Can a state employee block release of her suspension records under Arkansas FOIA because she's afraid of harassment?

Plain-English summary

Tammy Kriesel objected when the Arkansas Department of Health planned to release a record about her in response to a FOIA request for employee investigations and discipline. The custodian proposed release with redactions. Kriesel feared the release would cause harassment to her and her family.

The Attorney General reviewed the record and classified it as an employee-evaluation or job-performance record. That classification mattered: such a record could be released only after suspension or termination, final administrative resolution, use of the record as a basis for the decision, and a compelling public interest in disclosure. The AG found the first three elements met. She said the nature of the infraction made the public interest compelling, without describing the infraction in the opinion. She therefore found the custodian’s decision to release this particular record with redactions consistent with FOIA.

The opinion also held that Arkansas law had no generalized harassment exception for otherwise disclosable employee-related public records. Kriesel’s stated fear, standing alone, was not enough to reverse the custodian’s decision.

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

Could Kriesel block the release because she feared harassment? No. The AG said Arkansas had no generalized harassment exception for an otherwise disclosable employee record, and that Kriesel’s stated objection was not a legally sufficient reason to withhold this record.

Was the record a personnel record or an evaluation record? The AG expressly classified it as an employee-evaluation record and applied that category’s four-part disclosure test.

Why did the evaluation record qualify for release?
The AG found suspension or termination, final administrative resolution, and use of the record as a basis for the decision all established. She found a compelling public interest based on the nature of the infraction, which the published opinion did not identify.

Was the proposed release unredacted?
No. The custodian proposed release with redactions, and the AG concluded that the decision to release the record “as redacted” was consistent with FOIA. The opinion did not identify the particular redactions.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(1) required four conditions before employee-evaluation records could be opened: suspension or termination, final administrative resolution, a record forming a basis for that decision, and a compelling public interest. The opinion cited Thomas v. Hall for the definition of evaluation records and explained that the custodian first had to classify the document, then apply the disclosure test. Its application addressed this one record; it did not apply the separate personnel-record privacy balance.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019)
• Ark. Code Ann. § 25-19-105(b)(12)
• 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)
• 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
LESLIE RUTLEDGE

Opinion No. 2020-036

July 21, 2020

Tammy Kriesel

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

4815 W. Markham Street, Slot 31

Little Rock, AR 72205

Dear Ms. Kriesel:

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 a copy of a record that the custodian has identified as responsive to the request, and that the custodian intends to release with redactions. You object to the release of the record based on your fear that the release will cause harassment to you and your family.

RESPONSE

Having reviewed the record in question, it is my opinion, based on the definitions and standards discussed below, that the custodian’s decision to release it as redacted is consistent with the FOIA. With regard to your stated objection, the Arkansas General Assembly has not established a generalized harassment exception to the release of otherwise disclosable employee-related public records. Accordingly, it is

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Tammy Kriesel
Opinion No. 2020-036
Page 2

my opinion that your stated objection to the release is not, standing alone, a sufficient basis for reversing the custodian’s decision.

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.4 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.

• 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,

Tammy Kriesel
Opinion No. 2020-036
Page 3

995

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.

In my opinion, the exemption that is relevant in addressing the record at issue is the one for “employee evaluation or job performance records.” Accordingly, | will limit my discussion to records of that type.

The FOIA does not define “employee evaluation or job performance records.” 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.’

requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. £.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).

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.... (plersonnel 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.”

’] will refer to this group of records as “employee-evaluation records.”

8 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.

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

Tammy Kriesel
Opinion No. 2020-036
Page 4

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 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,” 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.

' Ark. Code Ann. § 25-19-105(c)(1); Op. Att'y Gen. 2008-065. "! Watkins, ef al., at 238-39 (footnotes omitted).

"2 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”).

Tammy Kriesel
Opinion No. 2020-036
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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.

I believe it is clear from the face of the record at issue that it qualifies as an employee-evaluation record under the above definition. And in my opinion—also based on the face of the record—it meets the test for disclosure set out above. The first three elements are met. And it is sufficient to state that the public’s interest in disclosure is compelling when considering the nature of the infraction.

Your objection to the record’s release is based on your fear that the release will cause harassment to you and your family. However, as this office has previously observed, the Arkansas General Assembly has not established a generalized harassment exception to the release of otherwise disclosable employee-related public records.'* It is up to the legislature to clearly fashion such an exception if the legislature sees fit.

Accordingly, your stated objection is not a legally sufficient reason to withhold the record. In my opinion, the custodian’s decision to release the record, as redacted, is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General

'3 Cf Op. Att’y Gen. 96-168; Watkins, e¢ al., at 223.

4 Ops. Atty Gen. 2019-048, 2015-011, 2013-080, 2012-111).