided to me suggests that your resignation may well have been voluntary. If that is the case, then the Record cannot be released because there was no suspension or termination, and thus the test for disclosure of

20
Supra text accompanying note 16.
21
See Op. Att'y Gen. 2011-078.
22
Id. See also Op. Att'y Gen. 2008-044 (and opinions cited therein).
23
Id. Accord Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044, 2007-322; Watkins, et al., at 231. To date, neither of Arkansas's appellate courts has addressed this issue with respect to the FOIA.

Michael Morgan
c/o Lucy Cockrell, ADC
Opinion No. 2018-024
Page 9

employee-evaluation records has not been met. However, resolving this question requires fact finding that I cannot undertake in an attorney general's opinion.

In conclusion, I lack sufficient information to determine whether the custodian's decision to release the Record is consistent with the FOIA. The Record appears to be an employee-evaluation record, based upon the face of the Record and the very sparse information before me. If that classification is correct, then the Record should not be disclosed if you were not in fact suspended or terminated. The circumstances surrounding both the creation of the Record and your subsequent resignation are issues of fact that are beyond the scope of an attorney general's opinion. The custodian must properly classify the Record and then apply the appropriate test for its disclosure, taking into account all of the relevant surrounding facts and circumstances.

Sincerely,
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LESLIE RUTLEDGE
Attorney General