Did Little Rock have to release a city employee's evaluation records when the underlying investigation was still ongoing?

Plain-English summary

A requester sought a Little Rock employee’s personnel file, including evaluation records. The city released other records but withheld evaluation records as part of an ongoing investigation. The requester’s lawyer argued that the employee had spoken to the press and released some records herself, supposedly waiving FOIA’s protections.

The Attorney General held that withholding was consistent with Arkansas FOIA. The evaluation-records provision required a suspension or termination proceeding to reach a final administrative resolution before the records could be disclosed. The AG understood the city’s description of an ongoing investigation to mean no such final resolution had occurred. She therefore found the threshold condition for release unmet.

The employee’s public statements did not let the custodian release an exempt evaluation record. The AG said FOIA exemptions were mandatory, and cited Gillespie v. Brewer only to distinguish a release made pursuant to a court order from voluntary disclosure by a custodian.

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 Little Rock have to release the evaluation records? No. The AG concluded the custodian had correctly withheld them at that time because the required final administrative resolution was absent.

Did the employee’s comments to the press waive confidentiality? No. The opinion said an employee’s actions did not give the custodian discretion to disclose exempt evaluation records.

What conditions governed release?
The opinion set out four: suspension or termination, final administrative resolution, records forming a basis for that decision, and a compelling public interest. The AG stopped at the unmet threshold condition in this case.

Why did the requester cite Gillespie v. Brewer?
The AG said that case involved release after a court order and a mooted appeal. It did not give a custodian discretion to disclose records that failed FOIA’s release test.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(1) imposed the four-part test for employee-evaluation records. The AG treated the ongoing investigation as showing the absence of final administrative resolution of a suspension or termination proceeding. She said the custodian could not choose to release a record while it remained exempt, regardless of what its subject had said publicly.

Citations

• Ark. Code Ann. § 25-19-105(c)(1)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Gillespie v. Brewer, 2019 Ark. App. 275, 577 S.W.3d 59

Source

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

Original opinion text

Opinion No. 2020-057
December 14, 2020
Mr. Christopher W. Burks
WHLaw
1 Riverfront Place, Suite 745
North Little Rock, AR 72114
Dear Mr. Burks:
STATE OF ARKANSAS
THE ATTORNEY GENEl~AL
LESLIE RUTLEDGE
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as attorney for the requester of the 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 your client has sent the City of Little Rock a request under the FOIA for "all of [an employee's] personnel file records, including any employee evaluation or job performance evaluation documents." You state that the "records received don't include any employee evaluation/job performance records" and you assert that the records should have been released because the subject "has mooted the protections of FOIA" by releasing some records and speaking to the press. According to correspondence to you from the City of Little Rock, the custodian has determined that "employee evaluation or job performance records ... are not releasable as [they are] part of an ongoing investigation." You ask whether the custodian's decision to withhold the requested employee-evaluation records is consistent with the FOIA. RESPONSE It is my opinion that the custodian's decision is consistent with the FOIA. 323 CENTER STR EET. SUITF 200 •LITTLE ROCK, ARKJ\NSJ\S 72201 TELEPI IONE (50 I) 682-2007 • F /\X (50 I) 682-8084 INTERNET W EBSITE. http://www.ag.state.ar.us/ Mr. Christopher W. Burks Opinion No. 2020-057 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 City of Little Rock, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records.1 Because the records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 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 1 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 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; 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 Acr 205-06 (Arkansas Law Press, 6th ed., 2017). Mr. Christopher W. Burks Opinion No. 2020-057 Page 3 divided into two mutually exclusive groups: "personnel records"5 or "employee evaluation or job performance records."6 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. Because the relevant exception in this instance appears to be the one for employee-evaluation records, I will limit my discussion to records of that type. The FOIA itself does not define "employee evaluation or job performance records. "7 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. 8 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation or misconduct. 9 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);
   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." 6 Ark. Code Ann.§ 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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 ifthere is a compelling public interest in their disclosure." 7 I 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. 9 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. Mr. Christopher W. Burks Opinion No. 2020-057 Page 4
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).10
   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: (I) 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. 11 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, 12 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. 10 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. 11 Watkins, et al., at 238-39 (footnotes omitted). 12 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''). Mr. Christopher W. Burks Opinion No. 2020-057 Page 5 The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges m the employee/employer relationship.13 III. Application. As explained above, suspension or termination is a necessary, threshold condition for the release of employee-evaluation records. The custodian in this case has stated that the requested employee-evaluation records are "part of an ongoing investigation." I take it this means there has been no final administrative resolution of any suspension or termination proceeding. It thus seems clear that the threshold condition for the release of employee-evaluation records is not met. You assert that the subject of the records has somehow mooted or waived the protections of FOIA. Your argument presupposes that the custodian has discretion to consider whether employee-evaluation records should be disclosed, even though the test for disclosure under subsection 25-19-105( c) has not been met. However, exemptions under the FOIA are mandatory. 14 The custodian does not have discretion to make available to the public those records that fall within an exemption. 15 The custodian is prohibited from disclosing an exempt employee- evaluation record to anyone other than the subject of the record.16 13 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. 14 Ops. Att'y Gen. 2015-056, 2009-161, 96-386, 91-374. 15 Id.; Watkins, et al., at 119. The case cited in your request for my opinion-Gillespie v. Brewer, 2019 Ark. App. 275, 577 S.W.3d 59-is inapposite to the issue at hand. That case involved a custodian's release of records pursuant to a cowt order. There, rather than requesting a stay, the custodian released records after being ordered to do so by the circuit court. The Court of Appeals held that this mooted the claim of exemption on appeal. The case does not stand for the proposition that a custodian has discretion to disclose records where the test for disclosure under the FOIA is not met. 16 See Op. Att'y Gen. 2020-004 ("The subject of the record cannot 'authorize,' as you put it, the custodian to disclose an exempt record in his behalf."). Mr. Christopher W. Burks Opinion No. 2020-057 Page 6 In conclusion, therefore, it is my opinion that the custodian has correctly decided to withhold the requested employee-evaluation records from disclosure at this time. Sincerely,
   ~~~cc;:>- L. //?..A'-j?
   LESLIE RUTLEDGE
   Attorney General