When the Arkansas Department of Health releases a discipline file on a high-ranking employee, is that consistent with FOIA?

Plain-English summary

Bradley Planey, a former Arkansas Department of Health (ADH) employee, asked AG Leslie Rutledge to block release of three records about his suspension or termination. ADH had received a FOIA request for "all investigations, complaints, or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020," and the custodian intended to release the three responsive records about Planey, with redactions of personal information.

Unlike the parallel Wylie opinion (2020-039), Planey did submit the records to the AG. So the AG could conduct a real review and not just recite standards.

The first record was clearly a personnel record. As redacted, releasing it would not constitute a clearly unwarranted invasion of personal privacy under the Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test. The personnel-records release test was satisfied.

The second record was mostly a personnel record (and like the first, contained no information rising to the level of a clearly unwarranted privacy invasion), but it contained a handwritten notation that qualified as employee-evaluation material. The AG split the analysis: the personnel-records portions were clearly disclosable, while the handwritten notation went into the evaluation-records bucket.

The third record was an evaluation record in its entirety. Under Ark. Code Ann. § 25-19-105(c)(1), evaluation records are released only if all four prongs are met: level of discipline (suspension or termination), finality (final administrative resolution), basis (records formed a basis for the decision), and compelling public interest. The first three prongs were clear from the records themselves. The compelling-interest prong required closer attention.

The AG accepted the custodian's apparent determination that two of the three compelling-interest factors weighed in favor of disclosure: the nature of the infraction and the employee's position within the agency. The AG noted Planey's "fairly high-ranking" position. The third factor (existence of a public controversy related to the agency) was harder to assess from the limited record, but the AG did not need to reach it because the other two factors did the work. Even though the records did not "provide detailed information" about the infraction, the nature of the infraction combined with Planey's seniority gave rise to a compelling public interest in disclosure.

Conclusion: the custodian's decision to release all three records, as redacted, was not inconsistent with FOIA. The records were public records and no exemption shielded them from disclosure under the applicable tests.

The opinion is one of the cleaner examples of how the four-prong evaluation-records test functions when applied to actual documents. Read alongside the Watkins/Peltz-Steele/Steinbuch FOIA treatise, the AG's reasoning shows how rank within the bureaucracy can supply the public-interest weight needed for disclosure even when the substantive details of the infraction are limited.

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

Why did Planey lose this challenge when other employees might have won similar ones?
Because of his rank. The compelling-public-interest test under Ark. Code Ann. § 25-19-105(c)(1) is more easily met when the employee involved is high-ranking. The same documents about a rank-and-file employee might not have crossed the compelling-interest threshold.

What does 'compelling public interest' actually require?
Three factors per the leading FOIA commentary: (1) nature of the infraction (especially violations of public trust or gross incompetence), (2) existence of a public controversy related to the agency and its employees, (3) employee's position within the agency. The factors don't have to all weigh in favor of disclosure, but at least one strong factor (or a combination) typically must.

Could one record be classified as both a personnel record and an evaluation record?
Yes, in part. The second record had a personnel-record body plus a handwritten evaluation-record notation. The AG handled this by analyzing each portion under its applicable test. As long as both tests are satisfied for their respective portions, the record can be released as a whole.

What about Planey's privacy interest?
Considered and outweighed. Even when records contain information of a personal nature, the Young v. Rice balancing test (with the thumb on disclosure) plus the four-prong evaluation-records test typically result in release for substantiated discipline cases involving senior officials. Privacy interests still mandate the standard redactions (DOB, SSN, addresses, etc.) but do not block release of the substance.

What happened with the public-controversy factor?
The AG could not assess it from the limited information available, but the other two factors (nature of infraction plus rank) supplied enough weight to support release. The opinion is a good illustration of how the three factors are weighed individually and do not all have to point the same way.

What does this mean for ADH and similar state agencies?
That the FOIA framework can result in disclosure of substantiated discipline records about senior officials even when the underlying conduct details are sparse, when rank and the nature of the infraction provide enough public interest. The agency should expect such releases when these factors line up.

Background and statutory framework

Same framework as Op. Att'y Gen. 2020-048, 2020-049, 2020-051, 2020-052, and 2020-039: Ark. Code Ann. § 25-19-105(b)(12) for personnel records, § 25-19-105(c)(1) for evaluation records, with Young v. Rice and Thomas v. Hall as the controlling precedents. Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is the AG-review authority. Op. Att'y Gen. 2003-381 had previously confirmed that records "created by or at the behest of the employer in connection with the investigation of an employee" are evaluation records.

The compelling-public-interest factors come from the leading commentary by Watkins, Peltz-Steele, and Steinbuch (The Arkansas Freedom of Information Act, 6th ed. 2017, at 237-39). The AG and Arkansas courts have consistently used these factors to evaluate the fourth prong of the evaluation-records release test.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• 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)(1) (employee-evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

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 include Op. Att'y Gen. 2003-381 (records created at employer's behest as evaluation records) and Op. Att'y Gen. 2008-065 (compelling public interest factors).

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. 2020-038
July 23, 2020
Bradley Planey
c/o Reginald Rogers, Deputy General Counsel
Arkansas Department of Health
4815 West Markham Street,
Little Rock, AR 72205-3867

Dear Mr. Planey:

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).

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 three records pertaining to you that the custodian has determined are subject to release after redacting certain personal information. You object to the release of these records and ask whether the custodian's decision to release them 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 to release them as redacted is inconsistent with the FOIA.

DISCUSSION

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) apply.]

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, as redacted, would not constitute a clearly unwarranted invasion of personal privacy. Accordingly, the legal test for release of this record is plainly met.

Regarding the second record, except for the handwritten notation, this record is a personnel record. Because it contains no information that would rise to the level of a "clearly unwarranted invasion of personal privacy" if disclosed, it is clearly subject to disclosure.

The notation on the second record and the third record in its entirety are properly classified as employee-evaluation records. 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 records' disclosure.

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. In this case, the custodian has apparently determined that the first and third factors, the nature of the infraction and the employee's position within the agency, weigh in favor of disclosure. It is not immediately apparent from the face of the records that this decision is mistaken. Although the content of the documents in question do not provide detailed information, the nature of the infraction likely gives rise to a "compelling public interest" when viewed in conjunction with the public's interest in the actions of the agency with regard to this fairly high-ranking employee.

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.

In sum, based on the face of the second and third records, 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 three records at issue is inconsistent with the FOIA. The records appear to be public records and no exemption appears to shield them from disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General