When a school district considers not renewing a teacher's contract, are the related records evaluation records or personnel records, and does discussing them in an open hearing make them releasable?

Plain-English summary

Rebecca Worsham, attorney for the Riverview School District, asked the AG to review the District's response to a sweeping FOIA request for ten years' worth of records related to teachers recommended for nonrenewal or termination (2009-2019). The District said it had no responsive records in most cases. For the two it did have, it was releasing one set and withholding the other under FOIA exemptions.

Without the actual records, the AG could not opine on the disposition decisions. But the AG flagged three FOIA misunderstandings worth addressing:

1. A nonrenewal letter is not automatically an evaluation record. The District (and a prior AG opinion the District cited) had treated nonrenewal letters as job-performance records subject to the four-part evaluation-record test. The AG disagreed in this opinion. Under the Fair Teacher Dismissal Act (Ark. Code Ann. §§ 6-17-1501 to -1510), a notice of recommended nonrenewal must include reasons under § 6-17-1506(b)(1)(B). But to be an evaluation record, the reasons must include evaluations of the employee detailing performance. If the reasons in the letter are not evaluative (e.g., position elimination, budgetary, programmatic), the letter is more likely a personnel record subject to Young v. Rice balancing.

2. The "clearly unwarranted invasion of personal privacy" test applies only to personnel records. The District seemed to be applying a privacy analysis to a record they had also classified as an evaluation record. Those are mutually exclusive analyses. Personnel records run through the privacy balancing test under (b)(12); evaluation records run through the four-part test under (c)(1). Mixing them is a recipe for getting both wrong.

3. Open-meeting discussion does not change the disclosure analysis. The District (citing Op. Att'y Gen. 87-284) had suggested that if a school board discussed exempt employee records in an open hearing, those records became publicly disclosable. The AG firmly rejected that. The disclosure analysis turns on the content and classification of the record, not the forum in which it was discussed. The AG quoted the same 87-284 opinion to make the opposite point: the AG's predecessor had said that even when minutes from a meeting were open, "[i]f the governing body in question here relied upon employee evaluations or other job performance records in reaching their decision, the records would remain shielded from public view."

The opinion is useful as a teaching opinion. It corrects three substantive misunderstandings that were creeping into the District's analysis.

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: When does a nonrenewal letter become an evaluation record?
A: When the reasons given in it detail the teacher's performance or lack of performance. If the reasons are about position elimination, budgetary necessity, or program restructuring, they are not evaluative and the letter is more likely just a personnel record.

Q: Does it matter whether the teacher was actually terminated, or just recommended for nonrenewal?
A: Yes. The four-part evaluation-record test requires "suspension or termination" as the level of discipline. Nonrenewal alone (which usually doesn't qualify as "termination" under the FOIA's evaluation-record exemption) doesn't satisfy that prong, even if the underlying records detail performance.

Q: Why does open-meeting discussion not unlock exempt records?
A: Because FOIA classifies records by what they are, not where they have been talked about. A board meeting under the open-meeting law is its own legal moment. The exemption analysis under FOIA looks at the record itself.

Q: What about minutes of the meeting where exempt records were discussed?
A: Minutes themselves are usually disclosable (subject to ordinary FOIA analysis), but they don't pull in the underlying exempt records. The District has to handle each record on its own terms.

Q: What does the District do when it has no responsive records?
A: It says so honestly. FOIA does not require an agency to create records. But the District should be careful that "no responsive records" really means none at all, not "we have records but think they are exempt." Those are different responses.

Background and statutory framework

The standard FOIA two-track structure applies (Ark. Code Ann. § 25-19-105):

• Personnel records under (b)(12) run through the Young v. Rice balancing test for "clearly unwarranted invasion of personal privacy."
• Employee evaluation/job performance records under (c)(1) run through the four-part test (suspension/termination, finality, basis, compelling public interest).

The Fair Teacher Dismissal Act (§§ 6-17-1501 to -1510) governs the substantive nonrenewal/termination process for Arkansas teachers. § 6-17-1506(b)(1)(B) requires the superintendent's notice of recommended nonrenewal to set forth reasons. The substance of those reasons drives the FOIA classification.

Op. Att'y Gen. 87-284, which the District cited, did not support the position that open-meeting discussion automatically renders records disclosable. The opinion said the opposite: that even where probationary employees were discussed openly, the underlying evaluation records remained shielded because the test for releasing them (suspension or termination) was not met. The District had read the wrong holding into 87-284.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info redaction)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officers)
• Ark. Code Ann. §§ 6-17-1501 to -1510 (Fair Teacher Dismissal Act)
• Ark. Code Ann. § 6-17-1506(b)(1)(B) (nonrenewal-notice content)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• 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. 2019-054
August 23, 2019

Rebecca Worsham, Esq.
Mixon & Worsham PLC
505 Union
P.O. Box 1442
Jonesboro, AR 72403

Dear Ms. Worsham:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 Riverview School District ("District") has received a FOIA request for the following records:

1. A copy of all personnel records for teachers who were recommended for non-renewal from the District for the years 2009-2019.
2. A copy of all personnel records for teachers who were recommended for termination from the District for the years 2009-2019.
3. A copy of all records "related to the suspension or termination" and "employee evaluation and job performance records" for all teachers recommended or non-renewal or termination from the District for the years 2009-2019.

You state that in all but two cases, the District keeps no records that would be responsive to the request. With respect to those two cases, you state that the District has determined that the records in one case are subject to disclosure, but are not subject to disclosure in the other case. Furthermore, you make several assertions regarding the disclosability or non-disclosability of the types of records that have been requested but that you state the District has no responsive records. You ask whether these decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not been provided any of the records that have been deemed to be responsive to the FOIA request, I am unable to opine about the releasability of any specific document or whether any specific piece of information should be redacted from an otherwise releasable document. Thus, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed.

[The opinion's general FOIA framework discussion (sections I and II) is omitted here for brevity but is the standard personnel-records / employee-evaluation-records analysis from Ark. Code Ann. § 25-19-105(b)(12) and § 25-19-105(c)(1), citing Young v. Rice, Stilley v. McBride, Thomas v. Hall, and the standard list of per-line redactions.]

III. Application.

Because I have not reviewed the records that have been determined to be responsive to the request, I am unable to definitively opine on whether the custodian's decisions are consistent with the FOIA. Nor can I opine on the determination whether the District has any responsive records. However, I have some concerns regarding some of the assertions made about certain types of records the District may have and an understanding of the FOIA more generally.

At the outset, I must point out that I cannot provide answers to hypothetical or general questions regarding the FOIA in the context of an opinion required under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). I am tasked, instead, with reviewing the custodian's decision on whether particular personnel or employee-evaluation records are subject to disclosure. That said, there are some aspects of your letter that I believe I must address.

The first has to do with the bald statement that letters given to teachers whose contracts will not be renewed for the next school year are job-performance records, the release of which must be judged by the test for employee-evaluation records discussed above. In my opinion, it is not absolutely clear that that would be so. We must remember that the classification of an employee-related record (be it a personnel record or an employee-evaluation record) is wholly dependent on the record's content.

While I agree with my predecessor, whose opinion you cite, that the mere fact that a teacher's contract will not be renewed is not tantamount to or the equivalent of a termination, it does not necessarily follow that the non-renewal letter is a job-performance record. I understand that under the Fair Teacher Dismissal Act, a notice of recommended nonrenewal must include a statement by the superintendent setting forth the reasons for the nonrenewal. However, in order to qualify as an employee-evaluation record, at least some of those reasons would have to include evaluations of the employee, detailing the employee's performance or lack of performance on the job. If the reasons given for nonrenewal do not involve an evaluation of the employee, then the nonrenewal notice could well be classified as the teacher's personnel record. Again, the content of the notice is critical in making that determination.

In your second question, you refer to "an unwarranted invasion of personal privacy" [sic] in the context of what appears to be a discussion of an employee-evaluation record. The decision to withhold or disclose evaluation records does not hinge on whether there would be an invasion of privacy against the employee, as discussed above.

Finally, you appear to state that if a school board discusses in a public hearing a teacher's evaluation records that are exempt from disclosure under the FOIA, then the records can be disclosed by virtue of their having been discussed in an open hearing. In my opinion, this is an incorrect interpretation of the statute. Whether an employee-related record must be disclosed or withheld is judged based on the particular test applicable to the record. That an exempt record may have been discussed during an open meeting does not change that record's status into one that must be disclosed. And the same would be true for non-exempt records discussed in a private meeting (that fact would not convert a record subject to disclosure into one that is exempt from disclosure).

You cite Op. Att'y Gen. 87-284 in support of the District's position that the discussion of exempt employee-evaluation records in a public hearing renders those records subject to disclosure. However, in that same opinion, my predecessor wrote the following, with which I concur:

If the governing body in question here relied upon employee evaluations or other job performance records in reaching their decision, the records would remain shielded from public view. The [statutory] language is clear in that it contemplates the release of performance records only when the decision is to suspend or terminate. Since the decision here is to place the employee on probation, the criteria for release [have] not been met.

In sum, not having seen the records at issue, I cannot definitively opine as to the custodian's decisions regarding them. However, I believe your letter in behalf of the District contained some misunderstandings regarding the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General