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 definition discussed 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 possible redaction for the custodian to assess. 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.

Anyone making a release decision today should check current Arkansas FOIA text and later guidance on employee evaluation records.

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. The opinion says the two categories have different disclosure tests but limits its analysis to employee evaluation records. Ark. Code Ann. § 25-19-105(c)(1) permits release of those records only after suspension or termination, final administrative resolution, a record that formed a basis for that decision, and a 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 gave no specific reason for objecting. The AG assessed the two disciplinary records under the employee evaluation provision and found the custodian's release decision consistent with FOIA.

Common questions

Q: What is the four-part test for releasing employee-evaluation records? A: Under Ark. Code Ann. § 25-19-105(c)(1), as described in the opinion: (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: Brown gave no reason for his objection. The AG found the custodian's decision to release these two disciplinary records consistent with FOIA; she did not state a general rule about every employee objection.

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: This opinion discusses only one possible redaction: another employee's name in a December 11, 2014 memorandum, if the disclosure test for that employee's job performance information is not met.

Q: Why does law-enforcement context push toward release? A: The AG quoted an earlier opinion saying the public has a great interest in police officers' job performance. She found the apparent violation of rules protecting public trust more pertinent to these records.

Background and statutory framework

The Arkansas Freedom of Information Act has distinct provisions for personnel records and employee evaluation records. The AG applied the latter here:

• 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.

Ark. Code Ann. § 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)(12) (personnel-records exception)
• 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

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. 2008-065 (four-part test articulated)

Source

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

Original opinion text

STAT E OF ARXAN SAS
ATTORNEY GENERAL
LES LI E RUTL EDGE

Opinion No. 2019-028

April 23 , 2019

Roderick Brown
c/o The Honorable Jimmy Williams
Mayor
35 South Poplar Street
Marianna, AR 723 60

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

323 CENTE R STREET. SU ITE 200 · LITTL E RO C K. ARKANSAS 72201 TELE PH ONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG.GOV

Roderick Brown
c/o The Hon. Jimmy Williams
Opinion No. 2019-028
Page 2

FOIA. In my opinion, the custodian's decision to release the two disciplinary records is consistent with the FOIA. 1

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 .... " 2 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 3

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. 4 For purposes of the FOIA, these items can usually

1
As explained below, however, the redaction of another employee's name from one of the records may be necessary under the relevant FOIA exception.

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 FO IA 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;

Roderick Brown
c/o The Hon. Jimmy Williams
Opinion No. 2019-028
Page 3

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.

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 prov1s10n.

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. 7 This exception includes records generated while investigating allegations of employee 8 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);

requests for leave-without-pay; ce1tificates 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 ACT 205-06 (Arkansas Law Press, 6th ed., 2017).

5
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."

6
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."

7
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.

8
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

Roderick Brown
c/o The Hon. Jimmy Williams
Opinion No. 2019-028
Page 4

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). 9

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. 10

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, 11 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.

9
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
10
Watkins, et al., at 238-39 (footnotes omitted).
11
Id. at 23 7 (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").

Roderick Brown
c/o The Hon. Jimmy Williams
Opinion No. 2019-028
Page 5

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. 12

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. This is apparent from the custodian's determination that the records are the subject employee's evaluation records that must be released to the requester. 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:

The opinions from this office, and the views of the leading commentators on the FOIA, indicate that rank within the hierarchy "may be relevant" to determining whether a compelling public interest exists. But, as the commentators note, this conclusion is tempered in the context of law enforcement: "[T]he public has a great interest in the Liob] performance of police officers .... " 13

12
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
13
Op. Att'y Gen. 2014-129 (quoting John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 217 (footnotes omitted) (Arkansas Law Press, 5th ed., 2009)).

Roderick Brown
c/o The Hon. Jimmy Williams
Opinion No. 2019-028
Page 6

Additionally, the absence of public controversy in some circumstances establishes 14 little with respect to whether a compelling public interest in disclosure exists. 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. 15 As commentators on the FOIA have observed, "[t]he public's interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by employees." 16

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. 17

Sincerely,

.--.c:··. ---~ -~·:>-. .,: . t"/{/i)~~ .--:-

LESLIE RUTLEDGE
Attorney General

14
See Op. Att'y Gen. 2014-122 (rejecting the notion that the mere absence of public controversy requires that a record be withheld, given that the public may simply be unaware of the underlying episode giving rise to the controversy).

15
See Ops. Att'y Gen. 2010-055 (deeming a compelling public interest to exist when records "reflect that the suspensions occurred as a result of the violation of rules aimed at conduct which manifestly could undermine the public trust and/or compromise public safety and the safety of other Depa1tment employees") and 97-400 ("[1]t is my opinion that the nature of the problem that led to the suspension compels disclosure in this instance where the activities detailed in the records violated administrative rules and policies aimed at conduct which could undermine the public trust and/or compromise public safety.").

16
Watkins, et al. at 234 (footnotes omitted).

17
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.