Can a Little Rock firefighter use Arkansas FOIA to obtain the internal affairs investigation file resulting from his complaint against another employee, plus the Civil Service Commission appeal transcript?

Plain-English summary

A Little Rock Fire Department employee requested an Internal Affairs investigation arising from his complaint against another employee, plus the transcript and exhibits from that employee's Civil Service Commission appeal. The city decided to give him his own statement and submitted documents, withhold the internal investigation file, and release the hearing materials. The Attorney General approved the first two decisions. For the transcript and exhibits, she said, "I lack sufficient information to determine whether your decision to release these records is consistent with the FOIA." She also said their release may be outside her statutory review scope.

The complainant's statement and submitted documents were not solicited by the employer. The AG classified them as personnel records of both the complainant and the subject employee, rather than employer-created evaluation records. Public employees may obtain copies of their own personnel records under Ark. Code Ann. § 25-19-105(c)(2), subject to limited exceptions the AG said were irrelevant here. Releasing those materials to this requester was consistent with FOIA.

The documents the city created or commissioned during its investigation were employee evaluation records. The AG said they could not be released because the employee complained about received discipline short of suspension or termination. That failed the threshold of the four-part evaluation-records release test.

The Civil Service materials required a separate classification the city had not supplied. The AG was "uncertain whether they fall within the scope of my review," which covers personnel and employee evaluation records. If the transcript and exhibits were filed with the circuit court, she said they may be public records without an applicable exemption. If they instead qualified as evaluation records, releasing them was inconsistent with FOIA because there was no final suspension or termination decision by the employer. A later court modification of the Commission's decision could change the analysis, but the AG did not assume that outcome.

Currency note

Issued September 11, 2018. This opinion applies the FOIA to the records and disciplinary status then described to the AG. Check current law, the record classification, and any later court ruling before relying on it.

How the record types affect release

The opinion distinguishes personnel records from employee evaluation records. A personnel record is generally open unless disclosure would be a clearly unwarranted invasion of personal privacy; the employee has a separate right to obtain records about themselves. An evaluation record is one created by or at the employer's behest to evaluate and detail performance. Public release requires suspension or termination, a final administrative resolution, the record's role as a basis for that decision, and a compelling public interest.

The AG warned that a single document involving multiple employees can be a "mixed record." The custodian must classify it separately as to each employee and apply the corresponding release test. A footnote adds that if a record must be disclosed as to one employee but not another, redactions shielding the other employee's identity are required.

The city could not base release of the Civil Service transcript and exhibits merely on its expectation of a future circuit-court judgment. The opinion says a civil-service employee can appeal to circuit court, and documents filed there might have a different FOIA status. It does not find that these particular records were filed with the court or decide their classification.

Common questions

Could the complainant receive the investigation file because he started the complaint?

The AG approved his access to the statement and documents he submitted. She separately found most city-generated investigation records to be evaluation records about the subject employee and upheld withholding them because the requisite suspension or termination had not occurred.

Did the AG rule that the Civil Service transcript was outside her authority?

No. She said the city had not classified the transcript and exhibits, she lacked enough information to decide release, and their release "may be outside the scope" of her review. That leaves scope unresolved.

Would a later circuit-court ruling necessarily open the hearing exhibits?

The AG said a ruling overruling or modifying the Commission decision could make disclosure possible. She did not say it would automatically require release. The record's classification and applicable disclosure test would still matter.

How does a mixed record affect the complainant's access?

A submitted complaint could be a personnel record about the complainant and the employee complained about. The opinion requires the custodian to evaluate the document as to each person. Where disclosure for one would expose protected information about the other, the custodian must redact that protected identity.

Citations

Ark. Code Ann. §§ 14-51-308(e), 25-19-105(c)(1), (c)(2), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Op. Att'y Gen. 2000-267.

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTOR NEY GENERAL
LESLIE RUTLED GE

Opinion No. 2018-109

September 11, 2018

Stacey Witherell, Director
Human Resources Department
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Witherell:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request 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 a Little Rock Fire Department employee has requested, pursuant to the FOIA, "the Internal Affairs investigation resulting from
[his] complaint [filed against another employee], and a copy of the transcript from the [other employee's] Civil Service Commission appeal." You state that the subject of the complaint received a disciplinary action short of suspension or termination following the investigation and that the Civil Service Commission upheld that action. You have decided that the complainant/requester is entitled to "his statement or what documents he submitted," but that the internal affairs documents are not releasable. You report, additionally, that "the Civil Service Commission Appeal Hearing transcript along with any other documents presented as exhibits at the hearing would be releasable." The latter decision appears to be based upon an anticipated circuit court judgment that will change the disciplinary action to a suspension. You have provided a copy of the records of the internal investigation, and you ask for my opinion regarding the complainant's FOIA request.

323 CENTE R STRE ET. SUITE 200 · LITTL E ROC K. ARKANSAS 72201 TE LEPH O N E (5 01) 682-200 7 · FAX (5 01) 682 -8084 A RKANSASAG .GOV

Stacey Witherell, Director
Human Resources Department
Opinion No. 2018-109
Page 2

RESPONSE

My statutory duty is to state whether the custodian's decision regarding the release of certain employee-related records is consistent with the FOIA. In my opinion, you have correctly decided that: 1) the requesting employee is entitled to his statement and the documents he submitted; and 2) the internal investigation records are exempt from disclosure. With regard to the Civil Service Commission "transcript" and "exhibits," I lack sufficient information to determine whether your decision to release these records is consistent with the FOIA. Moreover, their release may be outside the scope of my review under section 25-19- 105( c)(3 )(B )(i). I will add, however, that if these records qualify as employee- evaluation records, then your decision to release them to the requester is inconsistent with the FOIA, in my opinion.

I will set out all the definitions and standards applicable to this matter and 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 are clearly met. The request was made to the City of Little Rock, which is a public entity subject to the FOIA. And it appears clear from the face of the records submitted for my review that they are "public records," which the FOIA defines 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

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. Id. Accord Op. Att'y Gen. 2010-044.

Stacey Witherell, Director
Human Resources Department
Opinion No. 2018-109
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 2 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 3 or "employee evaluation or job performance records." 4 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. 5 A public record must sufficiently relate to an individual employee or former employee to qualify as that

2
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., 201 7).

3
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."

4
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."

5
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Stacey Witherell, Director
Human Resources Depaiiment
Opinion No. 2018-109
Page 4

employee's personnel record. 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 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

6
See Ops. Att'y Gen. 2012-001, 2010-099, 2010-006 (and opinions cited therein).

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.
11
Id., 826 S.W.2d at 255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Stacey Witherell, Director
Human Resources Department
Opinion No. 2018-109
Page 5

invasion of personal pnvacy 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)(10));
• 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

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.

Stacey Witherell, Director
Human Resources Department
Opinion No. 2018-109
Page 6

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 15 the job. 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 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 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

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.

Stacey Witherell, Director
Human Resources Depa1tment
Opinion No. 2018-109
Page 7

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

As a final matter, a records custodian must be aware that some employee-related records can constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record. 21 If a record is a mixed record, the custodian must review the record, classify it as it relates to each individual employee, and apply the appropriate test for disclosure for each employee.

III. Application.

As indicated above, when custodians receive FOIA requests for employment- related records, they must make two initial determinations after considering all the relevant facts and circumstances. The first determination is whether the record

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
See Op. Att'y Gen. 2015-057. Thus, a single document that names or discusses multiple employees can be classified in multiple ways. This can lead to a case where a record that must be disclosed regarding one employee cannot be disclosed regarding another employee. If that happens, redactions to the record shielding the identity of the other employee must be made.

Stacey Witherell, Director
Human Resources Department
Opinion No. 2018-109
Page 8

being requested meets the definition of either a personnel record or an employee- evaluation record, and the second is whether the record should be disclosed after applying the appropriate test for that type of record.

Most of the documents you included with your request were created by, or at the behest of, the employer pursuant to an investigation of an employee's complaint against another employee; this makes those specific documents employee- evaluation records. As employee-evaluation records, they cannot be released unless all four of the elements listed above are met. Because the employee complained about was not suspended or terminated as a result of the complaint and subsequent investigation, the "level of discipline" prong of the test has not been met. Accordingly, in my opinion, those documents cannot be released, and your decision not to release those records is consistent with the FOIA.

As for the statement and other documents submitted by the complaining employee, however, it appears clear from the face of these records that they were not solicited by the employer. Therefore, they are not employee-evaluation records.
22
Rather, they are the personnel records of both the employee complained about and the complaining employee. Because public employees are entitled to copies of their own personnel records 23 (with limited exceptions above that are not relevant here), these records must be disclosed to the requester. In my opinion, your decision in this regard is therefore consistent with the FOIA.

Finally, regarding the Civil Service Commission "transcript" and "exhibits," you have not classified these records, and I am uncertain whether they fall within the scope of my review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which is limited to personnel and employee-evaluation records. I, nevertheless, note that a 24 civil-service employee has a right of appeal to circuit court; and if the 25
"transcript" and "exhibits" you reference are on file with the circuit court, they may constitute public records that are not covered by any exemption.

22
See Op. Att'y Gen. 2018-038, n.24.
23
Ark. Code Ann. § 25-19-105( c)(2) (Supp. 2017) ("Any personnel or evaluation records exempt from disclosure under [the FOIA] shall nonetheless be made available to the person about whom the records are maintained .... "). 24 See Ark. Code Ann.§ 14-51-308(e) (Repl. 2013).
25
See id. at section 14-5 l-308(e)(l)(B)(ii).

Stacey Witherell , Director
Human Resources Department
Opinion No . 2018-109
Page 9

If, by contrast, the transcript and exhibits qualify as employee-evaluation records, I must emphasize that they do not satisfy the four-prong test for release because 26 there was no final suspension or termination decision by the employing entity. If the Commission's decision is overruled or modified at some point by a court, it is possible these records will be subject to disclosure pursuant to that ruling. But short of that, in my opinion, they are not releasable as employee evaluations.

Sincerely,

~ /!<
LESLIE RUTLED~
Attorney General

26
See Op . Att'y Gen. 2000-267 (opining that exhibits- including the transcript of a taped conversation created as part of an internal investigation- submitted to a city's civil service commission during a disciplinary hearing could not be released because there was no final administrative resolution of a suspension or termination) .