If a parent FOIAs a school for an employee's complaints and emails, what gets handed over and what stays private?

Plain-English summary

A FOIA requester asked the Pulaski County Special School District for two things: every complaint about any employee at Crystal Hill Elementary School over the prior three years (regardless of investigation outcome), and the personnel file of teacher Karla Lasiter plus three years of emails and attachments from any official-business account she used. The custodian indicated that some records would be released. Lasiter, as the subject, asked the AG whether the planned release was consistent with the FOIA.

Then-Attorney General Leslie Rutledge could not opine on specific records (the AG had not seen any of them), but laid out the controlling framework. Two issues required special care.

First, complaints split into two categories. Complaints "created by or at the behest of the employer to evaluate" the employee are employee-evaluation records under § 25-19-105(c)(1). They cannot come out unless the employee was suspended or terminated, the proceeding has reached final administrative resolution, the records were a basis for the discipline, and there is a compelling public interest. Unsolicited complaints, whether internal or external, are personnel records subject to the Young v. Rice balancing test under § 25-19-105(b)(12). Important footnote from the opinion: an unsolicited complaint that later gets used in an internal investigation does not automatically transform into an evaluation record (citing Op. Att'y Gen. 2012-001).

Second, emails on a public account are not all public records. Per the Arkansas Supreme Court in Pulaski Cty. v. Ark. Democrat-Gazette (2007), the FOIA's public-record presumption is rebuttable. An email on an official account is a public record only if its contents "constitute a record of the performance or lack of performance of official functions." That is a fact-specific inquiry; personal emails do not become public records simply because they were sent on a public computer.

Currency note

This opinion was issued in 2021. 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 does it matter whether a complaint was solicited?
Because the legal test changes entirely. A solicited complaint (the employer wrote it up or asked for it as part of evaluation) is treated as an evaluation record and is locked down unless all four prongs of § 25-19-105(c)(1) are met. An unsolicited complaint (a parent emailed the principal, an anonymous tip arrived) is a personnel record and gets the Young v. Rice balancing test, which tilts toward disclosure unless privacy interests outweigh public interests.

A parent's complaint goes into an investigation file. Does that change its category? No. The opinion's footnote, citing Op. Att'y Gen. 2012-001, says merely using an unsolicited complaint in an internal investigation does not transform it into an evaluation record. The category is set when the document is created.

The teacher used a school email account for personal exchanges. Are those emails subject to FOIA? Not automatically. Pulaski Cty. v. Ark. Democrat-Gazette settled that the public-record presumption is rebuttable, and emails do not become public records merely by being sent on a public system. The custodian must look at each email's content to see whether it documents the performance of official functions. The custodian cannot delegate that classification to the employee, but per Op. Att'y Gen. 2005-139, the custodian may seek the employee's input to resolve factual questions.

What gets redacted even from a disclosable record?
The opinion repeats the standard categorical redactions: personal contact information (home address, personal phone, personal email under § 25-19-105(b)(13)), employee personnel number, marital status and dependents, date of birth, social security number, medical information, undercover-officer identifiers (§ 25-19-105(b)(10)), driver's license, insurance coverage, tax information, payroll deductions, and banking information.

Does the requester's identity or motive matter?
Generally no. The objective test asks whether the records shed light on government workings; subjective motive does not factor in unless it surfaces a previously unseen objective public interest.

Background and statutory framework

The FOIA's three-element disclosure test asks: (1) is the entity covered, (2) is the document a public record, and (3) does any exception apply. The first two are usually satisfied. The third is where the work happens.

For employees of public schools, the most active exceptions are the personnel-records exception at § 25-19-105(b)(12) (governed by the balancing test in Young v. Rice, with a thumb on the scale toward disclosure) and the employee-evaluation exception at § 25-19-105(c)(1) (governed by the four-prong test from Thomas v. Hall and the AG's prior opinions). The classification step matters more than the disclosure-test step, because a misclassification produces the wrong rule.

Email handling adds a third moving part. The opinion's reading of Pulaski County (2007) and Watkins, et al., is that an email's "nature and content," not its delivery channel, controls. A custodian who treats every email on an official account as automatically public is overdisclosing; one who treats every email as automatically protected is underdisclosing. The custodian has to look.

Citations

State statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (public record definition)
• Ark. Code Ann. § 25-19-105(a)(1)(A) (general right of inspection)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identifying 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/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Pulaski Cty. v. Ark. 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

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 6th ed., 2017)

Prior AG opinions:

• Op. Att'y Gen. 2019-036, 2019-047
• Op. Att'y Gen. 2018-038, 2018-061, 2018-087, 2018-125
• Op. Att'y Gen. 2017-053, 2017-125
• Op. Att'y Gen. 2016-055
• Op. Att'y Gen. 2015-072
• Op. Att'y Gen. 2014-094
• Op. Att'y Gen. 2013-090
• Op. Att'y Gen. 2012-001, 2012-014, 2012-149
• Op. Att'y Gen. 2011-107
• Op. Att'y Gen. 2009-067
• Op. Att'y Gen. 2008-004, 2008-065
• Op. Att'y Gen. 2007-064, 2007-070, 2007-225
• Op. Att'y Gen. 2006-035, 2006-038, 2006-176
• Op. Att'y Gen. 2005-030, 2005-095, 2005-139, 2005-194
• Op. Att'y Gen. 2004-167, 2004-260
• Op. Att'y Gen. 2003-073, 2003-153, 2003-336, 2003-385
• Op. Att'y Gen. 2001-022, 2001-080, 2001-112
• Op. Att'y Gen. 99-147
• Op. Att'y Gen. 98-001, 98-006, 98-126
• Op. Att'y Gen. 97-222, 97-368
• Op. Att'y Gen. 96-168
• Op. Att'y Gen. 95-351
• Op. Att'y Gen. 94-198, 94-306
• Op. Att'y Gen. 93-055

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. 2021-019

March 23, 2021

Mrs. Karla P. Lasiter
c/o Jessica Duff, Executive Director of Communications
Pulaski County Special School District
925 East Dixon Road
Little Rock, AR 72206

Dear Mrs. Lasiter:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject 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 the Pulaski County Special School District ("PCSSD") has received a request under the FOIA for "copies of any complaints made about any employee at Crystal Hill Elementary School in the last three (3) years, without regard to the outcome of any investigation or disciplinary action" and a "copy of the personnel files of Karla Lasiter and all emails and attachments from any email account she use[d] for official business. Time frame for emails i[s] the last three (3) years." The custodian has determined that certain records are subject to disclosure, though I am unaware of any attempt to identify or characterize any specific record(s). You object to the release of the requested records, as well as any personal information that might adversely affect you. You ask whether the custodian's decision to release the aforementioned records is consistent with the FOIA.

32 3 CENTE R STR EET. SU IT E 200. L rrTu: R OC K, AR Ki\NSi\S 72201 TELE PH ONE (5 01 ) 682-2007 • F i\ X (501) 682-8084 I NTERNET W EBS ITE. http ://www.ag.stat e. ar.u s/

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 2

RESPONSE

Because I have not seen any records that the custodian has deemed responsive to the instant FOIA request, I cannot directly opine about whether any specific document must be released or withheld or the need to redact any specific piece of information from an otherwise releasable document. Accordingly, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "employee evaluation or job performance" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 PCSSD, 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 has been or can be rebutted, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure. 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. (Pulaski Cty. I), 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).

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 3

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 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

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). 5 Ark. Code Ann.§ 25-19-105(b)(l2): "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 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.

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 4

determined by reviewing the record itself. If a 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. " 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 minim is 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 Moreover, whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15

8
Ark. Code Ann.§ 25-19-105(b)(l2).

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.

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 5

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. 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 )(1 O));

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 cou1is 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).

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 6

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

• 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 ( 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. 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

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.

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 7

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:

[l]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. 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.

Because I have not reviewed the specific records that the custodian intends to release, I am unable to definitively opine on whether the custodian's decision in this instance is consistent with the FOIA. As set out above, in determining whether a requester is entitled to a public employee's personnel or employee-evaluation

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.

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 8

records, the custodian must review the requested records, properly classify the documents, and apply the appropriate disclosure test(s).

There are additional considerations, however, that a custodian must take into account when certain types of records, such as emails, are requested. Most importantly, the custodian must first determine whether any given email is, in fact, a public record as defined by the FOIA. 26 Accordingly, a custodian must, in the first instance, review the requested emails to determine whether any specific email falls outside of the definition of a public record. 27

Additionally, with respect to the requested complaints "without regard to the outcome of any investigation or disciplinary action," the custodian must take care to differentiate between types of complaints. As stated above, a complaint "created by or at the behest of the employer to evaluate an employee" falls under the employee-evaluation classification. 28 In such cases, the complaint cannot be released unless all four parts of the test for the disclosure of employee-evaluation records are met. 29

With respect to "unsolicited" complaints (that is, complaints not created by or at the employer's behest, whether internal complaints or external ones), however, this

26
Supra n. l. Specifically, the inquiry in such cases turns on whether the contents of the email "constitute a record of the performance or lack of performance of official functions" (emphasis added). As the Arkansas Supreme Cou11 has settled, not every email created on or kept or stored on a public computer is, per se, a public record. Pulaski Cty. I, supra, 3 70 Ark. at 440-41, 260 S. W.3d at 722 ("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). The Court explained that to make such a determination requires a fact- specific inquiry. Id. at 444, 260 S.W.3d at 724. See also Watkins, et al., at 510 ("The nature and content of an e-mail message-not the manner in which it was communicated-is controlling.").

27
Op. Att'y Gen. 2005-139 (opining that the custodian has that duty and cannot delegate to the individual employee to determine what is public and what is personal, but adding that the custodian may seek the employee's assistance to provide context or other necessary information to resolve any factual questions).

28
Supra text accompanying n.19-21.
29
Supra text accompanying n.22.

Mrs. Karla P. Lasiter
c/o Jessica Duff, Exec. Dir. Of Comm.
Opinion No. 2021-019
Page 9

office has long maintained that those are personnel records subject to the test for the disclosure of records of that type. 30

Sincerely,

""'::'.;~=~;:::>- L . / .,;;;>1--fa
LESLIE RUTLEDGE
Attorney General

30
Ops. Att'y Gen. 2018-038, 2017-053, 2012-149 (and opinions cited therein). It should be noted that merely because an unsolicited complaint is later used in an internal investigation of an employee does not transform the record into an employee-evaluation record. Op. Att'y Gen. 2012- 001.