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

Plain-English summary

Attorney Rebecca Worsham, representing the Marked Tree School District, asked the Attorney General to review a custodian's FOIA decision. The district had received a FOIA request for records related to a former employee. Among them was an anonymous, unsolicited email sent to both the former employee and the district superintendent, containing what Worsham described as "information of a personal and intimate nature." The custodian had classified the email as a personnel record subject to disclosure. Worsham asked whether that decision was consistent with FOIA.

Attorney General Leslie Rutledge agreed with the classification: the email qualified as a personnel record. But the AG departed from the custodian on the disclosure question. The Young v. Rice balancing test, which weighs public interest against privacy with the thumb on the scale toward disclosure, looked to the AG like it tipped against disclosure on these facts. The AG cited Stilley v. McBride for the substantial-privacy-interest factors: a record may carry a substantial privacy interest if it shows intimate details of someone's life, might embarrass or disgrace them or get them fired, or might subject them to harassment or loss of friends.

Three features of the record made the privacy interest unusually strong. The complaint was anonymous, removing any accountability for the accusations. The email was unsolicited, not part of an employer-initiated inquiry. The school district itself "was unable to verify or substantiate the allegations made in the record," meaning the assertions could be false or embellished. The AG noted that the public's normal heightened interest in how school officials behave during school hours and around students did not appear to be present here, blunting the public-interest side of the scale.

The conclusion was deliberately cautious. The AG did not order the record withheld; the office's role under section 25-19-105(c)(3)(B)(i) is to give an opinion on whether the custodian's decision was consistent with FOIA. Here, the AG signaled that a reviewing court likely could conclude the balancing test favored protecting privacy, which is to say the custodian's decision to release was not clearly correct.

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

Arkansas FOIA has three steps for any document request. First, the request must go to a covered entity (it did: Marked Tree School District). Second, the requested record must be a public record under section 25-19-103(7)(A). The AG concluded that the email reflected the performance or lack of performance of the former employee's official functions, so it qualified. Third, no exception can apply.

Two exceptions matter for employment-related records. Section 25-19-105(b)(12) protects "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Section 25-19-105(c)(1) protects employee-evaluation or job-performance records, releasable only when suspension or termination, finality, basis, and compelling public interest all align. The Arkansas Supreme Court in Thomas v. Hall defined the second category as records created by or at the employer's behest to evaluate the employee that detail performance or lack of performance.

Here, the AG agreed with the custodian's classification: an anonymous email sent in by an outsider, about a former employee, was a personnel record, not an evaluation record. Evaluation records are employer-initiated, this email was not.

Personnel records pass the disclosure test only if release would not be a clearly unwarranted invasion of personal privacy. Young v. Rice provides the test. Step one asks whether the information is of a personal or intimate nature giving rise to more than a de minimis privacy interest. If so, step two weighs that privacy interest against the public interest in disclosure, with the scale tipped toward disclosure. Stilley v. McBride lists factors: information showing intimate details, information that might embarrass or disgrace or get someone fired, or information that might cause harassment or loss of friends. The Stilley court drew on Brown v. FBI, 658 F.2d 71 (2d Cir. 1981).

The AG's earlier opinions, including Op. Att'y Gen. 2018-084 and Op. Att'y Gen. 2002-320, recognize a heightened public interest in records reflecting school officials' conduct during school hours, school events, or on school property, especially where students are or may be affected. That heightened-interest doctrine helps disclosure when school-day and student-safety concerns are in the picture. Here, the AG saw little of that on the face of the record.

Why disclosure was questionable on these facts

The privacy side of the balance carried unusual weight. Anonymity strips the accusation of any accountability. The author cannot be tested or examined for bias, motive, or veracity. Releasing an anonymous accusation publicly puts the accused in the worst position: charged but unable to confront the accuser. Add unsolicited (the school district did not invite the complaint or treat it as part of an investigation) and unverifiable (the district admitted it could not substantiate the claims), and the privacy interest reaches well above the de minimis threshold. The AG checked the Stilley factors: this kind of record could embarrass, disgrace, or get the employee fired, and could subject them to harassment.

The public-interest side, normally heightened for school personnel, was diluted because the AG saw few of the factors that drive the heightened interest. There was no apparent connection to school-day conduct, school events, or students. The general public interest in how former school employees behaved was not enough to overcome the substantial privacy interest the AG identified.

The AG was careful not to say the record must be withheld. The office stated only that "a reviewing court likely could conclude" the balancing weighed in favor of finding a substantial invasion of personal privacy. That phrasing is the AG's standard way of telling a custodian: rerun the analysis, and consider redaction or withholding.

Common questions

Did the AG order the school district to withhold the email?

No. The AG renders opinions, not orders. The opinion told the custodian that the decision to disclose was less than clearly consistent with FOIA, and that a court could likely find the privacy interest outweighed the public interest. The custodian and the district's attorney had to make the actual call on what to do next.

What if the email had been sent by a known person rather than anonymously?

A known author would change the privacy calculus. Anonymity is one of the features the AG flagged as making the privacy interest unusually strong. A signed, attributable complaint, even if still unverified, would have less of that "release a smear without accountability" character.

Could the school have withheld the email entirely?

Section 25-19-105(b)(12) lets the custodian withhold a personnel record if release would constitute a clearly unwarranted invasion of personal privacy. The AG's signal here was that on these facts, withholding would be defensible. The custodian could also have considered selective redaction.

Why does it matter that the school district could not substantiate the allegations?

If the underlying facts cannot be verified, the assertions could be false, embellished, or motivated by personal animus. Disclosing unverifiable allegations as if they were a regular personnel record gives them an undeserved imprimatur of legitimacy and amplifies the harm to the subject. The AG treated unverifiability as a feature increasing the privacy weight on the scale.

Would the answer be different if the former employee had been the subject of a misconduct investigation?

Possibly. An employer-initiated misconduct investigation typically generates evaluation records under Thomas v. Hall, with a different test. But evaluation records are still presumptively closed unless the four-factor test in section 25-19-105(c)(1) is met (suspension or termination, finality, basis, compelling public interest). The AG did not address that path here because the email was an outside complaint, not an investigation file.

Citations

Ark. Code Ann. sections 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(2), 25-19-105(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); Brown v. FBI, 658 F.2d 71 (2d Cir. 1981); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Op. Att'y Gen. 2018-084; Op. Att'y Gen. 2002-320.

Source

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

Original opinion text

Opinion No. 2018-104
September 5, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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

Dear Ms. Worsham:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("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 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

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. 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.

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.

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. 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."

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

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;
• 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.

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 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. 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.

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 balancing 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,

LESLIE RUTLEDGE
Attorney General