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 and explained that Bailey's asserted resignation, if true, would affect any records properly classified as employee evaluation records. The custodian appeared to classify the records as personnel records, but the AG could not verify that classification without seeing them.

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 opinion lists four conditions for release:

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 for releasing properly classified evaluation records. The AG said Bailey's claimed resignation, if true, would prevent that four-part test from being met.

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 factual disputes about classification or release.

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 statutory conditions for disclosure. Bailey's asserted resignation would matter to this test if true.

A note on the motor-vehicle report

Bailey objected to release of a motor-vehicle report, but the AG had not seen it. She did not classify it or decide whether it could be released. The custodian must first determine which FOIA category applies to that particular record.

Common questions

Q: If I resigned, can my employer still release my employee-evaluation records under FOIA? A: The AG said a resignation, if true, would prevent release of records properly classified as employee evaluation records under the four-part test. She did not determine whether Bailey had resigned or whether any particular document was an evaluation record.

Q: What if my employer claims it was a termination but I claim it was a resignation? A: The AG cannot resolve that factual dispute in an opinion. The custodian must determine the relevant facts and apply the proper disclosure test in the first instance.

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 the custodian classified the records as personnel records? A: The opinion says the personnel-records privacy test would apply if that classification were correct. The AG could not verify the classification without the records.

Background and statutory framework

The opinion separates the test for personnel records from the test for employee evaluation records. It says a claimed resignation affects only records properly classified as evaluation records; the custodian must classify each responsive record before deciding whether to release it.

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. 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

STATE OF ARKAN SAS
ATTORN EY GENERAL
LES LI E RUTLED GE

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. 0. 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) (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 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

323 CENTUl STREET. SU ITE 200 · LITTL E ROCK. ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

Justin Bailey
Opinion No. 2019-019
Page 2

responsive to the instant FOIA request, I cannot opine on whether any specific documef}t 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. Accordingly, I can only set out the legal standards the custodian must apply to determine whether certain employee- related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian to properly classify the responsive records in the first instance and then apply the applicable test for disclosure.

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 UAFS, which is a public entity subject to the FOIA. Secondly, 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

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 2 Based on the limited information before me, the custodian appears to have determined that they are public records. However, not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element-that is, whether any exceptions preclude the records' disclosure.

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

2
See Op. Att'y Gen. 2010-044.

Justin Bailey
Opinion No. 2019-019
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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 be divided into two mutually exclusive groups: "personnel records" 4 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.
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. 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

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 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 Acr 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)(l): "Notwithstanding subdivision (b)(l2) 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 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

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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 8 personal privacy," the Arkansas Supreme Court 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 12 circumstances, his privacy interests outweigh the public's interests.

The fact that the subject of records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 13 And whether any particular personnel record's release would

7
Ark. Code Ann.§ 25-19-105(b)(12).

8
See Youngv. Rice, 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
Stilleyv. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

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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)(l3));

• 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)(l0));
• Driver's license number and photocopy of driver's license (Op. Att'y Gen.
  2017-125, 2013-090);
• 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 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) and that detail the employee's performance or lack of performance

14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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15 on 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: (I) 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 agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public

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)( 1); Op. Att'y Gen. 2008-065.

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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

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.

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.").

°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
2

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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,

~:::;:::>- ~. //?17
LESLIE RUTLEDGE
Attorney General