Could Little Rock release a complainant's statement while withholding another employee's evaluation records?

Plain-English summary

Little Rock received a FOIA request for a complete copy of an internal complaint filed by the requester. The records custodian proposed releasing the decision letter sent to the complainant and the complainant's recorded statement. She proposed withholding the remaining records as evaluation records of another employee because, according to the city's correspondence, the complaint had not reached an administrative resolution resulting in suspension or termination.

After reviewing the records, the AG agreed that the decision letter and recorded statement were the complainant's own personnel records and should be provided to that requester. Based on the face of the remaining records and the limited facts, she said the custodian's evaluation-record classification appeared consistent with FOIA. If the stated absence of a final resolution leading to suspension or termination was correct, withholding those records was consistent with FOIA. The AG expressly tied her conclusion to the records and facts before her.

The opinion explains the two release tests. A personnel record is generally open unless disclosure would be a clearly unwarranted invasion of personal privacy. An employee-evaluation record requires a final suspension or termination proceeding, use of the record as a basis for that decision, and a compelling public interest in disclosure. A custodian must classify each record and then apply the corresponding test.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before relying on its rules or procedures.

Common questions

Could the complainant receive the decision letter and recorded statement? Yes. The AG reviewed them and agreed they were the complainant's own personnel records that must be provided to that requester.

Why were the remaining records withheld?
On their face and the limited facts, they appeared to be another employee's evaluation records. The city reported that the complaint had not resulted in a final administrative suspension or termination. The AG said withholding was consistent with FOIA if that account was correct.

Does this decide how every internal complaint file must be released? No. The AG reviewed particular records and expressly based her classification on their face and the limited facts before her. Other records require their own classification and release analysis.

Can a complainant's own access to records affect this analysis? Yes. The opinion cites Ark. Code Ann. § 25-19-105(c)(2), which makes exempt personnel or evaluation records available to the person about whom they are maintained. The AG said the identified decision letter and recorded statement were the requester's own records.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed the custodian to request AG review. The opinion treated personnel and evaluation records as separate categories with different disclosure tests. For the records it examined, the AG agreed with the proposed release of the complainant's own records and conditionally agreed with withholding another employee's evaluation records.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records)
• Ark. Code Ann. § 25-19-105(c)(2) (subject access)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• 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
Tt-m ATTORNEY GEN ERAL
LESLIE R UTLEDGE

Opinion No. 2021-013

January 25, 2021

Shella A. Evans Ed.D., Manager
Labor and Employee Relations Division
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Evans:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as records custodian, 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 City of Little Rock has received a request under the FOIA for "a complete copy of an internal complaint filed by" the complainant. You have attached documents that you believe are responsive to the request and that you intend to release, stating that they are the requester's personnel records. Other records you have presented for my review are ones you have classified as evaluation records of another employee that are not subject to disclosure under the FOIA because the internal complaint has not reached an administrative resolution that has resulted in suspension or termination . You ask whether your decisions to release only the records submitted by the complainant and withhold the remaining records is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the face of the records and pursuant to the definitions and standards discussed below, that your decisions regarding the records at issue appear to be consistent with the FOIA. I concur with your decision to release the decision letter sent to the complainant and the

323 CENT ER STR EET. SU ITE 200 •LI TTL E R OC K , A RKANSAS 7220 I TELEP HONE (501 ) 682-2007 • FAX (501) 682-8084 I NT ERNET W EBS ITE . http ://www.ag.s tate.a r.us/

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complainant's recorded statement as the complainant's own personnel records. As to the remaining records, based on the face of the records and the limited facts before me, it appears that your classification of those records as another employee's evaluation records is consistent with the FOIA.
Finally, based on your correspondence that "the internal complaint has not reached an administrative resolution that has resulted in suspension or termination[,]" the decision to withhold those records from disclosure is consistent with the FOIA.

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 ("City"), 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 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

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).

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employees' personnel files. 4 For purposes of the FOIA, these items can usually be 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.
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. 7 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,

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; ce1iificates 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). 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)(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." 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

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then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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. 10

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. 11 If the privacy interest is merely de minim is, 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. 12 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. 13 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. 14

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15 Additionally, a requester's identity or motive for making a request under the FOIA

8
Ark. Code Ann. § 25-19-105(b )( 12).

9
308 Ark. 593, 826 S.W.2d 252 (1992).

10
Watkins, et al., at 208.

11
Young, 308 Ark. at 598, 826 S.W.2d at 255.

12
Id., 826 S.W.2d at 255.

13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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is generally irrelevant as to whether a non-exempt public record must be released. 16 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. 17 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. 18

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)(l3));

• 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)(l0));
• Driver's license number and photocopy of driver's license (Ops. Att'y Gen.
  2017-125, 2013-090);

16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

17
See Ops. Att'y Gen. 2019-047, 2018-061.

18
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 cou11s 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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• 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).
  b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 19 But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (I) 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

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). 22

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:

19
I will refer to this group of records as "employee-evaluation records."

20
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.

21
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

22
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

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[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. 23

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, 24 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 m the employee/employer relationship. 25

III. Application.

Having reviewed the records at issue, it is my opinion that the decision to release the records you have identified as disclosable to the requester is consistent with the FOIA. These records must be provided to the requester because they are the requester's own records. 26

23
Watkins, et al., at 238-39 (footnotes omitted).

24
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").

25
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

26
See Ark. Code Ann.§ 25-19-105(c)(2) (providing that "[a]ny personnel or evaluation records exempt from disclosure shall nonetheless be made available to the person about whom the records are maintained .... "). See also Ops. Att'y Gen. 2016-112, 2012-117.

Shella A. Evans Ed.D.
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Regarding the remaining records, based on the face of the records and the limited facts before me, they appear to be the evaluation records of another employee. If, as you relate in your correspondence, the four-part test set out above for disclosing evaluation records has not been met-to wit, there has not been a final administrative resolution that has led to a suspension or termination-then, in my opinion, withholding those records from disclosure would be consistent with the FOIA.

Sincerely,

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LESLIE RUTLEDGE
Attorney General