Can the University of Arkansas at Fort Smith release a former employee's termination and disciplinary records under Arkansas FOIA?

Plain-English summary

The University of Arkansas at Fort Smith (UAFS) received a FOIA request for records about the termination of a former employee, plus any associated disciplinary records. UAFS identified responsive Bates-stamped documents and decided to release them with redactions. The records subject objected: he said he was not actually terminated, that any termination would not have been justified, and that the FOIA requester had bad motives. UAFS asked AG Leslie Rutledge to review the release decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). David A. Curran, the UA System's Associate General Counsel, made the request.

The AG's review focused on two issues.

Issue 1: Are the records FOIA-exempt as personnel or evaluation records? No, not entirely. After reviewing the actual records (UAFS attached them to the request, which is unusual; AG opinions on FOIA review more often proceed without document review), the AG concluded that the records that plainly qualified as personnel records or as evaluation records were properly being released as redacted. Personnel records get Young v. Rice balancing under Ark. Code Ann. § 25-19-105(b)(12); evaluation records get the four-prong Thomas v. Hall test under Ark. Code Ann. § 25-19-105(c)(1). The AG signaled that, on the facts, both tests were met for the records that fell within those categories. She added a tactful nudge in footnote 26: some of the records contained students' names that had been redacted, presumably under the FERPA-related exemption at Ark. Code Ann. § 25-19-105(b)(2), and although those redactions were likely warranted, applicability of that separate exemption is for the custodian and local counsel to confirm.

Issue 2: Are several of the documents even "public records"? The AG flagged that the underlying question for some documents (specifically Bates-stamped pages 3, 36-39, and 70-74) was not whether a personnel-records exemption applied, but whether the documents were "public records" within the meaning of Ark. Code Ann. § 25-19-103(7)(A) at all. A public record under that definition is something "required by law to be kept or otherwise kept" and that "constitute[s] a record of the performance or lack of performance of official functions ... carried out by a public official or employee." If a document is not held in connection with the performance of official functions, it might not qualify as a public record despite being in an agency's possession.

That threshold question is outside the AG's review under § 25-19-105(c). Section 25-19-105(c)(3)(B) authorizes the AG to opine only on whether the custodian's decision regarding "personnel or evaluation records" is consistent with FOIA. Determining whether a document is even a public record is a different inquiry that belongs to the custodian (and, if needed, to a court). The AG cited Op. Att'y Gen. 2020-002 and 2008-095 for that limitation. So she declined to opine on those Bates-stamped pages.

On the subject's objections: Not legally sufficient. The custodian cannot consider the requester's subjective motive. A former employee's quarrel with the fact or justification of a termination is not a basis to withhold otherwise-disclosable records. Whether someone resigned versus was terminated is a fact question outside the AG's role. And the records, on their face, reflected the fact of termination, so the AG accepted that classification for the records-review portion of her opinion.

Currency note

This opinion was issued in 2020. 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

What's the threshold "public record" question and why does it matter?
Arkansas FOIA only reaches "public records" as defined in Ark. Code Ann. § 25-19-103(7)(A): documents "required by law to be kept or otherwise kept" that constitute a record of the performance or lack of performance of official functions. Documents that happen to be in an agency's possession but do not reflect official-function performance might fall outside the definition. The personnel-records and evaluation-records exemptions only matter once a document is in the public-records universe.

Why didn't the AG just decide the public-records question?
Because Ark. Code Ann. § 25-19-105(c)(3)(B) bounds her statutory review. The provision lets the custodian, requester, or subject ask the AG to opine on the custodian's release decision regarding personnel or evaluation records. It does not authorize her to opine on whether documents are public records in the first place. That's a distinction the AG has long observed (Ops. Att'y Gen. 2020-002, 2008-095).

Can a records subject who claims he wasn't actually terminated block release?
Not on that basis alone. Whether a person was terminated or resigned is a fact question. The AG observed that the records, on their face, reflected the fact of termination. A subject's quarrel with the underlying disciplinary decision is not a FOIA defense.

How does FERPA interact with Arkansas FOIA personnel-records review?
Ark. Code Ann. § 25-19-105(b)(2) is a parallel exemption for records that would violate the federal Family Educational Rights & Privacy Act (FERPA) if disclosed. The AG flagged that students' names had been redacted from some of UAFS's responsive records, presumably under § 25-19-105(b)(2) operating with FERPA. She did not opine on whether the FERPA-based redactions were necessary; she left that to the custodian and local counsel.

What's the practical takeaway for university records custodians?
Three steps in sequence. First, decide whether each responsive document is a public record at all (the threshold question, the AG's role does not reach this). Second, decide whether the document is a personnel record or evaluation record. Third, apply the right disclosure test and the right redactions. Other exemptions (FERPA, undercover officers, etc.) sit alongside the personnel/evaluation framework and may also apply.

Background and statutory framework

The standard Arkansas FOIA framework applies. Ark. Code Ann. § 25-19-103(7)(A) defines public records. § 25-19-105(b)(12) is the personnel-records exemption, applied through Young v. Rice's two-step balancing test. § 25-19-105(c)(1) is the evaluation-records exemption, applied through Thomas v. Hall's four-prong test. § 25-19-105(b)(2) is the FERPA-aligned exemption.

The procedural hook is Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which authorizes the custodian, requester, or subject to seek AG review on personnel or evaluation records. § 25-19-105(c)(3)(B) bounds the AG's review accordingly.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(2) (Supp. 2019) (FERPA-aligned exemption)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c) (employee evaluation records track and AG review scope)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B), (c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Federal statute:

• 20 U.S.C. § 1232g (FERPA)

Cases:

• Pulaski County v. Arkansas 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

Prior opinions referenced:

• Ops. Att'y Gen. 2020-002, 2008-095 (public-records-status determinations outside AG review scope)
• Op. Att'y Gen. 2019-012 (former employee's termination quarrel not a basis to withhold)
• Op. Att'y Gen. 2018-039 (resignation vs. termination is a fact question)
• Op. Att'y Gen. 2016-083 (FERPA-redaction applicability is a custodian-and-local-counsel call)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-010
March 4, 2020

David A. Curran, Associate General Counsel
University of Arkansas System
Office of the General Counsel
2404 N. University Avenue
Little Rock, AR 72207

Dear Mr. Curran:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian's attorney, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). 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 University of Arkansas at Fort Smith ("UAFS") has received a request under the FOIA for records regarding the termination of a former employee, along with any associated disciplinary records. You have attached several Bates-stamped documents that UAFS has determined are responsive to the request and that it intends to release after making certain redactions.

The subject of the records objects to the disclosure of any records. He says he was not terminated. He also says the termination was not justified. He further challenges the motives of the person he presumes submitted the FOIA request. UAFS requests my opinion regarding its determination as to the records' release.

RESPONSE

My duty under Ark. Code Ann. § 25-19-105(c)(3)(B) is to determine whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that UAFS's decision to release (as redacted) those that plainly constitute either personnel or evaluation records is consistent with the FOIA. However, it appears that the real question at issue regarding several records is whether those records meet the threshold requirement of being "public records" under the FOIA. That primary issue is outside the scope of my statutory authority of review under subsection 25-19-105(c).

DISCUSSION

[Standard discussion of FOIA general standards, the personnel-records exception under § 25-19-105(b)(12), the Young v. Rice balancing test, the standard list of items that must be redacted, the employee-evaluation exception under § 25-19-105(c)(1), and the four-prong Thomas v. Hall test. The AG noted that the threshold public-records question for several Bates-stamped pages (3, 36-39, 70-74) falls outside the scope of her review under subsection 25-19-105(c).]

III. Application.

As explained in footnote 3 above, the primary issue regarding several of the records submitted with your request for my opinion falls outside the scope of my statutory authority of review under Ark. Code Ann. § 25-19-105(c).

It is my opinion with regard to the remaining records that UAFS's decision to release them, with redactions, is consistent with the FOIA. These records qualify as either personnel records or employee-evaluation records under the above definitions. And in my opinion, the applicable tests for disclosure of the records, as redacted, are met.

Finally, the subject's objections to disclosure are not legally sufficient reasons to withhold the records. As explained above, the custodian cannot consider the subjective motive of the person requesting the records. Additionally, a former employee's objections to his or her termination are not a valid basis for withholding public records that meet the tests for disclosure under the FOIA. The records, on their face, reflect the fact of termination. And the issue of whether a former employee resigned a position or was terminated is a question of fact that cannot be resolved in the context of an Attorney General's opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General