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, presumably written by the employee in question, included the first name of someone else. If that person is also a public employee, the document could also be that person's personnel or evaluation record. If records of that person are not responsive to the request, the name should be redacted before release. The AG said she could not definitively opine on the handwritten record without information about its creation and circumstances.

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 did the AG flag in the handwritten narrative?
A: It included the first name of someone other than the employee in question. If that person is also a public employee and the record is not responsive to that person's records request, the name should be redacted before release. The AG could not definitively evaluate the record without more information about its creation.

Q: If a document mentions someone outside the request, what happens to that name? A: If the person is also a public employee, the document could be that person's personnel or evaluation record. If records of that person are not responsive to the request, the name should be redacted before release.

Q: Does Beebe have to know which employee was suspended or terminated to release the record? A: The custodian must apply the four-part test to the records. This opinion says the custodian appeared to have determined that each prong was met, while the AG said she lacked sufficient information about the specific determinations.

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: The AG said she lacked sufficient information about each determination, but the records' face and the stated standards made the planned release appear not inconsistent with FOIA. She could not definitively opine on the handwritten narrative.

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 handwritten narrative illustrates that a document may also be a personnel or evaluation record of another public employee named in it. The AG said the other person's name should be redacted if that person's records are not responsive.

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

STAT E OF ARKAN SAS
ATTORNEY GEN ERAL
LESLI E RUTLEDGE

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.

323 CENTER STREET. SU ITE 200 · LI TTLE ROCK. AR KAN SAS 72201 TELEP HONE (50 1) 682-2007 ·FAX (50 1) 682-8084 ARKANSASAG.GOV

Tess E. Stewart, Esq.
Opinion No. 2019-071
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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. 1 Because the records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 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. 4 For purposes of the FOIA, these items can usually

1
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 .... " Ark. Code Ann. § 25-19- 103(7)(A) (Supp. 2017).

3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) ("the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not 'constitute a record of the performance or lack of performance of official functions,"' citing Op. Att'y Gen. 2005-095). 4 This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; ce11ifieates of advanced training or education; and legal documents, such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz- Steele & Robe11 Steinbuch, THE ARKANSAS FREEDOM or INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed., 2017).

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be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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. 7 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. " 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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

5
Ark. Code Ann.§ 25-19-105(b)(12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....
[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." For a greater explanation of the personnel records exemption, see, e.g., Op. Att'y Gen. 2019-062 (and opinions cited therein).

6
Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8
Ark. Code Ann. § 25-19-105(b )( 12).

9
308 Ark. 593, 826 S.W.2d 252 (1992).

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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. 10

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. 11 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. 12 Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the 13 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 14 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. 15 Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be released. 16 Again, the test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. 17 This ordinarily precludes the

10
Watkins, et al., at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id., 826 S.W.2d at 255.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.
17
See Ops. Att'y Gen. 2019-04 7, 2018-061.

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custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld. 18

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)(l3));

• 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)(l0));
• A public employee's driver's license number and a photocopy of the employee's driver's license (Ops. 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).

18
See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Att'y Gen. 2014-094 (noting that "neither the Arkansas Legislature nor our appellate cou11s have allowed custodians to consider the subjective motive of the requester."). While the requester's subjective motive cannot be the basis for the decision, it can be considered by the custodian to determine whether it supplies an objective public interest previously unseen. Op. Att'y Gen. 2014-094 at n.8. The Legislature has not seen fit to include a generalized "harassment" exemption to the release of otherwise disclosable employee-related records. Op. Att'y Gen. 2019-047 (and opinions cited therein).

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b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 19 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

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). 22

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: ( 1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public

19
I will refer to this group of records as "employee-evaluation records." 20
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. 21 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
22
Ark. Code Ann.§ 25-l 9-105(c)(I); Op. Att'y Gen. 2008-065.

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controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" . 23 requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, 24 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship. 25

III. Application.

As discussed above, when custodians receive FOIA requests for ernployment- 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. 26

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

23
Watkins, et al., at 238-39 (footnotes omitted).
24
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue").

25
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
26
E.g. Ops. Att'y Gen. 2018-024, 2017-063, 2005-236.

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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. 27

Sincerely,

~=-~-
L. /#-1..p
LESLIE RUTLEDGE
Attorney General

27
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.