Can a former University of Arkansas at Pine Bluff employee block release of complaints she made against coworkers?

Plain-English summary

The University of Arkansas at Pine Bluff received a FOIA request for two batches of records related to former employee Dr. Celeste Alexander: (1) "all disciplinary records that mention or discuss [her] in the past five years," and (2) "all complaints made by [her] in the past five years." The custodian determined that the disciplinary records were employee-evaluation records and exempt, while the complaints she had filed were personnel records that could be released without a clearly unwarranted invasion of privacy.

Dr. Alexander asked the AG to review the release decision regarding the complaints. The AG sided with UAPB:

1. The complaints are personnel records, not evaluation records. "Employee complaints that are unsolicited by the employer qualify as personnel records." Op. Att'y Gen. 2018-038 had said the same: an unsolicited complaint, not prepared "at the behest" of the employer, is "the personnel record of both the public employee complained about and the complaining employee."
2. Releasing them passes the Young v. Rice test. From the face of the records, the AG concluded that disclosure would not constitute a clearly unwarranted invasion of personal privacy of any of the employees named in the complaints.
3. UAPB's decision is consistent with the FOIA.

This opinion is the substantive partner to Opinion 2019-0051, issued the same day to Dr. Jessie Walker (the subject of the complaints, who objected to release). The AG referred Walker back to this opinion.

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: Why are complaints "personnel records" and not "evaluation records"?
A: Because of who initiated them. The Arkansas Supreme Court's Thomas v. Hall test makes "at the behest of the employer" the threshold element of an evaluation record. A complaint that an employee files on her own initiative was not requested by the employer, so it cannot qualify as an evaluation record. The AG opinion refers to Op. 2018-038 for the longstanding office position.

Q: A complaint mentions other employees by name. Is it their personnel record too?
A: Yes. Op. 2018-038 (cited in this opinion) is explicit: an unsolicited complaint is the personnel record of both the complaining employee and the person complained about. So both groups have a privacy interest the custodian must balance, but the analysis is still the personnel-records test, not the evaluation-records test.

Q: How did the AG actually run the privacy balancing test here?
A: The AG did not lay out a step-by-step balancing in this opinion. After reviewing the records and applying the Young v. Rice framework, the AG simply concluded the privacy interests of the named employees did not outweigh the public's interest in disclosure. The thumb is on the scale toward disclosure, and the records subject (Walker, in the companion opinion) bore the burden under Stilley v. McBride.

Q: Could Walker have stopped the release if he had argued differently?
A: He tried, in Opinion 2019-0051. He argued that disclosure would be "harmful and embarrassing" and that there was no compelling public interest. The AG rejected both: harm and embarrassment are not the legal standard for personnel records, and "compelling public interest" is the standard for evaluation records, not personnel records.

Q: What about the disciplinary records that UAPB withheld?
A: Those were classified as employee-evaluation records, which UAPB determined were exempt. Dr. Alexander did not ask the AG to review that determination, only the release of the complaints she had filed. The AG noted: "I gather that you seek my opinion regarding the custodian's decision to release the complaint documents."

Background and statutory framework

The two-track FOIA framework runs through every employment-records opinion. Personnel records are presumptively releasable subject to the Young v. Rice privacy-balancing test. Employee-evaluation records are presumptively closed, with release only on the four-prong test (suspension or termination, finality, basis, compelling public interest). The classification controls which test applies.

The "unsolicited complaint" rule has been a settled AG-office position. Op. 2018-038 stated it directly: a complaint not prepared by or at the behest of the employer is not an evaluation record. Thomas v. Hall, 2012 Ark. 66, supplied the "at the behest" element of evaluation records, and the AG has consistently applied it to keep voluntary complaints out of the evaluation-records bucket.

The standard redaction list for personnel records (personal contact info, SSN, DOB, medical info, undercover-officer identification, etc.) still applies even when the document overall is releasable. Section 25-19-105(c)(3)(B)(i) is the AG-review channel.

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)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG-opinion review procedure)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

Opinion No. 2019-050
July 24, 2019

Dr. Celeste Alexander
6001 S. Cedar Street
Pine Bluff, AR 71603

Dear Dr. Alexander:

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 your former employer, the University of Arkansas at Pine Bluff (UAPB), has received a request under the FOIA for "all disciplinary records that mention or discuss [you] in the past five years," as well as "all complaints made by [you] in the past five years." The records custodian has determined that the requested disciplinary records "constitute employee evaluation or job performance records and are exempt from disclosure under FOIA." The custodian has further determined that the requested complaints "constitute personnel records and that there would not be a clearly unwarranted invasion of privacy if they are disclosed." This office is in receipt of your request for a review of the custodian's decision(s).

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I gather that you seek my opinion regarding the custodian's decision to release the complaint documents. In my opinion, the custodian has properly determined that the release of these documents would not constitute a clearly unwarranted invasion of personal privacy of any of the employees named therein. Accordingly, it is my opinion that the custodian's decision is consistent with 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 UAPB, which is a public entity subject to the FOIA. Furthermore, 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 … ."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

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.

In this instance, it is my opinion that the requested complaints have been properly classified as personnel records. It has long been this office's view that employee complaints that are unsolicited by the employer qualify as personnel records. Furthermore, I have no information regarding the creation of these particular records that leads me to question their classification as anything other than personnel records. I will therefore limit my analysis to the test for release of personnel records.

The FOIA does not define the term "personnel records." 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 any particular personnel record's release 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).

III. Application.

In this instance, the custodian has (1) classified the complaint documents as personnel records that (2) are open to disclosure based on the determination that their release would not constitute a clearly unwarranted invasion of personal privacy of any of the employees named therein. It is my opinion, from the face of the records and applying the above test for disclosure of personnel records, that both of these determinations are correct. It is, therefore, my opinion that the custodian's decision to release the records is consistent with FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General