Can Arkansas release an ADH employee’s personnel and evaluation records over his objection?

Plain-English summary

Aldo Reyes objected after the Arkansas Department of Health identified two records about him in a FOIA request concerning employee suspensions and terminations. The custodian planned to release the records with personal information redacted. After reviewing both records, the Attorney General could not say that decision was inconsistent with FOIA.

The AG classified the first record as a personnel record and found that releasing it would not be a clearly unwarranted invasion of personal privacy. The second was an employee-evaluation record. Its release required suspension or termination, a final administrative decision, a record that formed a basis for that decision, and a compelling public interest. The AG found the first three elements clear on the face of this record. On public interest, the nature of the infraction and Reyes’s position favored release; the AG lacked enough facts to assess whether there was a related public controversy. The AG therefore said the custodian had likely applied the release test properly. This was a review of two particular records, not a rule for all termination files.

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

Did the AG review the actual records?
Yes. The opinion says, “Having reviewed the records,” before separately classifying each of the two documents.

Why could the first record be released?
The AG found it was a personnel record and that disclosure would not be a clearly unwarranted invasion of personal privacy. The opinion does not disclose the record’s contents.

Why did the second record require a different test?
The AG classified it as an employee-evaluation record. Under the opinion’s FOIA test, that kind of record could be released only when all four statutory elements were met. The AG found the first three clear and the compelling-public-interest element likely satisfied on the record’s face.

Did the AG find there was a public controversy involving ADH? No. The AG said that factor was difficult to assess without more background facts. The opinion still found the custodian’s release decision likely proper based on the factors it could assess.

Were the records to be released without redactions?
No. The request described in the opinion was for the custodian’s proposed release of the two records “as redacted.” The opinion also lists categories of information that must be redacted even when a record otherwise meets the disclosure test.

Background and statutory framework

The opinion first asked whether the request reached a public entity, whether the documents were public records, and whether an exception allowed withholding. ADH was a public entity; the records it held were presumed public, and the AG had no information rebutting that presumption. The opinion then distinguished personnel records under Ark. Code Ann. § 25-19-105(b)(12) from employee-evaluation records under § 25-19-105(c)(1). It applied the personnel-record privacy balance to the first document and the four-element evaluation-record test to the second.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019)

Cases:

• 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

STATE OF ARKANSAS
THE ATTORNEY GENERAL

Opinion No. 2020-035

July 21, 2020

Aldo J. Reyes

c/o Reginald Rogers, Deputy General Counsel
Arkansas Department of Health

4815 W. Markham Street, Slot 31

Little Rock, AR 72205

Dear Mr. Reyes:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject of the requested records, 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 Arkansas Department of Health (“ADH”) has received a request under the FOIA for records of all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020. You have provided copies of two records pertaining to you that the custodian has identified as responsive to the request. You object to the release of these documents and ask whether the custodian’s decision to release them, as redacted, is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Based on the face of the records in question, I cannot say the custodian’s decision in this instance is inconsistent with the FOIA.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 * FAX (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

Aldo J. Reyes
Opinion No. 2020-035

Page 2
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 ADH, 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, given that I have no information to suggest that the presumption can be rebutted, 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

' 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 that 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. 2019).

2 Id.

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).

• 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; certificates 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 & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017).

Aldo J. Reyes
Opinion No. 2020-035
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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

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.”

® Ark. Code Ann. § 25-19-105(c)(1): “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.”

T See, e.g., Ops. Att’y Gen. 2015-072, 99-147; Watkins, ef al., at 202. 8 Ark. Code Ann. § 25-19-105(b)(12).

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

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Opinion No, 2020-035
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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. 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.!° 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.'? This ordinarily precludes the custodian from

‘© Watkins, ef a/., at 208.

"| Young, 308 Ark. at 598, 826 S.W.2d at 255.

'2 Td, 826 S.W.2d at 255.

8 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

'4 Eg, Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, e7 a/., at 207. 'S Ops. Att’y Gen. 2006-176, 2004-260, 2003-336, 98-001.

'© Ops. Att’y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

7 See Ops. Att’y Gen. 2019-047, 2018-061.

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

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 (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)(10));

• Driver’s license number and photocopy of 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).

'8 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 courts 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.

It should also be noted that 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.'? 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.2° 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).”*

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 controversy related to the agency and its employees; and (3) the employee’s

'° | will refer to this group of records as “employee-evaluation records.”

2° 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.

2! Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

» Ark. Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065.

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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” 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,°4 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.?°

III. Application.

Having reviewed the records, it appears clear from its face that the first record qualifies as a personnel record under the above definition, and that its disclosure would not constitute a clearly unwarranted invasion of personal privacy. Accordingly, the legal test for release of this record is plainly met, in my opinion.

The custodian has apparently determined that the second record qualifies as an employee-evaluation record and that it meets the test for disclosure. I believe it is clear from the face of the record that it is properly classified as an employee- evaluation record. Turning to the test for release, as explained above, this involves four elements: level of discipline, finality, basis, and a “compelling public interest” in disclosure. It appears clear the first three elements are met in this case. Thus, the inquiry focuses on whether there is a “compelling public interest” in the record’s disclosure.

?? Watkins, e¢ al., at 238-39 (footnotes omitted).

4 Td. 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”).

> Cf Op. Att'y Gen. 96-168; Watkins, ef al., at 223.

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As noted above, various factors bear on the “compelling public interest” analysis. These factors are largely questions of fact to be decided by the records custodian.° Based on the face of the record at issue, it appears the custodian has determined that the first factor—the nature of the infraction—weighs in favor of disclosure. It is not immediately apparent from the face of the record that this decision is mistaken. This office has repeatedly opined that, in certain situations, a compelling public interest exists in the disclosure of documents containing certain categories of information.”” The record reflects this type of information.

The second factor—the existence of a public controversy related to the agency and its employees—is difficult to assess because I lack sufficient background facts. The third factor—the employee’s position within the agency—likely weighs in favor of disclosure in this instance. In sum, based on the face of the second record, I believe the custodian has likely properly determined that the legal test for release is met.

In conclusion, I cannot say the custodian’s decision to release the records is inconsistent with the FOIA. The requested records appear to be public records and no exemption appears to shield them from disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General

°6 E.g., Ops. Att’y Gen. 2008-167, 2008-090.

7 E.g., Op. Att'y Gen. Nos. 2008-090 (violating administrative rules or policies aimed at avoiding conduct that undermines the public trust): 2003-257, 97-190 and 97-177 (arrests and/or convictions).