Should an Arkansas school district release an unverified anonymous email accusing a former employee in response to a FOIA request?

Plain-English summary

The Marked Tree School District received a FOIA request concerning a former employee. One responsive record was an unsolicited anonymous email to the former employee and superintendent complaining about the employee's conduct. The district's custodian classified it as a personnel record and planned to disclose it. The Attorney General reviewed the record and agreed with its classification, but said "it is less clear that the record should be disclosed" because of its sensitive personal content.

Under Young v. Rice, the custodian weighs public access against personal privacy, with the scale tipped toward disclosure. The AG acknowledged a significant public interest in officials' conduct. She also noted the Arkansas Supreme Court's description of substantial privacy interests in information that reveals intimate details, could embarrass or disgrace someone, or could subject someone to harassment or loss of friends.

The AG emphasized three facts about this record: the email was anonymous, it was unsolicited, and the school district said it "was unable to verify or substantiate the allegations made in the record." She said the inability to verify might mean the allegations were false or embellished. On the record and facts supplied, "a reviewing court likely could conclude" that disclosure would substantially invade privacy, even with the scale favoring access. That is a cautious prediction, not an order or a final judicial determination.

A footnote addresses school records specifically. The AG said the public generally has a heightened interest in public-school officials' conduct during school hours, school events, or on school property, especially where students may be affected. She added that "few of those factors appear to be present" here. She did not find that every such connection was absent.

Currency note

Issued September 5, 2018. This opinion applies the FOIA privacy test to one email and the facts provided to the AG. Check current law and the actual record in another case.

How the custodian's analysis works

The opinion describes three initial FOIA elements: the request must reach a covered entity, the document must be a public record, and no exception may permit withholding. The school district was covered. The AG found the email a public record because it reflected the former employee's performance or lack of performance of an official function.

The custodian had classified the email as a personnel record. The AG agreed and limited her analysis to that category. Personnel records are generally open unless disclosure would be a "clearly unwarranted invasion of personal privacy." Under the two-step Young test, the custodian first asks whether the information has more than a minimal privacy interest. If it does, the custodian weighs that interest against the public interest in disclosure. The result for a particular record is a question of fact for the custodian in the first instance.

The AG said an otherwise releasable personnel record can contain discrete information requiring redaction, such as a public employee's personal contact details or Social Security number. Her concern with this email, however, was the privacy effect of disclosing its unverified personal allegations. The opinion does not specify a redaction that would resolve that concern.

Common questions

Did the AG say the email was exempt from FOIA?

She agreed it was a personnel record and expressed doubt about disclosure under the privacy balance. Her precise conclusion was that a reviewing court likely could conclude the balance favored finding a substantial invasion of personal privacy. The opinion does not report a court ruling.

Why did the lack of verification matter?

The AG said the district could not verify or substantiate the email's allegations and that this "may mean that the assertions are false or embellished." She considered that alongside the email's anonymity and unsolicited nature when weighing privacy.

Did the opinion disregard public interest in school officials' conduct?

No. It recognized a significant public interest in public officials' conduct. Footnote 17 also recognizes heightened interest in school officials' conduct during school hours, school events, or on school property, particularly where students may be affected. The AG said few of those heightened-interest factors appeared present on the facts she had.

Would a signed or verified complaint necessarily be released?

The opinion does not decide that hypothetical. It assesses the particular anonymous, unsolicited, unverified email reviewed by the AG. A custodian would have to apply the privacy test to a different record's facts.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), (b)(13), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); Ops. Att'y Gen. 2018-084, 2002-320.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKAN SAS
ATTORN EY GE N ERAL
LES LI E RUT LEDGE

Opinion No. 2018-104

September 5, 2018

Rebecca Worsham, Esq.
Mixon & Worsham PLC
505 Union
P.O. Box 1442
Jonesboro, AR 72403

Dear Ms. Worsham:

Yo hav e1e·quested1 ny-opin+on-regarding-the--Arkansas- Freedom- o-f- In-form-at-i-e n- - - A:ct ("FOIA"). Your request,- which is made as the custodian's attorney, is made 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 states that your client, the Marked Tree School District, received a request for records under the FOIA regarding a former school district employee. Among the records sought is an anonymous email sent to the former employee and the district superintendent.
Though the record contains "information of a personal and intimate nature[,]" the record's custodian classified this email as a personnel record that is subject to disclosure under the FOIA. You ask whether this 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 record, it is my opinion that the record was properly classified as a personnel record. However, given the highly sensitive and personal nature of the information, it is less clear that the record should be disclosed. I will

323 CEN Trn STREET. SU ITE 200 · LI TTLE ROCK. A llKl\NSAS 7220 I TELEP H ONE (501) 682-200 7 · FAX (50 I ) 682-8084 ARKAN SAS AG. GO V

Rebecca Worsham, Esq.
Mixon & Worsham PLC
Opinion No. 2018-104
Page 2

set out all the definitions and standards and then apply them to the record 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 Marked Tree School District, 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

As I understand it, an anonymous person emailed the unsolicited document to the former employee and the district superintendent complaining about the former employee's conduct. Accordingly, the attached document reflects the performance or lack of performance of an official function of the former employee. Therefore, in my opinion, the document 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 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 information about reclassifications, promotions, or demotions; transfer records; health and life

Rebecca Worsham, Esq.
Mixon & Worsham PLC
Opinion No. 2018-104
Page 3

4 be divided into two mutually exclusive groups: "personnel records" 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.

As stated above, it appears from your request for my opinion that the records custodian has determined that the record at issue is the former employee's personnel record. I agree that the record is properly classified as a personnel record. I will therefore limit my discussion in this opinion to the test for disclosure relating to that type of record. 6

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 & Robe1t 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)(I): "Notwithstanding subdivision (b )(I 2) 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 Regarding employee-evaluation or job-performance records, the Arkansas Supreme Court has adopted this office's view that those terms refer to any records that (1) were created by or at the behest of the employer, (2) are used to evaluate the employee, and (3) detail the employee's performance or lack of performance on the job. See Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d

387. Employee-evaluation records 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). See Ark. Code Ann. § 25-19-105( c )(1 ); Op. Att'y Gen. 2008-065.

Rebecca Worsham, Esq.
Mixon & Worsham PLC
Opinion No. 2018-104
Page 4

The FOIA does not define the term "personnel records." 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. 7 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 unless such disclosure "would constitute a clearly unwarranted invasion of personal privacy." 8

Again, the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court, in Young v. Rice 9 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. 10

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. 11 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 12 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. 13

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8
Ark. Code Ann. § 25-19-105(b )( 12).
9
308 Ark. 593, 826 S. W.2d 252 (1992).
10
Watkins, et al., at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id., 826 S.W.2d at 255.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Rebecca Worsham, Esq.
Mixon & Worsham PLC
Opinion No. 2018-104
Page 5

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. 14 Additionally, whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact to be made by the custodian in the first instance. 15

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 ~umbers (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);
• 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).

III. Application.

In this instance, I agree with the custodian's decision that the attached record is a personnel record of the former employee. However, under the test articulated in

14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I.

Rebecca Worsham, Esq.
Mixon & Worsham PLC
Opinion No. 2018-104
Page 6

Young , it is less clear that disclosure does not manifest a "clearly unwarranted invasion of personal privacy."

The Arkansas Supreme Court has held that a substantial privacy interest exists if a record reveals information that: 1) shows the intimate details of a person's life; 2) might embarrass the person, disgrace them, or get them fired; or 3) might subject the person to harassment or loss of friends. 16 While under the Young balancing test described above the public has a significant interest in knowing about the conduct of its public officials, the public's interest in knowing the details of this particular record about a former employee may not triumph in this instance. 17

Under the circumstances you have described, the email was sent anonymously and was unsolicited. Furthermore, you state that the school district "was unable to verify or substantiate the allegations made in the record." That inability to verify or substantiate the allegations may mean that the assertions are false or embellished. Based on the face of the record and under these circumstances, a reviewing court likely could conclude that the bal~ncing test in this instance, even with the thumb on the scale favoring disclosure, weighs in favor of finding a "substantial invasion of personal privacy."

Sincerely,

~~
LESLIER~T~
Attorney General

16
Stilley, supra note 13, 332 Ark. at 311, 965 S.W.2d at 127 (citing Brown v. FBI, 658 F.2d 71 (2d Cir. 1981 )).

17
I note that this office has consistently taken the position that the public generally has a heightened interest in records reflecting the conduct of public-school officials during school hours, during school events, and/or on school property. See, e.g., Ops. Att'y Gen. 2018-084, 2002-320 (and opinions cited therein). This interest is especially heightened in situations where students are or may be affected. See Op. Att'y Gen. 2002-320. However, in this case, and based on the facts presented to me, few of those factors appear to be present for that heightened public interest to overcome the substantial invasion of personal privacy under Ark. Code Ann. § 25-19- 105(b)( 12).