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 the University of Arkansas at Pine Bluff's decision to release complaints made by Dr. Celeste Alexander that pertained to him. UAPB had classified the complaints, in part, as Walker's personnel records and determined they were subject to disclosure. It classified a separate set of disciplinary records as employee-evaluation or job-performance records exempt from release. The Attorney General said the custodian had classified the responsive records correctly and applied the appropriate disclosure tests.

Walker argued that releasing the complaints would be "harmful and embarrassing to a reasonable person" and that there was no "compelling public interest" in the information. The AG found neither objection sufficient to bar release. Personnel records are subject to disclosure except to the extent release would be a "clearly unwarranted invasion of personal privacy"; harm and embarrassment are not the FOIA standard. The "compelling public interest" requirement applies to evaluation or job-performance records, not personnel records. The AG referred Walker to Opinion 2019-050, issued the same day, for her analysis of the custodian's decision about these records.

The opinion's second footnote adds a limit to that answer. It recognizes that the Arkansas Supreme Court has protected some personal matters from disclosure on constitutional privacy grounds even where FOIA would require disclosure. The AG said these records did not appear to meet that level of protection.

Currency note

This opinion was issued in 2019. Check the current FOIA text and later decisions before relying on its analysis of another request.

Common questions

Q: Does saying a complaint would be embarrassing stop its release? A: It did not here. The AG said "harmful and embarrassing to a reasonable person" was not the FOIA standard for personnel records. She found Walker's objections insufficient to stop release of these complaints.

Q: Why didn't the AG require a compelling public interest? A: That requirement applies to employee-evaluation or job-performance records. UAPB classified the responsive complaints as personnel records, which use the "clearly unwarranted invasion of personal privacy" standard. The AG agreed with the custodian's classification and disclosure decision.

Q: What happened to the disciplinary records mentioned in the request? A: UAPB classified them as employee-evaluation or job-performance records and determined they were exempt from disclosure. The AG said the custodian had correctly classified the responsive records and applied the appropriate tests. Her answer to Walker focused on release of the complaints pertaining to him.

Q: Can constitutional privacy ever stop a FOIA disclosure? A: The AG's footnote cites McCambridge v. City of Little Rock for the possibility that constitutional privacy protects some personal matters even when FOIA calls for disclosure. She concluded these complaint records did not appear to qualify for that protection.

Q: Where did the AG explain the release decision in more detail? A: She said she addressed the custodian's decision in Opinion 2019-050, issued the same day, and enclosed a copy for Walker. This opinion answers his two objections to that decision.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allows the subject of personnel or employee-evaluation records to request an AG opinion on a custodian's release decision. Walker used that procedure. The AG quoted the personnel-record rule in § 25-19-105(b)(12): disclosure is required except to the extent it would be a clearly unwarranted invasion of personal privacy. She contrasted it with § 25-19-105(c)(1), whose compelling-public-interest requirement concerns evaluation or job-performance records.

The footnote on constitutional privacy cites McCambridge v. City of Little Rock, 298 Ark. 219 (1989). The AG described that protection as applying to some personal matters, but found that the records at issue did not appear to reach it.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation and job-performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)
• Op. Att'y Gen. 2019-050 (opinion enclosed for Walker)

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.

Jessie Walker, Ph.D.
Opinion No. 2019-051
Page 2

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.”1 The notion that disclosure might be seen as “harmful and embarrassing to a reasonable person” is not the proper standard under the FOIA.2 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.3 Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure

1
Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2017).
2
The Arkansas Supreme Court has recognized a constitutional right to the nondisclosure of some personal matters that can, in certain cases, supersede the disclosure requirements under the FOIA. See McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (applying a balancing test between an individual’s privacy interest and the governmental interest in disclosure and finding the governmental interest in disclosure in that case outweighed the individual’s right to privacy). In my opinion, however, the records at issue do not appear to rise to the level of protectability on constitutional privacy grounds that have been recognized by the court. As this office previously noted, McCambridge “suggests that [the court] is not willing to apply the constitutional right to privacy in an expansive fashion.” Op. Att’y Gen. 97-199 (quoting John J. Watkins, Arkansas Freedom of Information Act, 2d ed. 1994 at 156). 3 Compare Ark. Code Ann. § 25-19-105(b)(12) with Ark. Code Ann. § 25-19-105(c)(1).