Can the City of Gentry release a former police officer's application and training records under FOIA while withholding his performance evaluations, medical records, and crime-information-center reports?

Plain-English summary

The City of Gentry asked whether it could release some records about a former employee and withhold others in response to a FOIA request. The city proposed releasing the employee's application and interview notes, resignation and pay correspondence, training materials, and fingerprint verification after redacting personal information. It proposed withholding evaluation and performance reports, medical records, and Arkansas Crime Information Center (ACIC) reports. The Attorney General had not reviewed the actual records, so her conclusions depended on the custodian's classifications and the facts.

The AG said the five groups proposed for release "generally qualify as personnel records" and are "typically subject to disclosure." Their release with personal information redacted was likely consistent with FOIA. The custodian still had to apply the privacy balance to each record and check whether any additional redactions were necessary.

For the evaluations, the AG assumed the city's classification was correct because she had no facts to test it. Release of employee evaluation records requires suspension or termination as a threshold, along with the other statutory conditions. A resignation letter "suggests that the former employee was not terminated," but does not establish it. The AG concluded that withholding was consistent if there was no termination and the records formed no basis for a suspension. Only after that threshold is met does the inquiry reach whether there is a compelling public interest. The opinion did not find what actually happened to this employee.

The AG also said withholding medical records was consistent "so long as the records in fact qualify" for the medical-records exemption. She said the ACIC reports were exempt under a separate statute, Ark. Code Ann. § 12-12-211.

Currency note

Issued July 25, 2018. This describes the AG's analysis at that time. Check current law and the actual records before relying on it.

What the custodian must decide

The FOIA analysis begins with whether the entity is covered, the documents are public records, and an exception applies. The AG said the request to Gentry appeared to meet the first two elements. She described personnel records and employee evaluation records as separate categories with different disclosure tests.

For personnel records, Young v. Rice balances the public interest in access against the employee's privacy interest, with "the scale tipped in favor of disclosure." The AG said applications, training documents, and the other five listed groups generally fall here. Even a releasable document may contain discrete information that must be redacted. The opinion lists personal contact information, Social Security numbers, dates of birth, medical information, and other examples. The custodian has to inspect the individual records for those details.

For evaluation records, all four conditions must be met before release: suspension or termination, a final administrative resolution, the records' role as a basis for the disciplinary decision, and a compelling public interest. The AG could not verify that the reports were evaluation records or determine from the resignation letter alone whether the first condition failed. The city therefore had to establish whether there was a termination or a suspension based on these records and classify each record correctly before relying on the AG's conditional approval.

Common questions

Did the AG find that the employee voluntarily resigned?

No. She wrote that the resignation letter "suggests" the employee was not terminated. She made withholding contingent on there being no termination and on the records forming no basis for a suspension. She did not review the underlying records.

Was the city's claim of no compelling public interest enough to withhold evaluations?

The AG focused first on suspension or termination, which must be present before the public-interest question is reached. She assumed, without testing, that the reports were properly classified as evaluation records. If there was no termination and the records formed no basis for a suspension, the threshold for release would fail; the opinion did not decide whether a compelling public interest existed.

Could the city release all five personnel-record groups without further review?

The AG called release with redactions "likely consistent" with FOIA. She said the custodian must apply the balancing test to "each, individual record" and ensure no further redactions are needed.

Were the medical and ACIC records treated alike?

No. The AG conditioned withholding the medical records on their actually meeting the FOIA's medical-records exemption. She said ACIC reports were exempt under a separate, specific statute.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(2), (b)(12), (b)(13), (c)(1), (c)(3)(B)(i), 12-12-211; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387.

Source

• Official opinion search: 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
LES LI E RUTL EDGE

Opinion No. 2018-090

July 25, 2018

Jay B. Williams, Esq.
Williams Law Firm of Arkansas
100 W. Main Street
Gentry, AR 72734

Dear Mr. Williams:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 someone has submitted a FOIA request to the City of Gentry for various records concerning a former City employee. Specifically, the requester seeks "any document or electronically stored information . . . from any Internal Investigation, Professional Standards file, personnel, and/or similar file ... , including but not limited to, all job evaluations, job performance records, or other documentation of any disciplinary or termination action(s) .... "

You state that you are producing the following set of items, after redacting personal information, such as date of birth, social security number, and personal address and phone number: 1) the former employee's application and City interview notes; 2) officer inventory, letter of resignation, acceptance letter, and various emails addressing pay and final pay issues; 3) various Arkansas Law Enforcement Standards documents related to employment; 4) training certificates and other training and/or education documents; and 5) fingerprint verification. You further state that you are withholding several evaluations and performance

323 C ENTER STREET. SU ITE 200 · LI TTLE R OC K. A RKJ\N SJ\S 72201 TELEP H O N E (501) 682-200 7 · FA X (501 ) 682-8084 A RKA N SASA G .GO V

Jay B. Williams, Esq.
Opinion No. 2018-090
Page 2

reports because the City contends there is no compelling public interest in the disclosure of these records. Finally, you plan to withhold medical records and Arkansas Crime Information Center (ACIC) reports.

You ask "whether the City's decision in this regard is consistent with the FOIA."

RESPONSE

I have not seen the responsive records and, therefore, cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can opine generally, however, that your decision to disclose items 1 through 5 above, with personal information redacted, is likely consistent with the FOIA because these items qualify as personnel records that are typically subject to disclosure under the applicable test. Regarding the evaluation and performance reports that you intend to withhold, I gather these qualify as evaluation records under the FOIA. As such, they cannot be released unless, as a threshold matter, the former employee was either suspended or terminated. You reference a letter of resignation, which seems to suggest there was no termination. If that is true, and if the records in question did not form the basis for any suspension, then your decision to withhold the evaluation and performance reports is consistent with the FOIA because the first element for release is not met. Your decision to withhold medical records and ACIC reports is consistent with the FOIA because these records are specifically exempt from disclosure.

I will set out the legal standards that must be applied to determine whether the particular employee-related records at issue must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify each responsive record and apply the applicable test for disclosure.

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.

Jay B. Williams, Esq.
Opinion No. 2018-090
Page 3

The first two elements seem to be met. The request was made to the City of Gentry, 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

Therefore, in my opinion, the records at issue 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. 3 For purposes of the FOIA, these items can usually 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.

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- 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)(1 ): "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."

Jay B. Williams, Esq.
Opinion No. 2018-090
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 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

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

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 )( 12) (Supp. 2017).
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.

Jay B. Williams, Esq.
Opinion No. 2018-090
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. 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:

• 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 )(1 O));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);

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.

Jay B. Williams, Esq.
Opinion No. 2018-090
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. 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. 15 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 16

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 public interest). 17

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

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.
17
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

Jay B. Williams, Esq.
Opinion No. 2018-090
Page 7

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. 18

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, 19 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. 20

III. Application.

Although I have not reviewed the actual records at issue, the records you have identified under items 1 through 5 (as listed at the beginning of this opinion) generally qualify as personnel records under the above definition. And these kinds of records are typically subject to disclosure because they ordinarily do not involve disclosing information that would constitute a "clearly unwarranted invasion of personal privacy." 21 It is therefore my opinion that the decision to disclose items 1 through 5, with personal information redacted, is likely consistent

18
Watkins, et al., at 238-39 (footnotes omitted).
19
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."). 2
°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
21
Ark. Code Ann.§ 25-19-105(b)(12).

Jay B. Williams, Esq.
Opinion No. 2018-090
Page 8

with the FOIA. But ultimately, the custodian must apply the above balancing test to each, individual record to ensure that no additional redactions are required.

Regarding the evaluations and performance reports, your reference to the absence of a "compelling public interest" in disclosure indicates that the City has classified these records as employee-evaluation records, as defined above. I have no facts by which to test that classification, but I will assume for purposes of this opinion that it is correct, i.e., that the records were created by or at the behest of the City to evaluate the former employee. You have also referenced a letter of resignation, which suggests that the former employee was not terminated. If, in fact, there was no termination, and if the former employee was not suspended, then your decision to withhold the evaluations and performance reports is consistent with the FOIA because the first element for the release of employee-evaluation records (suspension or termination) is not met. That threshold element for the records' release must be present before the inquiry can reach the fourth element (the existence of a compelling public interest in disclosure).

Finally, your decision to withhold medical records is consistent with the FOIA, so long as the records in fact qualify for that specific exemption under the FOIA. 22 And the decision to withhold ACIC reports is also consistent with the FOIA because these records are exempt from disclosure under a separate, specific statute. 23

Sincerely,

.C-~-
L //~"fa
LESLIE RUTLEDGE
Attorney General

22
Id. at § 25-19-105(b )(2). The statute does not define the term, but this office has consistently opined that "medical records" are public records containing information relating to a physician's treatment or diagnosis of a medical condition. See Op. Att'y Gen. 2018-011. 23 Ark. Code Ann. § 12-12-211 (Rep!. 2016).