When an Arkansas school employee disputes the district's decision to classify complaints as personnel records (not evaluation records), can the AG resolve it?

Plain-English summary

Attorney J. Mark White, representing the subject of the records, asked the AG to review a Bryant School District release decision. The District had received a FOIA request for certain employment records and decided that complaints in the file were not employee-evaluation records and could be released with redactions. White's client objected, arguing that the complaints were in fact evaluation records. The dispute turned on whether the complaints were "created at the behest of the employer to evaluate" the employee, the second prong of the Thomas v. Hall three-element test.

The AG could not resolve the dispute. The classification question, especially the "at the behest" prong, was "intensely factual" and could not be determined "simply from the face of the records." Under the AG office's longstanding policy, fact-finding is not the AG's role; that initial determination belongs to the custodian, subject to judicial review under Ark. Code Ann. § 25-19-105(c)(3)(C).

What the AG did do was lay out the framework:

1. The records are public records (held by a public entity, reflect performance of an official function).
2. They must be classified as either personnel records or employee-evaluation records.
3. If they are personnel records, the Young v. Rice two-step balancing test controls disclosure, plus standard redactions.
4. If they are employee-evaluation records, the four-prong test of § 25-19-105(c)(1) controls (level of discipline, finality, basis, compelling public interest).
5. The classification is "always a question of fact" for the custodian.

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.

Common questions

Q: What does "at the behest of the employer" mean?
A: It is the AG and Arkansas Supreme Court's shorthand for "did the employer ask for this record to be made?" If a coworker walks into HR voluntarily and files a complaint, that record was probably not "at the behest" of the employer. If the employer set up an investigation and asked employees to provide statements, those statements were "at the behest." The line is fact-specific and matters because only employer-initiated documents can be evaluation records.

Q: Why does the classification matter so much?
A: Because the disclosure tests are very different. Personnel records are presumptively disclosable subject to a privacy-balancing test that tilts toward disclosure. Employee-evaluation records are presumptively closed and only release on the four-prong test. Mislabeling a record can mean release of confidential evaluations or wrongful withholding of public records.

Q: What is the Thomas v. Hall three-element test?
A: A record is an employee-evaluation record only if it is (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing the employee's performance or lack of performance on the job. All three elements must be present. Thomas v. Hall, 2012 Ark. 66, also recognized that records generated while investigating allegations of employee misconduct that detail incidents giving rise to those allegations can fall within the exception.

Q: Why does the AG say "I can only set out all the definitions"?
A: Because the AG cannot act as a fact-finder under longstanding office policy. Whether documents were created at the employer's behest, whether they were created to evaluate, what specifically they describe, are factual questions. The AG's review under § 25-19-105(c)(3)(B)(i) is supposed to apply law to facts the custodian has determined.

Q: What's the next step after this opinion?
A: The custodian makes the call. If the records subject still disagrees, the next step is judicial review under § 25-19-105(c)(3)(C). A court can resolve fact disputes the AG cannot.

Q: Could the requester force the issue too?
A: Yes, in principle. The same statute authorizes the requester (not just the records subject or custodian) to seek an AG opinion or, ultimately, judicial review.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is the AG-review channel; § 25-19-105(c)(3)(C) preserves judicial review. The AG's role under (c)(3)(B)(i) is to state whether the custodian's decision is consistent with the FOIA. Where classification turns on facts, the AG cannot preempt the custodian's first-instance determination.

The two key authorities for the substantive framework are familiar from the rest of the FOIA cluster: Young v. Rice, 308 Ark. 593 (1992), supplies the privacy-balancing test for personnel records; Stilley v. McBride, 332 Ark. 306 (1998), allocates the burden to the records subject; and Thomas v. Hall, 2012 Ark. 66, supplies the three-element test for evaluation records.

The four-prong test for releasing employee-evaluation records under § 25-19-105(c)(1) is: (1) the employee was suspended or terminated; (2) final administrative resolution; (3) the records formed a basis for the discipline decision; and (4) compelling public interest. The "compelling public interest" prong looks at the nature of the infraction (especially public-trust violations or gross incompetence), the existence of a related public controversy, and the employee's position within the agency.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception, four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG-opinion review procedure)
• Ark. Code Ann. § 25-19-105(c)(3)(C) (judicial review)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2019-049
July 24, 2019

J. Mark White, Esq.
Attorney at Law
301 Roya Lane, Suite 4
Bryant, AR 72022

Dear Mr. White:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as counsel for the subject of the records, 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 Bryant School District has received a request under the FOIA for certain employment records relating to your client. You report that the District has decided the records do not qualify as evaluation records, and that it intends to release them, with redactions. You object to the District's determination that the records do not constitute evaluation records. Specifically, you dispute the District's determination that the complaints were not requested at the District's behest.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. However, because of the records' lack of clarity on their face, there are questions regarding their classification, specifically, whether the records are employee-evaluation records, that are intensely factual in nature. Because I cannot act as a fact-finder in the issuing of opinions, I cannot definitively opine on the custodian's decisions with respect to these records. I can only set out all the definitions and legal standards that must be applied to the records at issue.

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 District, which is a public entity subject to the FOIA. The request also 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 … ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

Having reviewed the records you provided, it is my opinion that the documents clearly reflect the performance or lack of performance of an official function. Therefore, in my opinion, these documents are public records and 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. 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.

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. 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."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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

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)(10));
• 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 long-held 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. 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.

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, 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.

III. Application.

When dealing with employment-related records, custodians must, in the first instance, determine: (1) whether the records meet the definition of the two kinds of employment records discussed above; and if so (2) whether, under the specific circumstances, the FOIA requires the employment records be released or withheld based on the applicable test for disclosure discussed above.

I cannot definitively opine in this case regarding either of these determinations. It appears there are competing claims between your client and the District regarding whether the records should be classified as employee-evaluation records. From your letter, the crux of the matter appears to be whether the records at issue were created at the behest of the employer to evaluate your client. As explained above, these are necessary criteria to classify a document as an employee-evaluation record. Whether these criteria are met in this case is a matter that cannot be determined simply from the face of the records. The resolution of the parties' respective claims in this regard is an intensely factual matter that cannot be resolved in the context of an opinion from this office.

In sum, I cannot determine from the face of the records whether the custodian's decisions are consistent with the FOIA as a matter of law. There are factual matters at issue that prevent me from definitively opining in this case. These factual matters must be determined initially by the custodian, subject, of course, to the right of judicial review.

Sincerely,

LESLIE RUTLEDGE
Attorney General