Can the City of Little Rock release some records and withhold others in response to a city employee's FOIA request for the disposition of harassment complaints involving IT personnel and her own personnel file?

Plain-English summary

Little Rock's human-resources manager asked the Arkansas Attorney General to review a response to a city employee's FOIA request. The employee sought records on the disposition of harassment complaints involving IT personnel and items in her own personnel file. The City proposed to release some records as the requester's personnel records and withhold most remaining investigation material, including recordings and witness statements, as employee-evaluation records.

The Attorney General mostly agreed. The requester could receive her own personnel records. Most of the other records were employee-evaluation records that could not be released to the public under the four-part test, because the complaint and investigation had resulted in no suspension or termination. That test allows public release only when all four conditions are met, including a final suspension or termination, use of the record as a basis for that decision, and a compelling public interest.

Four records needed a closer classification. Two department-wide emails dated November 3, 2017, and February 2, 2018, and a January 31, 2018 staff-meeting agenda appeared to be ordinary, nonexempt public records. An October 16, 2017 email exchange involving the requester and supervisors might instead be the requester's own personnel record. The Attorney General left the final factual classification to the custodian.

Currency note

This opinion reviewed particular records in 2018. Check current Arkansas FOIA law and the content of the records before applying its classifications to another request.

Common questions

When can evaluation records be released to the public? Only when all four conditions described in the opinion are met: suspension or termination, final administrative resolution, use of the records as a basis for that action, and a compelling public interest. Here, the City reported no suspension or termination, so the Attorney General agreed with withholding most evaluation records from public release.

Could the requester receive her own personnel records? Yes. The opinion cites Ark. Code Ann. § 25-19-105(c)(2) for a public employee's access to her own personnel records, subject to limited exceptions it found irrelevant here. That ruling does not answer how a third party's request for the same personnel records would fare under the privacy test.

Which three records appeared to be ordinary public records? The two emails to the department's staff, dated November 3, 2017, and February 2, 2018, and the staff-meeting agenda dated January 31, 2018. The Attorney General said their content did not place them within the evaluation exception.

What about the October 16 email?
It appeared to be an exchange between the requester and supervisors that did not identify or allude to the investigation's subject. The Attorney General said it might be better classified as the requester's personnel record and left that factual call to the custodian.

Did the opinion rule on the requester's access to her own evaluation records? No. Its specific self-access ruling concerned the requester's personnel records. The separate four-part test in the opinion addresses release of evaluation records under the public-disclosure rule.

Background and statutory framework

Ark. Code Ann. § 25-19-105(b)(12) governs public disclosure of personnel records through a privacy balance. Ark. Code Ann. § 25-19-105(c)(1) governs public disclosure of employee-evaluation or job-performance records under a stricter four-part test. Ark. Code Ann. § 25-19-105(c)(2), cited in this opinion, separately supports employee access to the employee's own personnel records. The opinion applies the evaluation-record definition described in Thomas v. Hall and assesses each disputed document by its content.

Citations

• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(2)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLED GE

Opinion No. 2018-085

July 16,2018

Shella Atlas Evans, Ed.D
Labor and Employee Relations Manager
City of Little Rock, Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Ms. Evans:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is pursuant to 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 Little Rock has received a FOIA request for "final disposition of harassment complaints by IT personnel," as well as "a copy of all items in [the requester's] personnel files to include any correspondence related to [the harassment complaint]." You have attached several documents that you believe are responsive to the request. You have determined that some of the attached documents are the personnel records of the requester and should be disclosed. With respect to the remaining records, which include tape recordings and written statements given by witnesses, you have determined that these records are employee-evaluation records that do not meet the test for disclosure under the FOIA and should therefore be withheld. You ask whether your decisions are consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion that (1) you have properly identified the records you plan to disclose as the personnel records of the requesting

323 C ENTER ST REE T. SU ITE 200 · LITTLE ROCK. ARKAN SAS 7220 1 TELEPHONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKAN SA SAG.GOV

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Opinion No. 2018-085
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employee that may be released to the employee, and (2) you have properly characterized most of the remaining documents as employee-evaluation records that are not subject to disclosure under the FOIA. However, there are four records that, based on their face and in my opinion, have been improperly classified as employee-evaluation records. Three of those records appear to be merely public records subject to disclosure, and a fourth appears to be the requesting employee's personnel record, which is releasable to the employee. 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. The request was made to the City of Little Rock, which is a public entity, subject to the FOIA, and 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

As I understand it, all the attached documents were created or collected by the City as part of an internal investigation. Accordingly, in my opinion, all the attached documents meet the statutory definition of a "public record" 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. 3 For purposes of the FOIA, these items can usually

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

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be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or 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 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. 6 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." 7

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).

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)(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." 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

7
Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2017).

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While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 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. 9

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. 10 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. 11 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. 12 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. 13

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14 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:

8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id., 826 S.W.2d at 255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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• 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)(l0));
• 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 emplo(see (3) that detail the employee's performance or lack of performance on the job. 5 This exception includes records generated while investigating allegations of employee 16 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 of the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);

15
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. 16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

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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). 17

III. Application.
With respect to the requesting employee's own personnel records, it is my opinion that you have properly classified those records as the employee's personnel records. Under the FOIA, public employees are entitled to copies of their own personnel records (with limited exceptions noted above that are not relevant here). Ark. Code Ann. § 25-19-105( c)(2). Therefore, in my opinion, your decision to release those documents to the employee is consistent with the FOIA.

As I understand it, most of the remaining documents you submitted for my review were created either by or at the behest of the employer to evaluate an employee, which would make these documents employee-evaluation records. As employee- evaluation records, they cannot be released unless all the elements listed above are met. Because your correspondence indicates that no suspension or termination resulted from the complaint and subsequent investigation, the first prong of the test-the level of discipline-has not been met. Accordingly, your decision not to release those records is consistent with the FOIA, in my opinion.

However, I believe that your decision to classify four particular records as employee-evaluation records not subject to disclosure is inconsistent with the FOIA. Two emails-one dated Friday, November 3, 2017, and the other dated February 2, 2018-appear from the face of the records to have been sent to an entire department's staff, including the requestor. Based on the content of these emails, 18 they appear to be public records that are not subject to any exemption. And as such, they are subject to disclosure.

The third record, an email dated Monday, October 16, 2017, appears to depict an exchange between the requesting employee and one or more supervisors. The subject of the investigation is not named or even alluded to in a way that might

17
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
18
See Pulaski Cty. v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 446, 260 S.W.3d 718, 725 (2007) (stating that the definition of a "public record" is content-driven).

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reveal the subject's identity. As such, this record may be better classified as the requestor's own personnel record and subject to disclosure. But this is a factual determination for the custodian to make based on the relevant facts related to the record at issue.

Finally, a staff-meeting agenda, dated January 31, 2018, is, in my opinion, simply a non-exempt public record. Thus, in my opinion, this record is subject to disclosure under the FOIA.

In conclusion, it is my opinion that your decisions with respect to these records are mostly consistent with the FOIA. The above-mentioned four records, however, may instead be public records and the requestor's personnel record, respectively. This is ultimately a decision for the custodian to make in the first instance.

~ ~
RU~~
LESLIE
Attorney General