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

In September 2018, a Little Rock Fire Department employee filed a FOIA request for two sets of records related to a complaint he had previously filed against another LRFD employee: (1) the Internal Affairs investigation file generated from his complaint, and (2) the transcript and exhibits from the other employee's Civil Service Commission appeal hearing. The other employee had received a disciplinary action short of suspension or termination, the Commission had upheld that action, and a circuit-court appeal was pending that the city expected might convert the discipline into a suspension. Stacey Witherell, the City of Little Rock HR director, decided that the complainant was entitled to his own statement and submissions, that the internal investigation records were not releasable, and that the Civil Service Commission transcript and exhibits would be releasable in light of the anticipated circuit-court ruling. She asked Attorney General Leslie Rutledge to review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG split the answer three ways.

First, the complainant's own statement and the documents he himself submitted are personnel records, not employee-evaluation records, because they were not solicited by the employer. Public employees are always entitled to copies of their own personnel records under § 25-19-105(c)(2), so releasing those records to the complainant was consistent with the FOIA.

Second, the internal investigation file (the materials generated by IA at the city's behest to evaluate the conduct of the employee complained about) is an employee-evaluation record. Under § 25-19-105(c)(1), an employee-evaluation record is releasable only if all four prongs are met: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for the suspension/termination decision, and (4) there is a compelling public interest in disclosure. Because the discipline imposed was below suspension or termination, the very first prong fails. So the IA file is not releasable. The custodian's decision to withhold it was correct.

Third, the Civil Service Commission transcript and exhibits sit in an uncertain space. The AG noted that civil-service employees have a statutory right of appeal to circuit court (Ark. Code Ann. § 14-51-308(e)), and if the transcript and exhibits are on file with the circuit court, they may be public records in the court's file rather than personnel or evaluation records reviewed under § 25-19-105(c)(3)(B)(i) at all. The AG could not tell from the request which they were. But the AG flagged the alternative path: if the transcript and exhibits qualify as employee-evaluation records, they fail the same four-prong test that the IA file failed, and they cannot be released. If a court later modifies the discipline into a suspension, the analysis could change, but as of the request, releasing them as employee-evaluation records would be inconsistent with the FOIA.

The AG also explained the "mixed records" problem. A document that names or discusses multiple employees can simultaneously be one employee's personnel record and another employee's employee-evaluation record. The custodian must classify the same document multiple times, once per affected employee, and apply the right test to each. Where a document must be disclosed for one employee but not for another, the custodian must redact the protected information.

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's FOIA presumes public records are open. Two FOIA exceptions matter most for employment records:

The personnel-records exception (§ 25-19-105(b)(12)) shields personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's two-step balancing test from Young v. Rice governs.

The employee-evaluation exception (§ 25-19-105(c)(1)) covers records (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that detail the employee's performance or lack of performance on the job. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines the category. It includes records generated while investigating allegations of employee misconduct that detail incidents giving rise to the allegation. Employee-evaluation records are released only after the four-prong test is satisfied: suspension or termination, finality, basis, and compelling public interest.

Section 25-19-105(c)(2) gives every public employee an unconditional right to access their own personnel and evaluation records. Section 14-51-308(e) gives a civil-service employee a right of appeal to circuit court from a Civil Service Commission decision.

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.

Common questions

Why does the level of discipline matter?
The four-prong test for releasing employee-evaluation records was designed to balance the public interest in scrutinizing serious disciplinary outcomes against the workplace's interest in honest performance reviews. The legislature drew the line at suspension or termination because those are the consequences serious enough to warrant outside review. Discipline short of suspension or termination keeps the records in the protected category.

The complainant filed the complaint. Doesn't he have a right to see the outcome?
He has a right to his own contributions. The FOIA does not give a complainant a right to the employer's evaluative work product about the subject employee. That is true even where the complaint started the process.

What happens if the circuit court later reclassifies the discipline as a suspension?
Then the level-of-discipline prong could be satisfied, and the analysis would have to be redone. The AG flagged this as a possibility. But the AG opined based on the facts as they existed at the time of the request.

What is a "mixed record"?
A single document that contains information about more than one employee. For example, an investigation summary that names both the complainant and the subject. The custodian must run the FOIA analysis separately for each employee mentioned and redact protected information where the same document hits a different test for different individuals.

Are Civil Service hearing exhibits the same as IA records?
Not necessarily. They could be the same materials introduced at the hearing, in which case they remain employee-evaluation records subject to the four-prong test. They could also be on file with the circuit court as part of an appeal, in which case different rules might apply. The custodian needs to figure out which.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifier exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records four-prong test)
• Ark. Code Ann. § 25-19-105(c)(2) (employee's right of access to own personnel/evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (right to seek AG opinion)
• Ark. Code Ann. § 14-51-308(e) (civil-service employee's right of appeal to circuit court)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)
• Ops. Att'y Gen. 2018-038, 2018-121, 2016-055, 2015-072, 2015-057, 2014-094, 2012-001, 2010-099, 2010-044, 2010-006, 2008-065, 2007-070, 2007-064, 2007-025, 2006-176, 2006-035, 2005-194, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2001-112, 2001-080, 2001-022, 2000-267, 99-147, 98-126, 98-001, 97-368, 96-168, 94-198
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 202-39 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

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.

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 ...."

II. Exceptions to disclosure.

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 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. 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 (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 civil-service employee has a right of appeal to circuit court; and if the "transcript" and "exhibits" you reference are on file with the circuit court, they may constitute public records that are not covered by any exemption.

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 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 Rutledge
Attorney General