Can the City of Beebe release a year's worth of suspension and termination records under FOIA without running afoul of personnel record privacy?

Plain-English summary

Tess Stewart, Beebe deputy city attorney, asked the AG whether the city's decision to release records related to 2019 employee suspensions and terminations was consistent with FOIA. The custodian had identified several responsive documents and intended to release them, presumably with some redactions.

The AG had limited information about the custodian's specific determinations: which records were personnel records, which were evaluation records, whether each prong of the four-part test had been met. But on the face of the records the AG concluded the planned release was "not inconsistent with the FOIA."

The opinion's most useful concrete point: a handwritten narrative within the file (apparently written by an employee) included the first name of someone other than the subject. If that other person is also a public employee, that document might double as the personnel or evaluation record of the other person. In that case, before releasing, the custodian needs to either (1) confirm the other person is not within the scope of the request, in which case the name should be redacted, or (2) treat the document as a "mixed record" and apply the appropriate exemption analysis to that other person's slice.

For documents involving suspension or termination, the four-part evaluation-record test must be satisfied: discipline imposed, finality, basis, and compelling public interest. The opinion presumes the custodian made those determinations because the records were lined up for release, but it cautions that the analysis is fact-specific.

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 is a "mixed record"?
A: A document that contains personnel or evaluation information about more than one employee. The custodian has to classify each piece against each affected employee and apply the right test for each.

Q: If a document mentions someone outside the request, what happens to that name?
A: Two options. If that other person is a public employee, the document may need to be analyzed as that employee's personnel/evaluation record (and could be exempt under that employee's analysis). If that person is responsive to the request and the analysis allows release, fine; if not, redact the name.

Q: Does Beebe have to know which employee was suspended or terminated to release the record?
A: Yes. The four-part test requires the custodian to identify the discipline, confirm it is final, confirm the records formed the basis, and find compelling public interest. None of those questions can be answered without identifying the employee.

Q: What if no compelling public interest exists?
A: Then the evaluation record stays exempt, even if the discipline was severe. The compelling-interest prong is the gatekeeper.

Q: Why did the AG hedge ("not inconsistent")?
A: Because the AG's review under § 25-19-105(c)(3)(B)(i) is not a full-record audit. The custodian's classifications and prong-determinations are presumed unless something on the face of the records contradicts them.

Background and statutory framework

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

• Personnel records under (b)(12) are open unless disclosure would be a "clearly unwarranted invasion of personal privacy" (Young/Stilley balancing).
• Employee evaluation records under (c)(1) are open only if the four-part test is satisfied (suspension/termination, finality, basis, compelling public interest).
• Per-line redaction items under (b)(10), (b)(11), and (b)(13).

The "mixed records" doctrine, that one document can contain multiple employees' records and must be analyzed per employee, is the practical wrinkle for any internal investigation document or summary that names more than one person.

The presumption that records held by a public entity are public records (Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007)) is satisfied here. The Court's evaluation-record test from Thomas v. Hall, 2012 Ark. 66 (2012), is the gating definition.

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)(10) (undercover officers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• 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. 2019-071
December 11, 2019

Tess E. Stewart, Esq.
Beebe Deputy City Attorney
c/o Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd.
P.O. Box 5551
North Little Rock, AR 72119

Dear Ms. Stewart:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the custodian of records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 City of Beebe has received a request under the FOIA for "copies of any documents related to any suspension or termination of any City of Beebe employee in 2019." You have attached several documents that you believe are responsive to the request and that you intend to release. You ask whether your decision to release the requested records is consistent with the FOIA.

RESPONSE

While I lack sufficient information as to each of the custodian's determinations with respect to the records other than they should be released, it appears from the face of the records and based on the definitions and standards discussed below that the decision to release the records is not inconsistent 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 appear to be met. The request was made to the City of Beebe, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. Accordingly, the analysis 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.

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 or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is 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;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• A public employee's driver's license number and a photocopy of the employee's driver's license;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

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 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).

III. Application.

As discussed above, when custodians receive FOIA requests for employment-related records, they must make two determinations: 1) whether the record meets the definition of a personnel record or an employee-evaluation record, and 2) whether the record should be disclosed after applying the appropriate test. The proper classification of an employee-related record is a determination the custodian must make in the first instance, taking into account all of the relevant facts and circumstances.

It appears that the custodian has determined that the records at issue are the evaluation records of the specific employees, and that each prong of the four-part test for disclosure of records of that type has been met. While I lack sufficient information regarding the custodian's specific determinations relating to the records, it appears from the face of the records that the determination to release the records is consistent with the FOIA.

There is one record, however, upon which redactions may need to be made prior to disclosure. The record is a handwritten narrative, presumably by the employee in question. I have no information about this record or the circumstances surrounding its creation, and so I cannot definitively opine as to the custodian's decision to release it. However, the record also contains the first name of someone other than the employee in question. If this record meets the test for disclosure and if this person is also a public employee, then that record also could be either the personnel or evaluation record of that person. In such a case and if records of this person are not responsive to the request, his name should be redacted before the record is released.

Sincerely,

LESLIE RUTLEDGE
Attorney General