Are complaints about Arkansas public school employees exempt from FOIA, and what should a requester do when an agency claims a record does not exist?

Plain-English summary

Russell R. Racop submitted a FOIA request to the Fayetteville Public School District for "complaints filed against [the District's superintendent], including accompanying documents or evidence." The District denied the request, citing Ark. Code Ann. § 25-19-105(c)(1) (the employee-evaluation records exemption). The District's general counsel later said the District had "no records in its possession responsive" to the request. Racop disputed the veracity of that statement and asked the AG whether the custodian's denial was consistent with the FOIA.

AG Leslie Rutledge gave two answers, both procedural rather than substantive:

1. The abstract question cannot be answered. Complaints about public employees can qualify as either personnel records or employee evaluation records, depending on the particular record and the circumstances of its creation. Whether a specific complaint is exempt depends on which classification applies and whether the relevant test is satisfied. Without seeing the actual records (or having details about how they were created), the AG cannot opine.
2. The AG cannot enforce FOIA. Whether the District actually has responsive records is a factual question outside the AG's role. The AG explicitly noted: "I do not have the power or duty to enforce compliance with FOIA requests... 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."

This is a procedurally important opinion. It draws the line between what AG opinions can do (advise on FOIA classification standards) and what they cannot do (force a custodian to produce records the custodian says do not exist).

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.

Common questions

Are complaints about public employees personnel records or evaluation records?

It depends on how the complaint relates to the employee. Records "generated while investigating possible employee misconduct and that detail incidents that gave rise to an allegation of misconduct" are evaluation records under the test in Thomas v. Hall. A complaint that generates an internal investigation typically becomes an evaluation record. But a complaint that simply lives in a file without triggering an investigation might be classified as a personnel record. The classification matters because the test for release is different for each.

What can a requester do if the agency says the records do not exist?

Three options:

1. Refine the request, in case the agency's interpretation of "responsive" was too narrow.
2. File a FOIA enforcement action in court. The Arkansas FOIA permits civil enforcement, and a court can order production if records exist.
3. Refer the matter to a local prosecuting attorney; FOIA violations are statutory misdemeanors in Arkansas.

The AG opinion process cannot resolve disputes about whether records exist; it can only opine on classification once a record is identified.

Why won't the AG just look behind the curtain to verify whether records exist?

Because the AG's opinion power is advisory and limited. Section 25-19-105(c)(3)(B)(i) gives the AG authority to opine on whether a custodian's release decision is consistent with the FOIA. It does not give the AG investigative power, subpoena authority, or enforcement jurisdiction. The AG's office is a legal-opinion shop, not an enforcement agency.

Does this mean the District is right that the records are exempt?

The opinion does not say. The AG's response is procedural: without specific records to review, the AG cannot opine on whether the District's general counsel correctly applied § 25-19-105(c)(1). If Racop wanted a substantive opinion, he would need to identify a specific document and present its details, or take the matter to court.

What is the practical lesson for FOIA requesters?

Frame your request specifically. If the agency denies, ask for a record-by-record explanation (so you can identify which records are at issue). If the agency says records do not exist and you have reason to doubt that, court is the venue, not the AG.

Background and statutory framework

The Arkansas FOIA classifies records about public employees into two categories with different exemption tests:

• Personnel records under Ark. Code Ann. § 25-19-105(b)(12): subject to the Young v. Rice balancing test.
• Employee evaluation/job performance records under Ark. Code Ann. § 25-19-105(c)(1): closed unless the four-element test is met (suspension/termination, finality, basis, compelling public interest).

Thomas v. Hall, 2012 Ark. 66, controls when a record qualifies as an evaluation record.

The AG's opinion authority under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is advisory only. The AG does not enforce FOIA compliance.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion procedure)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2016-130 (AG has no power to enforce FOIA compliance)

Source

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

Original opinion text

Opinion No. 2018-038
April 12, 2018
Russell R. Racop
301 Alamo Drive
Little Rock, AR 72211
Dear Mr. Racop:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
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. SUITE 200 · LITTLE ROCK. ARK/\NSAS 72201
TELEPHONE (501) 682-2007 · FAX (50 I) 682-8084
ARKANSASAG.GOV Russell R. Racop
Opinion No. 2018-038
Page 2
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. Russell R. Racop
Opinion No. 2018-038
Page 5
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. Russell R. Racop
Opinion No. 2018-038
Page 6
• 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. Russell R. Racop
   Opinion No. 2018-038
   Page 7
   [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. Russell R. Racop
   Opinion No. 2018-038
   Page 8
   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
   d' ") recor .... . 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