Can a public-university employee block release of complaints made about him by saying disclosure would be embarrassing or that there's no compelling public interest?

Plain-English summary

Dr. Jessie Walker objected to UAPB's decision to release complaints made about him by Dr. Celeste Alexander, a former employee. The same FOIA request had generated a separate opinion (Op. Att'y Gen. 2019-050, issued the same day) confirming that release was appropriate. Walker raised two arguments:

1. Disclosure "would be harmful and embarrassing to a reasonable person."
2. There was no "compelling public interest" in the requested information.

The AG concluded both arguments were legally insufficient.

• The "harmful and embarrassing" framing is not the FOIA test. The actual standard for personnel records under Ark. Code Ann. § 25-19-105(b)(12) is "clearly unwarranted invasion of personal privacy," which runs through the Young v. Rice two-step balancing test. "Harmful and embarrassing" is not a synonym for that test.
• "Compelling public interest" is the wrong standard. That phrase comes from § 25-19-105(c)(1) and applies only to employee-evaluation or job-performance records. Walker was the subject of complaints that were classified as personnel records (because they were unsolicited by UAPB). The four-prong test does not apply.

The AG enclosed Op. 2019-050 with this opinion to give Walker the substantive analysis. The custodian's decision to release was consistent with the FOIA.

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 does the records subject not get to invoke "compelling public interest"?
A: Because that test only applies to employee-evaluation records under § 25-19-105(c)(1). Personnel records are governed by the privacy-balancing test in § 25-19-105(b)(12) and Young v. Rice. Walker apparently believed the test for personnel records was the same as for evaluation records, so he tried to argue the lack of compelling public interest. The two are different.

Q: What's the right way to argue against release?
A: For personnel records, the records subject must show that the privacy interest outweighs the public's interest in disclosure under the Young v. Rice test. Stilley v. McBride, 332 Ark. 306 (1998), allocates the burden to the records subject. The privacy interest must be "greater than de minimis," meaning the information must be of a personal or intimate nature. Then the privacy interest must outweigh the public's interest in disclosure, and the thumb is on the scale toward disclosure.

Q: Why aren't "harmful and embarrassing" effects enough?
A: The standard is objective, not subjective. Young v. Rice asks whether the public interest in transparency is outweighed by an objective privacy interest, not whether the records subject feels uncomfortable. Most disciplinary or critical records about public employees would be embarrassing to the subject; that is not enough.

Q: Is the requestor's identity or motive relevant?
A: Generally no. A FOIA requester's motive is irrelevant to whether a non-exempt public record should be released. This was the AG's longstanding position, repeated in the FOIA cluster of opinions issued throughout 2019.

Q: How does this opinion connect to Op. 2019-050?
A: They are companion opinions. 2019-050 was the substantive analysis the AG gave to Dr. Alexander (the complaining employee). 2019-051 is the procedural answer to Dr. Walker (the subject of the complaints), pointing him to 2019-050 and rejecting his specific arguments.

Q: What happens after the AG agrees with the custodian?
A: The custodian releases the records. If Walker still wanted to fight, the next step would be a court action under § 25-19-107 (FOIA injunctive relief), with the same legal standards applying.

Background and statutory framework

Section 25-19-105(c)(3)(B)(i) lets the records subject seek an AG opinion. Walker invoked it. The AG's review is supposed to apply law to facts the custodian has determined.

The substantive analysis comes straight from the FOIA cluster's standard playbook. Personnel records under § 25-19-105(b)(12) get the Young v. Rice privacy-balancing test. Employee-evaluation records under § 25-19-105(c)(1) get the four-prong test (suspension or termination, finality, basis, compelling public interest).

The "harmful and embarrassing" framing Walker used does not correspond to either statutory test. The opinion is short because the AG simply rejected the legal premise of Walker's objections and pointed him to the substantive answer in 2019-050.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception, four-prong test including compelling public interest)
• 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)
• Op. Att'y Gen. 2019-050 (companion opinion, same day)

Source

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

Original opinion text

Opinion No. 2019-051
July 24, 2019

Jessie Walker, Ph.D.
Senior Associate Director
Arkansas Department of Education
Four Capitol Mall
Little Rock, AR 72201

Dear Dr. Walker:

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 Dr. Celeste Alexander in the past five years, as well as all complaints made by Dr. Celeste Alexander in the past five years. UAPB has determined that the requested disciplinary records constitute employee-evaluation or job-performance records that are exempt from disclosure under FOIA. UAPB has also concluded that the requested complaints, in part, constitute your personnel records that are subject to disclosure. You object to the records custodian's decision to disclose the complaints pertaining to you, stating "disclosure of this information would be harmful and embarrassing to a reasonable person." You further state that there is no compelling public interest in the requested information. You ask whether UAPB's release decision regarding the complaints is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. It is my opinion that the custodian has both correctly classified the responsive records and applied the appropriate tests for their disclosure in a manner consistent with the FOIA. Moreover, your objections to the records' disclosure are not legally sufficient basis to withhold the records.

I have addressed the custodian's decision with respect to these records in Op. Att'y Gen. 2019-050, released the same day as this opinion. I have enclosed a copy of that opinion for your review. It addresses the same issues that are the subject of your request.

As to your reasons underlying your objections to the records' disclosure, it is my opinion that they are legally insufficient to bar disclosure. As stated in the enclosed opinion, personnel records are subject to disclosure except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The notion that disclosure might be seen as "harmful and embarrassing to a reasonable person" is not the proper standard under the FOIA. Furthermore, the question whether there is a "compelling public interest" in disclosure only applies to employee-evaluation or job-performance records, not to personnel records.

Sincerely,

LESLIE RUTLEDGE
Attorney General
Enclosure