Can a city release a former employee's disciplinary records under the Arkansas FOIA when the employee objects?

Plain-English summary

The City of Marianna received a FOIA request for the personnel file of a former employee, Roderick Brown. The records custodian decided to release the file, including two disciplinary records that had been forwarded to the AG by Mayor Jimmy Williams. Mr. Brown objected to the release of the disciplinary records, but he had not given a specific reason for his objection. He invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the subject of personnel or evaluation records seek an AG opinion on whether the custodian's release decision is consistent with FOIA.

Attorney General Leslie Rutledge concluded that the custodian's decision to release the two disciplinary records was consistent with FOIA. The records were "employee evaluation records" under the four-part test set out in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: (1) the records were created at the behest of the employer, (2) to evaluate the employee, (3) detailing the employee's performance or lack of performance, in this case as part of an internal investigation. Once they meet that definition, employee-evaluation records may be released only if four further elements are met, all of which the AG found satisfied: the employee was suspended, there had been a final administrative resolution, the records formed the basis for the discipline, and a compelling public interest existed because the suspension involved violation of rules aimed at protecting public trust.

The AG flagged one specific redaction the custodian had to make. One of the records, a memorandum dated December 11, 2014, contained information about a different employee that on its face appeared to be that employee's job-performance record. The AG had no information about that other employee and could not assess whether the four-part test was satisfied for them. The custodian had to either confirm release was permitted or redact the other employee's name before disclosure.

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.

The Arkansas FOIA gets amended frequently. The personnel- and evaluation-records exceptions at Ark. Code Ann. § 25-19-105(b)(12) and § 25-19-105(c)(1) have been amended at least once since 2019. Anyone making a release decision today should pull the current text of § 25-19-105 and look for newer AG opinions and Arkansas Supreme Court guidance, especially on the "compelling public interest" prong, which courts continue to refine.

Historical context

The factual setup

A former Marianna city employee, Roderick Brown, had two disciplinary records in his personnel file. A FOIA requester asked for the file. The custodian decided to release everything, including the two disciplinary records. Brown objected, did not articulate a specific reason, and asked the AG to weigh in. The AG had been told that the discipline reached the suspension level, had been finally resolved, and had been based on these specific records.

How the FOIA framework applies (as of 2019)

Three threshold elements. Under Arkansas FOIA, a record must be released if (1) the request is to an FOIA-covered entity, (2) the record is a public record, and (3) no exception withholds it. The first two were straightforward: the City of Marianna was a public entity, and the disciplinary records, created during an internal investigation, were "writings ... required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions" under § 25-19-103(7)(A).

Personnel records vs. employee-evaluation records. Items in a personnel file usually fall into one of two categories under FOIA, with different release tests:

• Personnel records (§ 25-19-105(b)(12)): release-by-default unless disclosure would constitute a "clearly unwarranted invasion of personal privacy," judged by the Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test (privacy interest must be more than de minimis; if it is, weighed against the public interest, with the thumb on the disclosure side of the scale).
• Employee-evaluation records (§ 25-19-105(c)(1)): release only if the four-part Thomas v. Hall test is satisfied, suspension or termination, final administrative resolution, basis, and compelling public interest.

Why these were evaluation records. The records were generated during an internal investigation of employee misconduct, and they detailed the incidents that gave rise to the misconduct allegation. Thomas v. Hall squarely treats those as evaluation records.

Applying the four-part test.

1. Suspension or termination. The AG was told the employee had been suspended.
2. Final administrative resolution. The AG was told the suspension had been finally resolved.
3. Basis. The AG was told these specific records formed the basis for the suspension.

4. Compelling public interest. The AG concluded yes. The leading commentators on Arkansas FOIA (Watkins, Peltz-Steele, and Steinbuch) point to three factors: nature of the infraction, existence of a public controversy, and rank of the employee. Two specific Arkansas patterns nudged toward compelling interest:

   • Law-enforcement context. The opinion observed that the employee at issue was a law-enforcement officer. Quoting Op. Att'y Gen. 2014-129 and Watkins/Peltz: "the public has a great interest in the [job] performance of police officers."
   • Rules designed to protect public trust. "[T]he violation of such a rule in itself gives rise to a compelling public interest in disclosure of employee-evaluation records." Ops. Att'y Gen. 2010-055 and 97-400.

The combination meant the four-part test was satisfied.

The redaction the AG flagged

A memorandum dated December 11, 2014, contained references to a different employee in the third paragraph of page 2 and the second paragraph of page 3. On its face, that other employee's information looked like the other employee's job-performance record. The AG had not been provided records or facts about the other employee and could not run the four-part test on them. The custodian had to either independently determine release was permitted or redact the other employee's name before disclosing the memorandum.

What the AG did not address

Brown's objection lacked a specific reason. The AG did not have to decide whether any specific privacy or non-disclosure argument might have changed the result. The opinion notes that the FOIA test is objective: the subject's view of the disclosure is irrelevant to the analysis.

Common questions

Q: What is the four-part test for releasing employee-evaluation records?
A: Per Ark. Code Ann. § 25-19-105(c)(1) and Thomas v. Hall: (1) the employee was suspended or terminated, (2) the discipline was finally resolved administratively, (3) the records formed the basis for the discipline, and (4) a compelling public interest exists in disclosure.

Q: What makes a public interest "compelling"?
A: The leading Arkansas FOIA commentators identify three factors: nature of the infraction (especially involving public-trust violations or gross incompetence), existence of a public controversy, and rank of the employee. The AG also treats violations of public-trust rules as inherently compelling, and treats law-enforcement context as a strong indicator of compelling interest.

Q: Can an employee's own objection block the release?
A: Per the AG, no. The test is objective. The subject of the records may consider the release an invasion of privacy, but that view does not change the analysis.

Q: What if a record about Employee A also names Employee B?
A: The custodian must run the analysis separately for each employee. Information about Employee B that on its face is Employee B's evaluation record cannot be released just because the request is for Employee A's file. The AG flagged exactly this issue with the December 11, 2014 memorandum.

Q: What about other items in the file: contact info, dates of birth, social security numbers?
A: Even when the file is releasable, specific items must be redacted. The opinion catalog of mandatory redactions includes: personal contact information (§ 25-19-105(b)(13)), employee personnel number, marital status and dependent information, dates of birth, social security numbers, medical information, undercover-officer identifying information (§ 25-19-105(b)(10)), driver's license number, insurance coverage, tax/withholding information, payroll deductions, and banking information.

Q: Why does law-enforcement context push toward release?
A: Because police officers carry coercive authority. The Arkansas FOIA literature treats officer conduct as a category in which the public has a "great interest," even when the officer is rank-and-file rather than a high-level commander.

Background and statutory framework

The Arkansas Freedom of Information Act, codified at Ark. Code Ann. § 25-19-101 et seq., creates two related-but-distinct exceptions for items typically found in personnel files:

• Personnel records exception at Ark. Code Ann. § 25-19-105(b)(12): records open to the public "except to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."
• Employee-evaluation exception at Ark. Code Ann. § 25-19-105(c)(1): records open to 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."

The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defined "employee evaluation or job performance records" as 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. The court included records generated during internal misconduct investigations within the definition.

The "clearly unwarranted invasion" balancing test is Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992): assess whether the privacy interest is more than de minimis; if so, balance against the public interest, with the thumb on the disclosure side.

Section 25-19-105(c)(3)(B)(i) (Supp. 2017) gives the custodian, the requester, or the subject of personnel or evaluation records the right to seek an AG opinion on whether the custodian's release decision is consistent with FOIA. The AG's role is narrow: to opine on consistency, not to set policy.

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 for personnel records

Reference:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017)

Related AG opinions:

• Op. Att'y Gen. 2014-129 (police-officer conduct, public interest)
• Op. Att'y Gen. 2010-055 (public-trust violations as compelling interest)
• Op. Att'y Gen. 97-400 (rules aimed at public-trust conduct)
• Op. Att'y Gen. 2014-122 (absence of public controversy)
• Op. Att'y Gen. 2018-125 (objective test, requester identity irrelevant)
• Op. Att'y Gen. 2008-065 (four-part test articulated)

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. 2019-028
April 23, 2019

Roderick Brown
c/o The Honorable Jimmy Williams
Mayor
35 South Poplar Street
Marianna, AR 72360

Dear Mr. Brown:

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.

In conversations with this office, you have indicated that the City of Marianna, your former employer, has received a request under the FOIA for a copy of your personnel file. You state that the records custodian has informed you that the City intends to release your personnel file, including two disciplinary records that were forwarded to my attention by Mayor Williams. You object to the release of these disciplinary records, though you have provided no specific reason for your objection. You ask whether the custodian's decision to release these two records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the custodian's decision to release the two disciplinary records is consistent with the FOIA. As explained below, however, the redaction of another employee's name from one of the records may be necessary under the relevant FOIA exception.

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 Marianna, which is a public entity subject to the FOIA. And the request clearly pertains 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 ...." Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

As I understand it, the disciplinary records in question were created or collected by the City, your former employer, during an internal investigation. The records, therefore, clearly constitute public records under the above definition and must be disclosed unless some specific exception provides otherwise.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly.

Based on the information before me, the employee-evaluation records provision is the relevant exception in this instance. I will therefore limit my discussion to that provision.

Employee-evaluation exception

The FOIA does not define "employee evaluation" records. 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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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

II. Application.

Because the records in question were created at the behest of the employer to evaluate an employee (or in this case, a former employee), they are employee-evaluation records. As explained above, one of the conditions for the release of employee-evaluation records is that the records formed a basis for the decision to suspend or terminate the employee. It is my understanding that there has been a final administrative resolution of a suspension in this case and the employee-records in question formed a basis for the suspension. This leaves the operative question being only whether a compelling public interest exists in the disclosure of the records.

The custodian has determined that there is a compelling public interest in disclosure of these disciplinary records. As noted above, various factors bear on the "compelling public interest" analysis, including the employee's rank in the hierarchy and the existence of a public controversy. But as this office has previously observed, the very fact that the employee at issue is a law-enforcement officer creates a strong public interest in his official conduct: "[T]he public has a great interest in the [job] performance of police officers." Op. Att'y Gen. 2014-129.

Far more pertinent to the analysis in this case, in my opinion, is the fact that the suspension in this instance appears to have resulted from the violation of policies and rules designed to avoid any undermining of the public trust. This office has consistently opined that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of employee-evaluation records.

The disciplinary records at issue reflect that the suspension in this case occurred as a result of violation of rules aimed at this type of conduct or behavior. It is therefore my opinion that the "compelling public interest" standard is met with respect to these records. Accordingly, the custodian's decision to release the records is consistent with the FOIA, in my opinion.

However, one of the records contains information about another employee that appears, on its face, to constitute that employee's job performance record. I am referring to the "Memorandum" dated December 11, 2014, third paragraph on page 2 and second paragraph on page 3. I have no information about this employee and I do not know whether the test for the release of this job performance information is met. The custodian must make that determination. If the test for release is not met, then I believe it will be necessary to redact that employee's name prior to the record's release.

Sincerely,

Leslie Rutledge
Attorney General