When the records custodian is unsure whether a UAMS research-misconduct report is a personnel or evaluation record, can the AG opine on whether the FOIA release is proper?

Plain-English summary

The University of Arkansas for Medical Sciences (UAMS) received a FOIA request for "the final report from the UAMS Office of Research Compliance as delivered to Fusun Kilic, formerly a UAMS professor, ... on Oct. 2, 2018." The records custodian determined the report was subject to release. Dr. Kilic, the subject of the report, objected on three grounds: that such reports are "strictly confidential under UAMS and federal law related to research misconduct"; that release would be an unwarranted invasion of privacy; and that she was never disciplined, suspended, or terminated, and resigned of her own volition.

Attorney General Leslie Rutledge declined to issue a substantive opinion. Her statutory review under § 25-19-105(c)(3)(B)(i) is contingent on the custodian first classifying the record as either a personnel record or an employee-evaluation record. UAMS's custodian had sent mixed signals: the email forwarding the FOIA request to Dr. Kilic stated that "[u]nder certain circumstances, employees have the right to challenge the release of records under the FOIA by requesting an opinion from the Arkansas Attorney General. I do not believe that this type of report requires providing you such notice but am doing so out of an abundance of caution." The AG said the notice suggested a personnel or evaluation classification, while the custodian's words suggested the opposite. She could not resolve that ambiguity or decide whether the report should be released.

The AG also flagged in a footnote that whether a record is exempt under federal law is outside her FOIA review and should be addressed by the custodian, perhaps with input from counsel.

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

Why this is a "threshold" case (as of 2019)

Section 25-19-105(c)(3)(A) requires the custodian, on receiving a request for personnel or evaluation records, to determine within 24 hours whether the records are exempt from disclosure. Section 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject the right to seek an AG opinion on whether the custodian's release decision is consistent with FOIA. The AG said her review required a custodian decision that the record was a personnel or evaluation record and a determination under the applicable disclosure test.

UAMS's custodian sent Kilic a notice but said she did not believe "this type of report requires providing you such notice." The AG found that combination substantially ambiguous about the custodian's classification of the report.

What Kilic argued

Federal confidentiality. Kilic said she had been told the report was confidential under federal law. Footnote 22 says a federal-law exemption question lies outside this AG review and should be addressed by the custodian, perhaps with counsel.

Unwarranted invasion of privacy. The AG described the Young v. Rice test for personnel records but did not decide whether this report qualified or apply that test to it.

Resignation and no discipline. Kilic asserted that she resigned voluntarily and had not been disciplined, suspended, or terminated. The AG did not apply the employee evaluation test to the report or determine the effect of those assertions.

What the custodian needed to do

The custodian must classify the record and apply the appropriate disclosure test. The opinion describes these categories:

1. Personnel record. The custodian applies the privacy balancing test and any required redactions.
2. Employee-evaluation record. The custodian applies the four conditions in § 25-19-105(c)(1). The AG did not decide whether the report fits this category.
3. Neither category. The AG's opinion procedure under § 25-19-105(c)(3)(B)(i) is not triggered by a record outside both categories.

The email left the custodian's position unclear, so the AG declined to issue the requested opinion.

Common questions

Q: Why couldn't the AG just opine on whether the report should be released? A: The AG said her statutory review requires a custodian decision that the record is a personnel or employee evaluation record and a decision under the applicable release test. The custodian's notice left the first decision unclear.

Q: Are research-misconduct reports automatically exempt under federal law? A: The opinion does not decide that question. Footnote 22 says a federal-law exemption must be addressed by the custodian, perhaps with advice from counsel.

Q: If Kilic resigned, can the report be released as an evaluation record? A: The AG did not decide whether this report was an evaluation record, whether Kilic's account of her departure was correct, or whether the report could be released. She listed the general conditions for releasing evaluation records.

Q: What if the custodian comes back with a clean classification later? A: The AG said her review is triggered when the custodian determines that a record is a personnel or employee evaluation record and decides whether the applicable test calls for disclosure or withholding.

Background and statutory framework

This opinion turns on a procedural threshold: the AG could not tell whether the custodian had classified the report as a personnel or employee evaluation record. She described the general FOIA standards but declined to decide the release question.

The opinion does not analyze whether federal law protects this report. It directs that question to the custodian, perhaps with counsel.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(A) (custodian must determine exemption status within 24 hours)
• 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:

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LES LI E R_UTLE DG E

Opinion No. 2019-023

March 19, 2019

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Office of Communications & Marketing
University of Arkansas for Medical Sciences
4301 W. Markham, #890
Little Rock, AR 72205-7199

Dear Dr. Kilic:

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 for Medical Sciences ("UAMS") has received a request under the FOIA for "the final report from the UAMS Office of Research Compliance as delivered to Fusun Kilic, formerly a UAMS professor, ... on Oct. 2, 2018." The records custodian has determined that the report is subject to release under the FOIA. You object to release of the report alleging that you were told that such reports are "strictly confidential under UAMS and federal law related to research misconduct." You further cite an "unwarranted invasion of privacy that would subject [you] and your family members to embarrassment and threaten [your] future employments." You go on to state that you were never disciplined, suspended, or terminated from UAMS; you also state that your resignation was not the result of any negotiations with UAMS, but done on your own volition. You ask for an opinion on whether the custodian's decision to release this report is consistent with the FOIA.

323 CENTER STREET. SU ITE 200 · LITTLE RO CK. ARKANSAS 7220 I TELEP H ONE (50 1) 682-2007 ·FAX (50 1) 682-8084 AJl..KAN SASAG.GOV

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 2

RESPONSE

My statutory duty is to state whether the custodian's decision regarding the release of personnel or employee-evaluation records is consistent with the FOIA. That duty is contingent upon the custodian having first determined that the record at issue is, in fact, either a personnel or an employee-evaluation record. It is not apparent in this instance that the custodian has made this threshold determination. Accordingly, my statutory review under the FOIA has not been triggered.

I will nevertheless set out all of the definitions and standards as they relate, generally, to personnel and employee-evaluation records.

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 UAMS, 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 .... " 1 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 2 If a document is a public record, it must be disclosed unless some specific exception provides otherwise.

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

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

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally considered employee records or 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." 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

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)(l2): "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.

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 4

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 has provided some guidance. 8 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 in 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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 13

7
Ark. Code Ann. § 25-19-105(b )( l 2)(Supp. 2017).
8
Young v. 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
Stilley v. 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.

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 5

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 )(1 O));
• 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" (referred to herein as "employee-evaluation 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) that detail the

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

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 6

employee's performance or lack of performance on the job. 15 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 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)(l); Op. Att'y Gen. 2008-065.

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 7

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.

My duty under the FOIA to issue an opinion is only triggered if, as a threshold matter, a custodian has decided that the record(s) in question is either a personnel or an employee-evaluation record based on the above definitions. It is not apparent in this case that the custodian has made this threshold decision.

In an email sent to you on March 12, 2019, the custodian of records for UAMS wrote the following (emphasis added):

Under certain circumstances, employees have the right to challenge the release of records under the FOIA by requesting an opinion from the Arkansas Attorney General. I do not believe that this type of report requires providing you such notice but am doing so out of an abundance of caution.

The quoted excerpt, at best, creates substantial ambiguity as to whether the custodian believes the record at issue falls within the scope of an Attorney General opinion. On the one hand, providing you notice of the FOIA request, standing

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

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Opinion No. 2019-023
Page 8

alone, seems to suggest that the custodian has determined that the report is either a 21 personnel or an employee-evaluation record. On the other hand, in the emphasized sentence, the custodian expressly states her view that the record at issue is not the "type of report" that requires providing notice. This statement indicates that the custodian does not believe that the record constitutes either your personnel or your employee-evaluation record.

I cannot act as a factfinder in issuing opinions. I, therefore, cannot resolve the custodian's apparent ambivalence in this case on the threshold question of whether the record qualifies as the type of record that falls within the scope of my review.

My review under the FOIA is only triggered if a custodian has made a determination that ( 1) a record is either a personnel or employee-evaluation record, and (2) the applicable test requires it to either be disclosed or withheld. Because of the fundamental ambiguity as to the custodian's position regarding the record at issue in this case, I am unable to render an opinion, pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i), on whether the custodian's decision is consistent with the FOIA. 22

Sincerely,

~ ~
LESLIE RU;Lt~
Attorney General

21
See Ark. Code Ann . § 25-19-105(c)(3)(A).
22
One of your stated objections to the report's release is that you were told that the report is "strictly confidential under ... federal law .... " Whether a particular record is exempt from disclosure under federal law is a question that is beyond the scope of my review under section 25- 19-105( c)(3)(8)(i). That type of question must be addressed by the custodian, perhaps with input from counsel to whom he or she ordinarily looks for advice .