If a university employee resigned, can his personnel and employee-evaluation records still be released under the Arkansas FOIA?

Plain-English summary

The University of Arkansas, Fort Smith (UAFS) received a FOIA request for documents that formed the basis of UAFS's decision to place Justin Bailey on paid administrative leave and to end his employment. Bailey objected to release of three documents: a motor-vehicle report, a letter of termination, and a text message to his former supervisor. He argued that the documents contained personal information that should not be released to the public. He also asserted that he had resigned his position rather than being terminated.

Attorney General Leslie Rutledge could not opine definitively. She had not been provided the actual records, and the dispute involved a factual question (did Bailey resign, or was he terminated?) that the AG cannot decide. She set out the legal framework, flagged the most important consequence: if Bailey resigned, then the four-part test for releasing employee-evaluation records cannot be met at the level-of-discipline threshold, because suspension or termination is a prerequisite. The custodian has to resolve the factual dispute and apply the right test.

Currency note

This opinion was issued in 2019. 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.

Historical context

The factual dispute (as of 2019)

UAFS had decided to release records that formed the basis of "the decision to place [Bailey] on paid administrative leave ... and led to the decision by either party to end [his] employment with the University." That phrasing is itself ambiguous about whether the separation was a termination or a resignation. Bailey asserted resignation. The custodian's exact framing was unclear.

Why the resignation/termination distinction matters

If the records are personnel records under § 25-19-105(b)(12), the Young v. Rice balancing test applies and the records would generally be releasable unless the privacy interest outweighs the disclosure interest.

If the records are employee-evaluation records under § 25-19-105(c)(1), the four-part Thomas v. Hall test applies:

1. The employee was suspended or terminated.
2. Final administrative resolution.
3. The records formed the basis for the discipline.
4. Compelling public interest.

Suspension or termination is a threshold requirement. If Bailey actually resigned, the records cannot be released as evaluation records, period. The level-of-discipline element is unmet.

Why the AG could not decide

The AG cannot act as a fact-finder. Whether Bailey resigned or was terminated is a fact question. The AG noted that "if you resigned, then the four-part test for disclosure set out above would not be met because suspension or termination is a threshold requirement for the release of evaluation records." The AG could not resolve the dispute over whether the separation was effective as a termination or a resignation.

What the custodian had to do

The custodian had to:

1. Determine whether each record was a personnel record or an evaluation record (a fact question turning on whether the record was created to evaluate Bailey).
2. If a personnel record, apply the Young v. Rice balancing test, including standard mandatory redactions.
3. If an evaluation record, apply the four-part Thomas v. Hall test, starting with the level-of-discipline question. If Bailey resigned, the records could not be released as evaluation records.

A note on the motor-vehicle report

A motor-vehicle report obtained as part of an internal investigation typically is an evaluation record under Thomas v. Hall's capture of "records generated while investigating allegations of employee misconduct." If Bailey resigned, an MVR collected during the investigation could not be released. If he was terminated, the four-part test could potentially be met depending on facts.

Common questions

Q: If I resigned, can my employer still release my employee-evaluation records under FOIA?
A: Per the AG's framework, no. Suspension or termination is a threshold requirement under Thomas v. Hall. A clean resignation defeats release of evaluation records.

Q: What if my employer claims it was a termination but I claim it was a resignation?
A: That is a factual dispute. The records custodian decides in the first instance, but a court can ultimately resolve it. The AG cannot.

Q: Does this rule apply to personnel records too?
A: No. Personnel records use the Young v. Rice balancing test, which does not require any particular level of discipline. So even a resigning employee's pure personnel records can be released, subject to the privacy balancing.

Q: What if my "termination" was retaliatory and got reversed in litigation?
A: That is a different fact question that may bear on whether there was a "final administrative resolution." A reversal could mean no final resolution exists, defeating the second prong of the four-part test.

Background and statutory framework

This opinion applies the same FOIA personnel-records and evaluation-records framework as Ops. Att'y Gen. 2019-028, 2019-030, and 2019-031. The distinguishing feature is the level-of-discipline issue: when a separation may have been a resignation, the four-part test for releasing evaluation records fails at the threshold.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer redaction)
• 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 exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), Ark. Supreme Court, balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), Ark. Supreme Court, burden on resisting party

Related AG opinions:

• Op. Att'y Gen. 2019-028, 2019-030, 2019-031 (companion FOIA personnel/evaluation opinions)
• Op. Att'y Gen. 2008-065 (four-part test articulated)
• Op. Att'y Gen. 2010-044 (presumption of public-record status)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-019
March 4, 2019

Justin Bailey
c/o Rachel Putman, Int. Dir. of Public Information
University of Arkansas - Fort Smith
Fullerton Administration Building 219
5210 Grand Ave., P.O. Box 3649
Fort Smith, AR 72913

Dear Mr. Bailey:

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).

Your correspondence indicates that the University of Arkansas, Fort Smith ("UAFS") has received a FOIA request for "copies of all written or electronic documents or correspondence that formed the basis of the decision to place [you] on paid administrative leave ... and led to the decision by either party to end [your] employment with the University." You object to the release of a motor-vehicle report, a letter of termination, and a text message to your former supervisor on the grounds that these documents contain personal information that should not be released to the public. You ask whether the decision to release these documents is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that the custodian has deemed responsive to the instant FOIA request, I cannot opine on whether any specific document must or must not be disclosed or whether any specific items of information should be redacted from otherwise releasable documents. Additionally, it appears that a review of the custodian's decision in this case may involve factual considerations, and I am not empowered to act as a finder of fact in the issuance of Attorney General opinions.

[Standard FOIA framework: personnel records under § 25-19-105(b)(12), employee-evaluation records under § 25-19-105(c)(1), the Young v. Rice balancing test, the four-part Thomas v. Hall evaluation-records test, and the mandatory redactions list.]

III. Application.

Because I have not seen any records that the custodian has determined are responsive to the request, I cannot definitively opine on 1) whether the custodian has properly classified the records, the release of which you are objecting to, or 2) whether they are subject to release under the applicable tests for disclosure. I see in the FOIA request notice the custodian provided you that it appears that the custodian has classified the records at issue as your personnel records. If that classification is correct, then the balancing test discussed above would require the records' disclosure unless such disclosure would constitute a clearly unwarranted invasion of personal privacy.

I also see in your request for my opinion that you have asserted that you resigned your position. That assertion, if true, would be relevant to the release of any records properly classified as evaluation records. If you resigned, then the four-part test for disclosure set out above would not be met because suspension or termination is a threshold requirement for the release of evaluation records. I must emphasize, however, that I cannot act as a fact-finder in the issuance of opinions; and I, therefore, cannot resolve any factual dispute surrounding the classification and release of these records.

In sum, I cannot definitively opine as to the custodian's decisions regarding either the records' classification or their disclosure. It is the responsibility of the custodian in the first instance to properly classify the responsive records based on the above definitions and all of the surrounding facts, conduct the analysis, and then apply the appropriate test(s) to determine whether the records must be disclosed.

Sincerely,

Leslie Rutledge
Attorney General