Can a school district release records from a sexual-harassment investigation that ended a superintendent's employment under the Arkansas FOIA, and what must be redacted?

Plain-English summary

Elizabeth R. Murray, an attorney representing the subject of records (the former superintendent of Fayetteville Public Schools District), asked Attorney General Leslie Rutledge whether the District's planned release of nearly 200 pages of records from a sexual-harassment investigation was consistent with the Arkansas FOIA. The District had received two FOIA requests for "all records: including voice and video recordings, text messages, and witness interviews: related to a sexual-harassment investigation" that culminated in the FPSD Board's termination of the superintendent's contract. The custodian classified the records as a mix of the superintendent's personnel records and employee-evaluation/job-performance records, and decided most could be disclosed with redactions.

The AG largely upheld the custodian's decision, but with important caveats:

Most records were properly classified and disclosable. The records that the custodian classified as employee-evaluation records met all four elements of the section 25-19-105(c)(1) test: (1) the superintendent was terminated, (2) the termination proceeding was final, (3) the records formed a basis for that termination decision, and (4) the public had a compelling interest in the records given the seriousness of the allegations and the high-level position involved.

The complainant's identity must be redacted. Even where investigation records are otherwise releasable, the records contained the personnel records of another employee (the complainant). Applying Young v. Rice, the public's interest in knowing whether a high-ranking school official engaged in alleged misconduct was significant, but the public's interest in the complainant's identity was minimal. The privacy interest of the complainant in not being identified outweighed the disclosure interest. The custodian had to redact all identifying information about the complainant.

The complainant's children's names must be redacted. The opinion noted that the records contained the complainant's children's names unredacted. The AG said "[i]t should go without saying" that those names had to be redacted before release.

One document is not a public record at all. Document "MW11" was determined not to be a public record. It could not be released under any classification.

Document MW10 contained personal medical information that had to be redacted before release, even though the document overall was a personnel record subject to disclosure.

The cellphone usage records and text messages between the superintendent and complainant were public records. Murray argued that personal cellphone records and text messages between her client and the complainant were not "public records" under section 25-19-103(7) because they did not "reflect the performance or lack of performance of official functions." The AG disagreed: given the quantity and nature of the calls and messages exchanged during work hours, a court could conclude they reflected the "lack of performance of official functions." So they were public records and disclosable, with the complainant's identifying information redacted.

The AG also referenced Op. Att'y Gen. 2018-083 as the companion analysis on this same investigation.

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.

Background and statutory framework

Two distinct FOIA exceptions apply when an investigation produces records about a public employee:

• Personnel records (Ark. Code Ann. § 25-19-105(b)(12)): records about the employee that are not employee-evaluation records. They are open to inspection unless disclosure would be "a clearly unwarranted invasion of personal privacy," using the Young v. Rice two-step balancing test (de minimis privacy interest test, then balancing public versus private interests with the scale tipped toward disclosure).

• Employee-evaluation or job-performance records (Ark. Code Ann. § 25-19-105(c)(1)): 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," following the Arkansas Supreme Court's adoption of that test in Thomas v. Hall, 2012 Ark. 66. This category includes records generated while investigating allegations of employee misconduct that detail the underlying incidents. Such records are confidential unless four conditions are all met: (1) the employee was suspended or terminated; (2) the proceeding has reached a final administrative resolution; (3) the records formed the basis for that decision; and (4) the public has a compelling interest in the records' disclosure.

The "compelling public interest" element is the most fact-intensive. Leading commentators have identified factors: the nature of the infraction (especially violations of the public trust or gross incompetence), the existence of a public controversy related to the agency, and the employee's position within the agency. Higher-level employees facing serious allegations are more likely to satisfy the test.

How the AG applied the framework to the FPSD records

The AG worked through the records in three buckets.

Records classified as employee-evaluation records

These included witness interviews, audio/video recordings of investigation meetings, internal investigator notes, and similar materials prepared as part of evaluating the superintendent's conduct.

All four elements were met. The superintendent was terminated. The Board's decision was final. The records formed the basis for termination. And the compelling public interest existed because the position (superintendent of a large public school district) and the allegations (sexual harassment of a subordinate) implicated both gross unprofessional conduct and a public controversy connected to a public agency.

So those records were disclosable. But the AG flagged that some of these records also functioned as the complainant's personnel records (since they were about the complainant's experience), which triggered the next analysis.

Records that were also the complainant's personnel records

For these, the disclosure analysis shifts: the records are personnel records of the complainant subject to the Young v. Rice test, regardless of how they were classified relative to the superintendent.

The AG concluded that the public's interest in the alleged misconduct of a high-level public official was significant, and most of the substance of the records was disclosable. But the complainant's identity itself carried very little public-interest weight, and the complainant's privacy interest in not being identified was substantial given the highly sensitive nature of the events. So the complainant's name and any identifying information had to be redacted, including any other identifying details that could let a reader piece together who reported.

This is the same logic Op. Att'y Gen. 2004-012 applied to a mayor's-office sexual-harassment situation, where the AG opined that the public interest hinged on the mayor's alleged conduct, not on the complainant's identity.

The complainant's children's names presented a similar but more obvious analysis: minor children of a complainant have an even stronger privacy interest, and there is no public interest in their identification.

Records that were not disclosable at all

Document "MW11" was not a public record. The AG agreed with Murray that this document fell outside the section 25-19-103(7) definition of "public record" and could not be released under any FOIA theory.

Document "MW10" contained personal medical information about the superintendent. Even though the document itself was a personnel record subject to disclosure, medical information must always be redacted under Op. Att'y Gen. 2003-153 and similar prior opinions.

Personal cellphone records and text messages

This was the contested classification. Murray argued the personal cellphone usage records (showing many calls and texts between her client and the complainant) and the text messages themselves were not public records because they did not reflect official functions. They were, on her view, private communications that happened to involve a public employee.

The AG disagreed. Looking at "the quantity and nature" of the communications, all during work hours, a court could conclude they reflected the "lack of performance of official functions." Public records under section 25-19-103(7) include records that document either performance or lack of performance of official functions. So the volume and timing of the communications brought them within the public-record definition. They were therefore disclosable, with the complainant's identifying information redacted.

Common questions

Did this opinion clear the District to release everything?

No. It cleared the District to release most of the records but required redactions of: the complainant's name and identifying information; the complainant's children's names; the medical information in MW10. And it identified MW11 as outside the FOIA entirely.

Why does the law treat the superintendent's misconduct as more disclosable than the complainant's identity?

The Young v. Rice balancing tips toward disclosure, but it weighs each party's interests separately. The public has a strong interest in transparency about how high-ranking public employees behave on the job and how they were terminated, because taxpayers fund the position and the conduct affects students. The public has comparatively little interest in who reported the misconduct, because the act of reporting is not itself the public-interest event. So the same record can be disclosable as to one employee's conduct and confidential as to another's identity.

Could the complainant later be identified by piecing together facts in the released records?

That is a real concern, and it underlies the AG's instruction to redact "all information that could be used to identify the complainant," not just the name. In practice, custodians have to consider the entire record set together, because individual redactions may still leave a "mosaic" that identifies the person.

What about media reports that already named the complainant?

The opinion did not address that scenario. As a general matter, prior public identification by media does not change the FOIA classification, though it might affect the practical effect of redaction.

Were the text-message contents themselves disclosable?

Yes, with the complainant's identity redacted. The AG's reasoning treats the messages as evidence of the superintendent's conduct on the job (or off the job during work hours), making them disclosable as part of the basis for termination.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(10), (b)(12), (b)(13); 25-19-105(c)(1), (c)(3)(B)(i); 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. 2018-083, 2016-055, 2015-072, 2014-094, 2010-044, 2009-067, 2008-065, 2008-004, 2007-225, 2007-070, 2007-064, 2007-025, 2006-176, 2006-038, 2006-035, 2005-194, 2005-030, 2004-260, 2004-167, 2004-012, 2003-385, 2003-336, 2003-153, 2003-073, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-006, 98-001, 97-368, 97-222, 96-168, 95-351, 94-306, 94-198, 93-055; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Source

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

Original opinion text

Opinion No. 2018-084
July 9, 2018
Elizabeth R. Murray, Esq.
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Friday Eldredge & Clark, LLP
400 West Capitol Ave., Suite 2000
Little Rock, AR 72201-3522
Dear Ms. Murray:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, submitted as the attorney for the subject of the records, 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 Fayetteville Public School District ("FPSD" or "the District") has received two FOIA requests for all records — including voice and video recordings, text messages, and witness interviews — related to a sexual-harassment investigation of your client that culminated in the FPSD Board's decision to terminate his employment contract. The District's records custodian classified the requested records as either your client's "job performance and/or personnel records" and determined therefore that they are disclosable under the FOIA as redacted. You have raised several objections to the custodian's decision to disclose of all or at least some of the documents. You ask whether the custodian's decision is consistent with the FOIA.

RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the voluminous records that you have provided, it is my opinion that most of the records have been properly classified as either your client's personnel records or employee-evaluation or job-performance records, and that they are subject to disclosure under the applicable tests for those types of records. However, there are some records possessed by the District that should not be disclosed, in my opinion. Moreover, numerous redactions must be made to the records to withhold the complainant's identity, children's names, personal address, and so forth. I will set out all the definitions and standards and then apply them to the records you attached.

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. First, the requests were made to the FPSD, which is a public entity that is subject to the FOIA. Second, the requests appear to pertain to public records, although you dispute this with respect to a number of the 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 [are] 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

As I understand it, the attached documents were created or collected in connection with an investigation of a sexual-harassment complaint made against your client by a subordinate District employee. Accordingly, in my opinion, most of the attached documents reflect the performance or lack of performance of official functions. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or 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 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 employee 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."

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

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. 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.

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

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

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).

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 trust should be sufficient to satisfy the "compelling public interest" 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, 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.

III. Application.

The custodian has classified the nearly 200 pages of documents you provided with your request for my opinion as either your client's employee-evaluation records or his personnel records, and concluded that they are subject to disclosure in this case. In my opinion, the custodian's decision is mostly consistent with the FOIA, albeit with some caveats.

With respect to the records the custodian classified as employee-evaluation records, it appears that all four elements of the test listed above are met for their disclosure. Thus, while the custodian's decision to release those records is generally consistent with the FOIA, a number of those documents can also be classified as another employee's personnel records, mostly those of the complainant.

As I opined in Op. Att'y Gen. 2018-083, because of the highly sensitive nature of the events that led to the investigation and your client's subsequent termination, it is my opinion that a court would likely find that the disclosure of the complainant's identity would constitute a clearly unwarranted invasion of the complainant's personal privacy. Under the Young v. Rice balancing test described above, the public has a significant interest in knowing whether a high-ranking public-school official was allegedly engaged in conduct that would hamper his professionalism and that of his office. However, the public's interest in knowing the identity of the complaining employee is minimal, in my opinion. Under the circumstances described in the documents, it is my opinion that the Young v. Rice balancing test likely requires that the custodian redact all information that could be used to identify the complainant.

Of the remaining documents, it is my opinion that the custodian's decision to classify them as your client's personnel records is mostly correct. I agree with you that the document titled "MW11" should not be disclosed, as it is not even a public record. Furthermore, the record labeled "MW10" contains personal medical information that must be redacted.

You have asserted that the many pages of personal cellphone usage records, as well as the text messages between your client and the complainant, are personal in nature and do not meet the definition of a public record in that they do not "reflect the performance or lack of performance of official functions." In this case, I must disagree. In my opinion, calls and text messages that took place between the parties during work hours — which might ordinarily be considered merely the non-performance of one's job — were of such quantity and nature in this instance that a court likely could conclude that they reflect the "lack of performance of official functions."

In conclusion, it is my opinion that most of the custodian's decisions with respect to the records I have been provided are consistent with the FOIA, except as noted herein.

Sincerely,

LESLIE RUTLEDGE
Attorney General