Did Arkansas FOIA allow release of Brandon Smith's employee evaluation record after the records custodian decided to disclose it?

Plain-English summary

The Arkansas Department of Community Correction (ACC) received a FOIA request concerning employees arrested, disciplined, or terminated for DWI/DUI offenses. Its records custodian found a responsive record in former employee Brandon Smith's personnel file, classified it as an employee evaluation record, and decided it could be disclosed. Smith asked Attorney General Leslie Rutledge to review that decision.

The AG's conclusion was limited: based on the face of the record, she could not say the custodian's decision was inconsistent with FOIA. She explained the four conditions that govern disclosure of employee evaluation records and noted that the custodian had determined each was present. She left the record's classification and the factual application of the conditions to the custodian. The opinion did not say that Smith's termination was for DUI, make an independent finding of compelling public interest, or assess any other record sought in the request.

Currency note

This opinion was issued in 2018. Verify the current FOIA statute and any later interpretations before applying its disclosure test to a current request.

Common questions

What must be true before an Arkansas employee evaluation record can be released? The employee must have been suspended or terminated; that proceeding must have reached final administrative resolution; the record must have formed a basis for the decision; and disclosure must serve a compelling public interest. The opinion says all four conditions must be met.

Did the AG herself decide that each condition was met here? No. The custodian determined that all four conditions were met. The AG said that, from the face of the record, she could not call the custodian's disclosure decision inconsistent with FOIA. She emphasized that factual questions must first be answered by the custodian.

Did the AG find a compelling public interest because of a DUI offense? No. DWI/DUI appeared in the wording of the records request. The opinion described general factors that may bear on compelling public interest, then reported the custodian's conclusion for this record without tying that conclusion to a DUI offense.

Would resignation alone satisfy the discipline condition? The opinion lists suspension or termination as the required level of discipline. It does not analyze a resignation or say that all former employees' records satisfy that condition.

How is an evaluation record identified?
The opinion quotes the Arkansas Supreme Court's description: a record created by or at the employer's behest to evaluate an employee and detailing that employee's job performance or lack of performance. The custodian must first classify the particular record before applying the disclosure test.

Background and statutory framework

The AG described a general FOIA inquiry: a request to an entity subject to FOIA, a public record, and no applicable exception permitting it to be withheld. ACC was subject to FOIA, and the AG found the submitted document was a public record on its face. The opinion then addressed the employee evaluation exception because that was the custodian's classification. It distinguished that category from personnel records, which have a different disclosure test.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Ark. Code Ann. § 25-19-103(7)(A) (public records definition)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation record definition)

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTO RN EY GEN ERAL
LES LIE RUTLED GE

Opinion No. 2018-034

April 2, 2018

Brandon Smith
c/o Amber Schubert, General Counsel
Arkansas Department of Community Correction
Two Union National Plaza Building
105 West Capitol, 3rd Floor
Little Rock, AR 72201-5731

Dear Mr. Smith:

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 your former employer, the Arkansas Department of Community Correction (ACC), has received a request for "[a]ny and all communications (phone calls, messages, text messages, emails, court judgments, corrective actions, disciplinary actions, terminations paperwork, etc.) concerning Department of Community Correction/Arkansas Community Correction employees arrested for, disciplined for, and/or terminated for DWI/DUI offenses." The ACC records custodian has determined that a record in your personnel file is responsive to the request, that the record is an employee- evaluation record, and that it is disclosable under FOIA because it led to your termination. You have provided the record in question, and you ask for my opinion on whether the custodian's determination that the record is subject to release is consistent with the FOIA.

323 CENTER ST REET. SU ITE 200 · LI TT LE RO C K, A RKAN SAS 7220 1 TE LEPHONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKAN SASAG.GOV
Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 2

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. The custodian has classified this record as an employee-evaluation record, and has determined that all of the factors necessary for its disclosure are present. Based on the face of the record before me, I cannot say that the custodian's decision is inconsistent 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 exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to ACC, which is a state agency and thus subject to the FOIA in this instance. 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 .... " 1 From the face of the record, there can be no question in this instance that the document is a public record.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two types of records normally found in employees' personnel files: 2 "personnel records" and "employee evaluation or

1
Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2017).
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- Brandon Smith c/o Amber Schubert Opinion No. 2018-034 Page 3

4 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.

The information you forwarded to me indicates that the custodian has determined that the record at issue is an employee-evaluation record. I will therefore limit my discussion to the test for disclosure relating to those types of records.

The FOIA 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. 5 Employee-evaluation records include records generated while investigating possible employee misconduct and that detail incidents that gave rise to an allegation of misconduct. 6

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)(l2) 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 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. 6 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 4

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 record 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 record in question (i.e., compelling interest). 7

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. 8

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a

7
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
8
Watkins, et al., at 238-39 (footnotes omitted).
Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 5

"compelling public interest" exists. 9 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. 10

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. 11 Whether a record qualifies 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.

As noted above, and based on the information before me, the custodian appears to have classified the record at issue as an employee-evaluation record. From the face of the record, I cannot say that the custodian's decision in that regard is inconsistent with the FOIA.

Moreover, it appears that the custodian has further detennined that all four elements of the test described above for the disclosure for employee-evaluation records are met in this instance: 1) you were suspended or terminated; 2) the decision to suspend or terminate is final; 3) the record formed the basis for your suspension or termination; and, 4) the public has a compelling interest in the record's disclosure. As stated above, whether an employee-evaluation record is exempt from disclosure is a question of fact that must be answered in the first instance by the custodian, taking into consideration all of the relevant information.

9
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.").
0
' See, e.g., Ops. Att'y Gen. 2010-055 (deeming a compelling public interest to exist when records "reflect that the suspensions occurred as a result of the violation of rules aimed at conduct which manifestly could undermine the public trust.. .. ") and 97-400 ("[I]t is my opinion that the nature of the problem that led to the suspension compels disclosure in this instance where the activities detailed in the records violated administrative rules and policies aimed at conduct which could undermine the public trust.. .. "). 11 See Op. Att'y Gen. 96-168; Watkins, et al., at 223.
 Brandon Smith c/o Amber Schubert
Opinion No. 2018-034
Page 6

Again, based on the face of the record before me, I cannot say that the custodian's decision to disclose the record in this instance is inconsistent with the FOIA.

Sincerely,

,.- :::::::=>/,'.b-
.c:::LESLIE RUTLEDG~
Attorney General