Was Fort Smith's decision to release a deputy director's disciplinary record inconsistent with Arkansas FOIA?

Plain-English summary

The City of Fort Smith received a FOIA request for disciplinary actions against a supervisor or manager during a specified month. It identified a record concerning Michelle Dodroe, deputy director of engineering for its Utilities Department, and decided to release it. Dodroe objected that no compelling public interest justified disclosure. She said her conduct did not involve misuse of public money, public interaction, a breach of trust, or gross incompetence.

Attorney General Leslie Rutledge concluded only that she could not say the custodian's release decision was inconsistent with FOIA. She classified the submitted record as an employee evaluation record. Dodroe disputed the compelling-public-interest condition, and the AG inferred that the custodian might have considered the number and cumulative effect of the matters listed in the record, Dodroe's senior management role, and an incident that appeared to concern financial software and might implicate public funds and trust. The AG had no information beyond the record itself and made no definitive factual finding that the public-interest condition was met.

Currency note

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

Common questions

What conditions govern release of an Arkansas employee evaluation record? 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. Dodroe objected to the fourth condition, so the AG inferred she agreed the other three were met.

Did the AG independently find a compelling public interest here? No. She had only the record to review and said it seemed reasonable to surmise why the custodian found the public interest compelling. Her conclusion was that she could not call the custodian's decision inconsistent with FOIA.

Does a senior management position alone require disclosure? The opinion does not establish that rule. Employee rank is one consideration. The custodian must review the particular document and surrounding facts; the four disclosure conditions still apply.

Why did an apparent financial software change matter? The AG said one matter listed in the record appeared to involve financial software. She reasoned that the issue raised there could involve public funds and could undermine public trust, while emphasizing the limits of what she knew from the document.

Did Dodroe's objection mean the record had to stay private? No. The AG explained that the factors Dodroe listed were not the only possible grounds for compelling public interest. The custodian had to consider all relevant facts and circumstances.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(1) governs disclosure of employee evaluation records. The AG said the submitted record plainly was created by the employer to evaluate Dodroe and detailed her job performance. She distinguished evaluation records from personnel records, which follow a different test. The opinion's review of the custodian's decision rested on the record and the information supplied, rather than a new factual investigation.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Ark. Code Ann. § 25-19-105(c)(1) (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 O F ARKAN SAS
ATTO RN EY G EN ERAL
LE SLI E RU T LEDG E

Opinion No. 2018-042

April 17, 2018

Michelle Dodroe, PE
Deputy Director of Engineering
Utilities Department, City of Fort Smith
801 Carnall Avenue, #500
Fort Smith, AR 72901

Dear Ms. Dodroe:

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 City of Fort Smith received a request under the FOIA for "any and all disciplinary action taken against a supervisor/manager in the City of Fort Smith between November 15, 2017, and December 15, 2017." The request specifically mentions "information pertaining to [you], but not limited to that one employee." You have attached a document that the custodian has determined to be responsive to the request and releasable pursuant to the FOIA. You object to this decision because you say "no compelling public interest would be served by [its] release." You point to your position and you assert that your "actions or lack thereof did not involve a misuse of public money, ... any interaction with the public[,] . . . [or] a breach of the public trust or gross incompetence." You ask whether the custodian's determination is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the

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Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 2

FOIA. I cannot say the custodian's decision in this instance 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 seem to be met. The request was made to the City of Fort Smith, which is a public entity subject to the FOIA. The request appears to pertain to public records. 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 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 2

It is apparent from the face of the document in question that it is a record of the performance or lack of performance of a public employee. Accordingly, in my opinion, it is a public record and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two types of records normally found in employees' personnel files: 3 "personnel records" and "employee evaluation or

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2
See Op. Att'y Gen. 2010-044.
3
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- Michelle Dodroe, PE Deputy Director of Engineering Opinion No. 2018-042 Page 3

job performance records." 5 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.

In this instance, I believe it is clear from the face of the record at issue that the relevant exception is the one for employee-evaluation records. 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 6 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. 7

Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 4 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." 5 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." 6 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. 7 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 4

The record is question was plainly created by the employer to evaluate you, and it plainly details your job performance. It therefore qualifies as an evaluation record under the FOIA. 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). 8

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. 9

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

8
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
9
Watkins, et al., at 238-39 (footnotes omitted).
Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 5

"compelling public interest" exists. 10 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. 11

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. 12 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.

Your objection to the record's release is based on your contention that there is no compelling public interest in its disclosure (the fourth element noted above). I therefore gather that you agree the other three elements for release are met.

This office has repeatedly opined that, in certain situations, a compelling public interest exists in the disclosure of documents pertaining to the categories of information you have identified. However, neither I nor any of my predecessors have opined that these are the only categories of information that could give rise to a compelling public interest favoring disclosure. In my opinion, regardless of what category of information a document contains, the custodian must conduct a detailed review of the document-considering all of the surrounding facts and circumstances-in order to determine whether a compelling public interest exists in its disclosure.

10
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."). 11 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 .... "). 12 See Op. Att'y Gen. 96-168; Watkins, et al., at 223.
Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 6

In this instance, I have no information other than the record at issue by which to gauge the custodian's apparent determination that the public has a compelling interest in its disclosure. From the face of the record, it seems reasonable to surmise that the custodian decided the public interest is compelling in light of the number of actions or inactions listed, and their cumulative effect in your role as a "deputy director" and a member of "senior management," as you are referred to in the record. Additionally, among the actions mentioned in the record is an incident concerning a change in what appears (from the face of the record) to be financial software. The issue raised in that matter could be said to involve the public fisc and that could undermine the public trust.

In light of the foregoing, I cannot say that the custodian's decision to disclose the record is inconsistent with the FOIA.

Sincerely,

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L. / ;...R"fo
LESLIE RUTLEDGE
Attorney General