Are complaints and investigation records about Arkansas public school employees exempt from FOIA?

Plain-English summary

Russell Racop asked the Fayetteville Public School District for complaints about its superintendent and any accompanying documents. The district denied the request under the employee evaluation provision of Arkansas FOIA. Its counsel later said the district had no responsive records, which Racop disputed. He asked Attorney General Leslie Rutledge whether a complaint about a public employee was exempt.

The AG could not decide the exemption question without a particular record or facts about its creation. She explained that complaints and related investigation material may be personnel records or employee evaluation records. An unsolicited complaint is a personnel record even if it later prompts an investigation. Records the employer creates or directs to evaluate an employee and detail job performance, including investigative records, may be evaluation records. The two categories have different disclosure tests.

The AG also said she had no power or duty to enforce FOIA requests or resolve whether the district possessed responsive records. Identifying them required factual determinations within the custodian's role. She gave the general standards but did not decide whether this district properly withheld any particular document.

Currency note

This opinion was issued in 2018. Verify the current FOIA text and later interpretations before applying its tests to a present request.

Common questions

Does an investigation turn an unsolicited complaint into an evaluation record? No. The AG quoted earlier guidance saying records created at the employer's behest during an investigation can be evaluation records, while an unsolicited complaint is a personnel record even if it is kept in an investigation file.

What test applies to a personnel record?
It is open unless disclosure would be a clearly unwarranted invasion of personal privacy. The AG described a balance between the public's interest and any more than minimal privacy interest, with the balance favoring disclosure. Specific information may still require redaction.

What test applies to an employee evaluation record?
Disclosure requires a suspension or termination, final administrative resolution, the record's role as a basis for that decision, and a compelling public interest. The custodian must classify each record and apply the appropriate test.

Did the AG find that the district's denial was lawful? No. She had no responsive records to examine and no facts about their creation or the custodian's decision. She therefore could not decide whether a specific document was releasable or required redaction.

Did the AG determine whether responsive records existed? No. The district's counsel said it had none, and Racop disputed that statement. The AG said identifying responsive records is the custodian's task and that she cannot enforce compliance with FOIA requests through this opinion process.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allows a requester, custodian, or record subject to ask for an AG opinion on a release decision concerning personnel or evaluation records. Personnel records fall under § 25-19-105(b)(12); evaluation records fall under § 25-19-105(c)(1). This opinion says the source and purpose of each document matter to its classification, so a general label such as “complaint” cannot answer the disclosure question by itself.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (opinion request)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation record definition)
• Op. Att'y Gen. 2007-311 (investigation and unsolicited-complaint distinction)

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTORN EY G EN ERAL
LESLI E RUT LE DGE

Opinion No. 2018-038

April 12, 2018

Russell R. Racop
301 Alamo Drive
Little Rock, AR 72211

Dear Mr. Racop:

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.

The correspondence you have provided indicates that you submitted a FOIA request to the Fayetteville Public School District (District) for "[ c]omplaints filed against [the District's superintendent], including accompanying documents or evidence sent or provided by the complainant or the complainant's representative." The request was denied. In denying your request, the District's general counsel stated that "all records relating to internal complaints, investigations and other personnel matters involving employees of [the District], including [the superintendent], are exempt from disclosure under Ark. Code Ann.
§ 25-19-105(c)(l)." 1

1
The District's general counsel later stated that "[the District] has no records in its possession responsive to your request." You have questioned the veracity of that statement. As I have previously noted in this regard, I do not have the power or duty to enforce compliance with FOIA requests. See Op. Att' y Gen. 2016-130 . Identifying records responsive to FOIA requests is a task uniquely within the custodian's purview, both as a statutory matter and as a practical matter because it requires factual determinations that are outside the scope of an opinion from this office. Id.

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARK/\N SAS 72201 TELEPHONE (50 1) 682-2007 · FAX (50 I ) 682-8084 ARKANSASAG .GOV
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You have asked for my opinion "regarding whether a complaint about a public employee is exempt under [FOIA]."

RESPONSE

Your question does not point to a specific complaint, but rather is asked in the abstract. My statutory duty is to state whether the custodian's decision regarding the release of personnel or employee-related records is consistent with the FOIA. The FOIA provision invoked by the District in this instance to deny your request-Ark. Code Ann. § 25-19-105(c)(l)-applies to employee-evaluation records. Because I have not seen any records that would be responsive to your FOIA request, and I have no information surrounding their creation or the factual basis for the custodian's decision, I cannot opine about the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only note, generally, that records relating to complaints and investigations involving public employees can qualify as either personnel records or evaluation records, depending upon the particular record and the particular circumstances surrounding the record's creation. This is explained further below in a discussion of the general standards for determining whether certain employee-related records are releasable under the FOIA. Once a complaint is classified as either a personnel or employee-evaluation record, the applicable test must be applied to determine whether the particular complaint document is exempt under FOIA in whole or in part.

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 element is clearly met. The request was made to the Fayetteville Public School District, 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 Russell R. Racop Opinion No. 2018-038 Page 3

out by a public official or employee .... "2 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 3 Here, the types of documents requested-complaints and accompanying documents- involve the alleged performance or lack of performance of a public official. Accordingly, it seems clear that if the District has records that are responsive to your request, they are "public records" under this definition. 4 I will therefore proceed as though any responsive records are public records that must be disclosed, unless an exemption provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 5 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 6 or "employee evaluation or job performance records." 7 The test for whether these two types of documents may be released differs significantly.

2
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
3
See Op. Att'y Gen. 2010-044.
4
See, e.g., Ops. Att'y Gen. 2011-152, 2010-109, and 2008-064 (determining that complaint documents meet the FOIA's "public records" definition). 5 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). 6 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." 7 Id. at § 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." Russell R. Racop Opinion No. 2018-038 Page 4

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 that "personnel records" are all records other than emploree evaluation and job performance records that pertain to individual employees. 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." 9

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 10 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. 11

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. 12 If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the

8
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
9
Ark. Code Ann. § 25-19-105(b )( 12).
0
' 308 Ark. 593, 826 S.W.2d 252 (1992).
11
Watkins, et al., at 208.
12
Young, 308 Ark. at 598, 826 S.W.2d at 255.
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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. 13 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. 14 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. 15

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 16

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)(l3));

• 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 )(1 O));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);

13 Id.

14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
15
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
16
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
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• 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. Evaluation records exemption

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. 17 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 18

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). 19

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:

17
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. 18 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
19
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
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[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (I) 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. 20

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. 21 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. 22

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. 23 As with personnel records, whether a record qualified as an employee-evaluation record-and whether it is exempt from

20
Watkins, et al., at 238-39 (footnotes omitted).
21
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."). 22 See, e.g., Ops. Att'y Gen. 20 I 0-055 (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 .... "). 23 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
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disclosure-are questions of fact that must first be answered by the custodian after considering the relevant information.

III. Application.

As indicated above, records relating to internal investigations are in many cases properly classified as employee-evaluation records. But records relating to investigations can also qualify as personnel records. As one of my predecessors observed:

Although, again, I am not certain what records are contained in the requested internal affairs files, these types of files typically contain records related to an internal investigation of an employee's involvement in a particular event. This office has consistently taken the position that records in an internal affairs file that have been generated at the behest of the employer in the course of investigating a complaint against an employee constitute "employee evaluation/job performance records." Their releasability must therefore be evaluated under the three-part test [under section 25-19- 105( c)(l )] .... However, records related to an internal investigation that were not created at the behest of the employer (such as an unsolicited complaint) are classified as "personnel records," and their releasability must be evaluated under the test that is applicable to that type of record [section 25-19-105(b)(l2)]. 24

I have not seen any records that would be responsive to your FOIA request. And I have no information regarding the creation of any responsive records or the factual basis for the custodian's decision to deny your request. I consequently cannot opine about the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only note, generally, that records relating to complaints and investigations involving public

24
Op. Att'y Gen. 2007-311. This office has consistently opined that when a complaint was unsolicited, that is, it was not prepared by (or at the behest of) the employer, the complaint is not an employee-evaluation record. Rather, it is the personnel record of both the public employee complained about and the complaining employee. See Op. Att'y Gen. 2017-053 (and opinions cited therein). Accord Op. Att'y Gen. 2002-326 ("[A] document generated at an aggrieved employee's own instigation and subsequently conveyed to the employer constitutes a 'personnel recor d' .... ") . Russell R. Racop Opinion No. 2018-038 Page 9

employees can qualify as either personnel records or evaluation records, depending upon the particular record and the particular circumstances surrounding the record's creation.

Sincerely,

~!o~
Attorney General