When the custodian asks the AG to decide whether interview statements are an employee's personnel record or another employee's evaluation record, can the AG make that classification?

Plain-English summary

Sean Nadji, the City of Little Rock's FOIA Coordinator, asked the AG three questions about an active internal harassment investigation:

1. The complainant in the investigation had submitted a FOIA request for "the statements of an interviewee" taken during the still-open misconduct case. The custodian withheld the statements. Was that withholding consistent with FOIA?
2. Should the statements be maintained in the complainant's personnel file or the interviewee's file?
3. Do documents created during an agency investigation become subject to disclosure after the investigation is closed?

Attorney General Leslie Rutledge could not answer any of them as a formal AG opinion. Question 1 required AG review under § 25-19-105(c)(3)(B)(i), which is contingent on the custodian first classifying a record as either a personnel or an employee-evaluation record. Nadji's letter acknowledged uncertainty: he asked the AG to determine whether the statements were the complainant's personnel records or the interviewee's evaluation records. The AG cannot make that threshold classification for the custodian. Questions 2 and 3 were outside her FOIA-review authority and outside her general statutory opinion authority under § 25-16-706 (which limits opinions to specific officials and county election commissions). Nadji had to direct those questions to his city attorney.

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 procedural mismatch (as of 2019)

The complainant in an internal harassment investigation requested the statements of an interviewee. The custodian asked whether the statements were the complainant's personnel records or the evaluation records of another employee. The AG had not seen the statements and could not make that classification for the custodian.

The custodian's framing of the question to the AG indicated indecision: "the witness testimony 'may be considered a component of evaluation records that ... have not resulted in the suspension or termination of said employee.'" That is a hedge, not a classification. The AG could not run her review without a definitive classification.

Why the AG cannot answer ancillary policy questions

Section 25-19-105(c)(3)(B)(i) authorizes the AG to opine on a custodian's specific release decision regarding personnel or evaluation records. It does not authorize the AG to opine on:

• File-organization questions (which file should hold which document).
• Post-investigation disclosure timing.
• Other general FOIA-policy questions.

Nadji's general AG-opinion authority under § 25-16-706 is also limited. That provision authorizes the AG to issue opinions on requests from specific state officials and county election commissioners. A municipal FOIA coordinator is not on the list. The AG had to refer Nadji to his city attorney.

What the custodian had to decide

The AG said the custodian must classify responsive records first and then apply the disclosure test for the chosen category. She did not decide whether these statements were personnel records, evaluation records, or releasable.

After the investigation closes

The custodian asked whether documents created during an investigation become subject to disclosure after it closes. The AG declined to answer and directed that question to the city attorney.

Common questions

Q: When can a complainant in an internal investigation see witness statements about themselves? A: The AG did not decide whether the complainant could obtain these statements. She said the custodian must classify them and apply the appropriate disclosure test.

Q: Can the AG decide whether documents are personnel records or evaluation records? A: No. That threshold classification is the custodian's decision. The AG reviews the custodian's release decision after classification, not before.

Q: Where should witness statements live in a city's records system? A: That is a records-management policy question, not a FOIA-classification question. The AG's FOIA review does not extend to records-management policy. The custodian and the city attorney decide.

Q: Are documents released automatically once an investigation closes? A: The AG expressly declined that question and directed the coordinator to his city attorney. The opinion supplies general FOIA standards but does not decide release after closure.

Q: Why doesn't the AG just answer general policy questions about records management? A: Because the AG's authority to issue opinions is limited by statute. Under § 25-19-105(c)(3)(B)(i), AG review is limited to specific custodian decisions. Under § 25-16-706, general AG opinions are limited to specific state officials and county election commissioners. A municipal FOIA coordinator is not on either list.

Background and statutory framework

This opinion combines several procedural rules:

• § 25-19-105(c)(3)(A): custodian must determine within 24 hours whether records are exempt.
• § 25-19-105(c)(3)(B)(i): AG review is contingent on custodian classification and release decision.
• § 25-16-706: general AG opinion authority is limited to specific officials.

The AG said the custodian must first classify the record and apply the appropriate test. She did not review the withholding decision because that threshold step appeared incomplete.

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) (24-hour custodian determination)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-16-706 (general AG opinion authority)

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

Related AG opinions:

• Op. Att'y Gen. 2016-073, 2016-054 (AG cannot act as factfinder)

Source

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

Original opinion text

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STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2019-026

April 1, 2019

Sean Nadji, FOIA Coordinator
City of Little Rock, Human Resources
500 W. Markham, Suite l 30W
Little Rock, AR 72201

Dear Mr. N adj i:

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 the City of Little Rock has received a FOIA request from a City employee for "the statements of an interviewee ... that were taken during a still open employee misconduct case." According to your letter, the requesting employee is the complainant ("Complainant") in an ongoing internal harassment investigation. The Complainant contends that the interviewee's statements made to the investigator are "part of [the Complainant's] personal [sic] file" and as such are accessible by the Complainant.

You further state that the witness testimony "may be considered a component of evaluation records that . . . have not resulted in the suspension or termination of said employee" (emphasis added). The custodian of records has determined that the Complainant is not entitled to receive a copy of these statements during an active internal investigation. Your cover letter also expresses uncertainty as to whether the statements at issue should be maintained in the Complainant's personnel file or the file of the interviewee. You seek clarity on the above- referenced issues and also ask whether documents created in an agency investigation become subject to disclosure after the investigation is closed.

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Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
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. 1 That duty is contingent upon the custodian having first classified the record at issue as either a personnel or an employee-evaluation record. Based on your request for my opinion, it appears that the custodian has not made this threshold determination in this instance, but is instead asking me to make that determination. This is not a decision I am authorized to consider or make for the custodian pursuant to Ark. Code Ann.§ 25-19-105(c)(3)(B)(i). Accordingly, my statutory review under the FOIA has not been triggered. I will nevertheless set out the legal standards custodians must apply to determine whether certain employee-related records must be disclosed. As explained below, these types of records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify any responsive records and then apply the applicable test for disclosure.

Your other two questions-in whose personnel file the statements at issue should be maintained, and whether documents created during an agency investigation become subject to disclosure after the investigation is closed-should be directed to your city attorney for counsel. Answering questions of this nature are beyond the scope of my authority under the FOIA.

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 city of Little Rock, 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

1
Ark. Code Ann.§ 25-19-105(c)(3)(B)(i).

Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
Page 3

out by a public official or employee .... " 2 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 3 If a document is a public record, it must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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.

2
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
3
See Op. Att'y Gen. 2010-044.
4
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). 5 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." 6 Ark. Code Ann. § 25-19-105(c)(l): "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."

Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
Page 4

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. 7 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." 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court has provided some guidance. 9 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 10 in favor of disclosure.

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. 11 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 12 interest in disclosure. Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8
Ark. Code Ann.§ 25-19-105(b)(l2).

9
See Young v. Rice, 308 Ark. 593, 826 S. W.2d 252 ( 1992).
10
Watkins, et al., at 208.

11
Young, 308 Ark. at 598, 826 S.W.2d at 255.

12
Id., 826 S.W.2d at 255.

Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
Page 5

circumstances, his privacy interests outweigh the public's interests. 13 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. 14

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15

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)(l0));
• Driver's license number and photocopy of driver's license (Ops. 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).

13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Sean Nadji, FOIA Coordinator
Opinion No. 20 I 9-026
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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) that detail the employee's performance or lack of performance on the job. 16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 17

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). 18

As for the final prong, the FOIA does not define the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[l]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

16
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.

17
Thomas, 2012 Ark. 66, at 9-10, 399 S. W.3d at 392-93.
18
Ark. Code Ann.§ 25-19-105(c)(I); Op. Att'y Gen. 2008-065.

Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
Page 7

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 trust should be sufficient to satisfy the "compelling public interest" requirement. 19

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, 20 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. 21

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. Based on your request for my opinion in this matter, it is not apparent that the custodian has made this threshold decision. 22 Instead, the request evinces equivocation and indecision by the custodian as to whether the record at issue, which was not provided for my review, is the personnel record of the Complainant or the evaluation record of the employee who is the subject of the internal investigation.

19
Watkins, et al., at 238-39 (footnotes omitted).

20
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").

21
CJ Op. Att'y Gen. 96-168; Watkins, et al., at 223.
22
See Ark. Code Ann. § 25-19-105(c)(3)(A) ("Upon receiving a request for the examination or copying of personnel or evaluation records, the custodian of the records shall determine within twenty four [sic] (24) hours of the receipt of the request whether the records are exempt from disclosure ... ") (emphasis added).

Sean Nadji, FOIA Coordinator
Opinion No. 2019-026
Page 8

I cannot act as a factfinder in issuing opinions. 23 Nor is this office authorized by the FOIA to make threshold decisions for the custodian. My statutory review under the FOIA is to state whether or not the custodian's decisions are consistent with the FOIA. Because the custodian in this instance does not appear to have made the requisite decisions with respect to the record at issue, based upon the opinion request before me, my statutory mandate under section 25-19- 105( c )(3)(B)(i) has not been triggered. I am thus unable to render an opinion in this instance.

Finally, your other two questions-that is, in whose personnel file the statements at issue should be maintained, and whether documents created during an agency investigation become subject to disclosure after the investigation is closed- should be directed to your city attorney for counsel. Answering questions of this 24 general nature are beyond the scope of my authority under the FOIA.

23
See, e.g., Ops. Att'y Gen. 2019-023, 2016-073, 2016-054.
24
Neither am I authorized to opine on these questions under my general statutory mandate to issue opinions upon request. See Ark. Code Ann. § 25-16-706 (Rep I. 2014 ). That authority is limited to opinion requests from specific state officials or county boards of election commissioners. Id. at § 25-16-706(a)-(b ).