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

Dr. Shella Atlas Evans, the Labor and Employee Relations Manager for the City of Little Rock's Human Resources department, asked Attorney General Leslie Rutledge whether the City's plan for handling a FOIA request was consistent with the Arkansas FOIA. The request, made by a city employee, sought "final disposition of harassment complaints by IT personnel" and "a copy of all items in [the requester's] personnel files to include any correspondence related to [the harassment complaint]."

The custodian had decided to:

• release certain records as the requesting employee's personnel records, accessible to the employee herself;
• withhold the remainder, including audio recordings and witness statements collected during the investigation, as employee-evaluation records that did not satisfy the section 25-19-105(c)(1) test for release.

Attorney General Leslie Rutledge mostly agreed with that classification, but identified four records that had been misclassified as employee-evaluation records. Three of those four were not evaluation records at all but ordinary public records subject to disclosure under the FOIA's general public-record presumption. The fourth was the requesting employee's own personnel record, which the custodian could release to her under the same approach used for the other personnel records the City had identified.

Without the names of the misclassified documents, the rule of decision is what the custodian had to take away: not every record gathered during an internal investigation becomes an employee-evaluation record. Some are ordinary administrative records (correspondence, internal directives, finding letters that do not detail conduct) that retain their public-record status. The custodian's job is to look at each record individually and apply the Thomas v. Hall, 2012 Ark. 66, three-part definition: created by or at the employer's behest, to evaluate the employee, that details the employee's performance or lack of performance.

The AG's review also reaffirmed the standard rule that the employee-evaluation exception only blocks release when the employee at issue has been suspended or terminated and the records formed the basis for that final decision. If the harassment investigation did not result in a suspension or termination, the witness statements and tape recordings could not be released to anyone (including the requester) under the employee-evaluation exception's strict four-part test, because element 1 (suspension or termination) would never be met.

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

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., presumes public records are open. For records created during an internal investigation of a public employee, the dominant exceptions are:

• Personnel records (§ 25-19-105(b)(12)): all records about an individual employee that are not employee-evaluation records. Open unless disclosure would be "a clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test.

• Employee-evaluation or job-performance records (§ 25-19-105(c)(1)): records (1) created by or at the employer's behest (2) to evaluate the employee (3) detailing the employee's performance or lack of performance, per Thomas v. Hall, 2012 Ark. 66. Closed unless all four release conditions are met (suspension or termination, finality, basis for the disciplinary action, compelling public interest).

The two exceptions are mutually exclusive: a record is one or the other, not both. But a single investigation often generates a mix of both kinds of records plus ordinary public records (general correspondence, dispositional letters, administrative notices). The custodian must classify each record separately.

How the AG identified the four misclassified records

The opinion did not name the four misclassified documents, but the AG's analysis indicates the custodian had treated some records as evaluation records simply because they were generated during the investigation. That is not enough. To be an evaluation record, a document must "detail the employee's performance or lack of performance on the job." A document that merely confirms an investigation occurred, or summarizes an outcome at a high level, may not satisfy that detail requirement. Similarly, a record that documents administrative steps (notice of complaint, scheduling letters, communications with the requesting employee herself) may be a personnel record of the requester or a routine public record, not an evaluation record of the subject employee.

For the three records that the AG reclassified as ordinary public records, the custodian had to release them subject to the standard FOIA test. For the one record reclassified as the requester's own personnel record, the custodian had to release it to her under the same approach applied to the other personnel records.

How the requester's own personnel records get treated

The requester's "personnel files" include any record about her individually that is not an evaluation record. Under Op. Att'y Gen. 2015-072 and similar prior opinions, the requester is entitled to access her own personnel records on the same footing as any FOIA requester. The "clearly unwarranted invasion of personal privacy" test does not block self-access, because the requester is the subject of the privacy interest and has effectively consented to disclosure of her own information.

But the requester does not get any special access to evaluation records about herself. If the requester was not suspended or terminated, those records remain confidential under the four-part test, even from the requester. That is one of the more counterintuitive features of the Arkansas FOIA.

Common questions

Did the AG identify the four misclassified records?

No. The opinion did not name them. The custodian was expected to apply the AG's framework and reclassify the four documents on her own.

Could the requester get the audio recordings of the witness interviews?

The opinion treats those as evaluation records. Unless the subject employee of the investigation was suspended or terminated based on those recordings, they remain confidential under section 25-19-105(c)(1). The requester's status as a complainant does not unlock them.

Why does it matter that some records are personnel records vs. evaluation records?

Different tests apply. Personnel records are presumptively open (subject to the privacy balancing test), while evaluation records are presumptively closed (subject to the strict four-part release test). Misclassification can mean a record gets withheld when it should be released, or vice versa.

What if the City classified records as evaluation records to make withholding easier?

The opinion does not accuse the custodian of doing that. But the AG's reclassification reinforces that custodians must apply the Thomas v. Hall test record-by-record, not categorically by source.

Could a non-employee third party request the same records?

The legal classification would not change. If a record is a personnel record disclosable to the requester here, it is also disclosable to a non-employee requester (with the standard redactions). If a record is an evaluation record, it stays confidential to everyone unless the four-part test is met.

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. 2018-093, 2015-072, 2010-044, and the line of personnel/evaluation opinions cited therein.

Source

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

Original opinion text

Opinion No. 2018-085
July 16, 2018
Shella Atlas Evans, Ed.D
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

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. 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 (Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital status of employees and information about dependents; dates of birth of public employees; social security numbers; medical information; any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10)); driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; and banking information.

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; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and (4) the public has a compelling interest in the disclosure of the records in question.

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.

In my opinion, the custodian's decision to release the requester's own personnel records is consistent with the FOIA. The records she would release to the requesting employee are properly classified as that employee's personnel records.

Most of the remaining documents have been correctly classified as employee-evaluation records that cannot be released because the test for disclosure of evaluation records is not satisfied. However, four records appear to have been improperly classified. Three of them appear to be ordinary public records subject to disclosure under the FOIA's general public-record presumption (with appropriate redactions of any private contact information). The fourth appears to be the requesting employee's own personnel record, which the custodian may release to the employee on the same basis as the other personnel records identified above.

Sincerely,

LESLIE RUTLEDGE
Attorney General