Could Benton release a former employee’s misconduct investigation records under Arkansas FOIA if a minor was mentioned?

Plain-English summary

Benton’s city attorney asked the Attorney General to review the planned release of several documents responsive to a FOIA request for misconduct and internal-affairs records about a former city employee. The city proposed release without redactions, and the subject objected. The opinion identifies no count of documents and does not mention audio or video recordings.

After reviewing the records, the AG found the custodian had properly classified most of them as employee-evaluation records. She could not say the decision to release those records under the applicable four-part test was incorrect. Her overall conclusion was qualified: the custodian’s decisions were generally consistent with FOIA.

One document, titled “Narrative,” appeared to summarize an interview conducted in a criminal investigation. If so, classifying it as a personnel record was inconsistent with FOIA. The AG identified the separate law-enforcement investigation provision, Ark. Code Ann. § 25-19-105(b)(6), but said it fell outside the employee-record review she was authorized to perform.

Footnote 28 noted that some records concerned an unnamed minor whose identity did not appear ascertainable from the records’ face. If other information could identify the minor, the AG said the custodian may wish to consider the minor’s possible privacy interests before release. She cited McCambridge for the possibility that constitutional privacy can supersede FOIA disclosure requirements for constitutionally protectable information. She did not decide that this minor had such a right or require a particular redaction.

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 approve release of every document?
No. She found the custodian’s decisions generally consistent with FOIA, but questioned the “Narrative” document’s classification and did not assess the separate criminal-investigation exemption.

Were the records audio or video recordings?
The published opinion calls them “several documents” and does not identify any as recordings. It gives no basis for treating this opinion as a ruling on audio or video evidence.

What was different about the “Narrative”?
It appeared to summarize a criminal-investigation interview, not an employee evaluation. The AG said a personnel-record classification would be inconsistent if that description was accurate, and pointed to the separate law-enforcement investigation provision without deciding its application.

Did the AG require the custodian to withhold information about a minor? No. Footnote 28 said the minor did not appear identifiable from the records’ face. If outside information could identify the minor, the custodian may wish to consider possible privacy interests before release.

Could one document be both a personnel record and an evaluation record? No. Footnote 27 said the two categories were distinct under Arkansas FOIA and carried different disclosure tests.

Background and statutory framework

The AG reviewed the city’s employee-related records decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). Employee-evaluation records were governed by § 25-19-105(c)(1)’s four-part release test; personnel records had a separate privacy balance. The opinion distinguished those categories from potential criminal-investigation records under § 25-19-105(b)(6), which the AG said were outside this review. The minor-privacy issue was raised conditionally in footnote 28, rather than resolved on the facts provided.

Citations

Statutes:

• Ark. Code Ann. § 25-19-105(b)(6) (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:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)

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. 2020-051

October 5, 2020

Brent D. Houston, Esq.
City Attorney

1230 Ferguson Drive
P.O. Box 1500
Benton, AR 72018

Dear Mr. Houston:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the attorney for the custodian, is made pursuant to 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 City of Benton has received a request under the FOIA for “records, allegations of misconduct, and internal affairs investigative files” pertaining to a former city employee. You have attached several documents that you believe are responsive to the request and that you intend to release without redactions. The subject of the records objects to this release. You ask whether your decision to release these records is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the custodian has properly classified most of the records as the former employee’s evaluation records.' The custodian has

' With regard to a record entitled “Narrative,” a record the custodian had classified as a personnel record, it appears from the information you have provided that this record is a summary of an interview that was conducted as part of criminal investigation. In such a case, the classification of

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City Attorney
Opinion No, 2020-051
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determined that these evaluation records meet the applicable test for disclosure; and from the face of the records that have been provided to me, this decision appears to be consistent with the FOIA. Depending upon all of the surrounding circumstances, however, some third-party privacy concerns may merit consideration.

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 in this instance. The request was made to the City of Benton, 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.

the record as a personnel record would be inconsistent with the FOIA. In that regard, please see Op. Att’y Gen 2000-225, which discusses the provision regarding undisclosed and ongoing law- enforcement investigation records. That provision, Ark. Code Ann, § 25-19-105(b)(6) (Supp. 2019), is outside of the scope of my review under subdivision 25-19-105(¢)(3)(B)(i).

? 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),

3 Td.

“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).

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City Attorney
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I. 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 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

> 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. £.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).

© 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.”

T Ark. Code Ann. § 25-19-105(¢)(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.”

5 See, ¢.g., Ops. Att’y Gen. 2015-072, 99-147; Watkins, ¢ al., at 202.

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City Attorney
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determined by reviewing the record itself. Ifa 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 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.

9 Ark. Code Ann. § 25-19-105(b)(12).

10308 Ark. 593, 826 S.W.2d 252 (1992).

"| Watkins, ev a/., at 208.

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

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

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

'S E.g., Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, ef a/., at 207.

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City Attorney
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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 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:

e 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));

e¢ Employee personnel number (Ops. Att’y Gen. 2014-094, 2007-070);

e Marital status of employees and information about dependents (Op. Att’y Gen. 2001-080);

e Dates of birth of public employees (Op. Att’y Gen. 2007-064); e Social security numbers (Ops. Att’y Gen. 2006-035, 2003-153);
¢ Medical information (Op. Att’y Gen. 2003-153);

16 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. '8 See Ops. Att’y Gen. 2019-047, 2018-061.

'S 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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City Attorney
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e Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann, § 25-19-105(b)(10));

e Driver’s license number and photocopy of driver’s license (Ops. Att’y Gen. 2017-125, 2013-090);

e Insurance coverage (Op. Att’y Gen. 2004-167);

e Tax information or withholding (Ops. Att’y Gen. 2005-194, 2003-385); e Payroll deductions (Op. Att’y Gen. 98-126); and

e Banking information (Op. Att’y Gen. 2005-194),

b. Employee-evaluation exception.

The second potentially relevant exception is for “employee evaluation or job performance records,” which the FOIA likewise does not define.2° 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.”

{fa 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

201 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.

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City Attorney
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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.”4

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.

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.°

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

25 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”).

6 Cf. Op. Atty Gen. 96-168; Watkins, ev al., at 223.

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City Attorney
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III. Application.

Having reviewed the records, it is my opinion that the custodian’s decision to classify most of the records at issue as the former employee’s evaluation records is consistent with the FOIA.2” Moreover, I cannot say that the custodian’s decision to release the evaluation records, applying the appropriate test for that type of record as described above, is incorrect.

In sum, based on the records provided to me and your explanation of the custodian’s decisions, it is my opinion that the custodian’s decisions are generally consistent with the FOIA.?®

Sincerely,

LESLIE RUTLEDGE
Attorney General

27 See supra n.1. In addition, in your request for my opinion, you state that the custodian had classified the records as both the former employee’s personnel records and evaluation records. Clearly, for the purposes of the FOIA, this cannot be so. Personnel records are distinct from employee-evaluation records under the FOIA. Personnel records must be disclosed unless the balancing test set out above is met, while evaluation records must not be disclosed unless the four- part test for disclosure is met.

28 Some of the records at issue contain information concerning an unnamed minor. It does not appear from the face of the records that the minor’s identity can be determined. But if there is information of which I am unaware that would identify the minor, then the custodian may wish to consider the minor’s possible privacy interests before releasing the records. In McCambridge v City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), the Arkansas Supreme Court recognized that a constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to constitutionally protectable information.