What records about a former Russellville School District employee can be released after he was placed on administrative leave and then terminated?

Plain-English summary

Russellville School District planned to release records concerning a former employee's 2020–2021 employment, administrative leave, and termination. Its lawyer asked the AG to review the records with proposed redactions. The AG had the records, but the request did not state how the custodian had classified each one, so she based her analysis on a stated supposition about their categories.

The AG found the employee's 2020 evaluation was an evaluation record. The discipline, finality, and basis elements of the release test appeared met. She said the employee's high position likely created a compelling public interest in that record, so she could not say release was inconsistent with FOIA. Other evaluations from 2001 through 2019 should be withheld entirely if they did not form a basis for the suspension or termination; heavy redaction would not make them releasable.

The AG agreed that the remaining records appeared to be personnel records and could be released, but identified missing redactions for date of birth, payroll deductions, financial institutions, and marital status. A driver's-license photocopy had to be withheld in full. She questioned some redactions of job references' addresses and could not assess fully redacted emails without knowing their contents.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before applying its disclosure rules.

Common questions

Did the AG approve release of the 2020 evaluation?
She said she could not find that decision inconsistent with FOIA. The first three release elements appeared met, and the former employee's high position likely generated a compelling public interest. She described the interest determination as fact dependent.

Could the district release older evaluation records with heavy redactions? Not if they did not form a basis for the suspension or termination. The AG said those evaluation records should then be withheld altogether.

What additional information had to be withheld from personnel records? The AG identified an unredacted birth date, payroll-deduction and banking details, marital-status information, and a driver's-license photocopy that had to be withheld in its entirety.

Were all the custodian's proposed redactions valid?
The AG questioned redaction of job references' home addresses unless they were current or former public employees. She could not assess redacted email contents without knowing what they said.

Background and statutory framework

The opinion applies different release tests to personnel records and employee-evaluation records. Personnel records require a privacy balance and particular information may need redaction. Evaluation records require suspension or termination, final administrative resolution, use of the record as a basis for that decision, and a compelling public interest in disclosure. The AG reviewed these particular records while noting that the custodian had not provided a record-by-record classification.

Citations

• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTOl~NEY GENERAL
LESLIE RUTLEDGE

May 3, 2021

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
400 West Capitol Ave., Suite 2000
Little Rock, AR 7220 l

Dear Mr. Eddings:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as legal counsel for the 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 Russellville School District ("RSD") has received a request under the FOIA for records relating to a former employee's employment during the 2020-2021 school year, the decision to place him on administrative leave, and his subsequent termination, including his evaluations, job performance records, written reprimands, letters of caution, documents supporting a recommendation for suspension or dismissal, and documents related to promotions and demotions since January 1, 2020. You have attached several documents that you believe are responsive to the request and that you intend to release with redactions. You ask whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Your request does not indicate how the custodian has classified any particular record, only that the RSD intends to release the enclosed records, which include those relating to the decision to place the former employee on administrative leave and the subsequent decision to terminate him, as well as his redacted personnel records. Without information regarding the custodian's decision, it is impossible

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Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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for me to opine definitively on whether each record has been classified and treated appropriately under the FOIA. However, based on the contents of the records provided, I will state my supposition regarding the custodian's classification and render my opinion based on that supposition.

Having reviewed the records at issue, it is my opinion that the custodian's decision to release the records is not entirely consistent with the FOIA. I have identified several additional pieces of information that need to be redacted, several redactions that may not be consistent with the FOIA, and several documents that should not be released if they did not form a basis for the former employee's suspension or termination.

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 RSD, 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.

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).

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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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 determined by reviewing the record itself. If a document meets this definition, then

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; ce11ificates 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)(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.

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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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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Friday, Eldredge & Clark, LLP
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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 )(1 O));
• 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. 2019-04 7, 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 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 disc losable employee-related records. Op. Att'y Gen. 2019- 047 (and opinions cited therein).

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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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 (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

Additionally, some employee-related records constitute "mixed records." Mixed records are ones that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one person's personnel record, or (3) more than one person's personnel record. 22

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

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
See Op. Att'y Gen. 2020-037 (and opinions cited therein).

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 23

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. 24

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, 25 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. 26 III. Application.

23
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

24
Watkins, et al., at 238-39 (footnotes omitted).

25
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").

26
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
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It appears, based on the information before me, that the custodian has classified some of the records provided as personnel records and others as employee- evaluation records. I have divided the records into groups and address them according! y.

Employee's 2020 Evaluation:

The custodian has apparently determined that this record qualifies as an employee- evaluation record and that it meets the test for disclosure. I believe it is clear from the face of the record that it is properly classified as an employee-evaluation record. 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 that the first three elements are met in this case. Thus, the inquiry focuses on whether there is a "compelling public interest" in the record's disclosure. While the existence of compelling public interest in the release of a particular record is always a question of fact that must be determined in light of all the surrounding circumstances, 27 I believe the high position occupied by the former employee likely generates a compelling public interest in disclosure. Accordingly, I cannot say the custodian's decision to release the record in this instance is inconsistent with the FOIA.

Employee's Other Evaluation Records:

Other annual evaluations, professional growth plans, and performance evaluations of the employee, ranging in date from 200 I to 2019, have been included among the records the custodian intends to release, though the content of these records has been almost completely redacted. I presume that the custodian has classified these documents as employee-evaluation records but has heavily redacted them because they do not meet the test for release set forth above. However, if these records did not "form a basis for the decision to suspend or terminate the employee," they should not be released at all. 28

All Other Records:

27
See Op. Att'y Gen. 2006-026 (and opinions cited therein).

28
See Op. Att'y Gen. 2004-012 (opining that "the FOIA expressly contemplates releasing redacted excerpts of personnel records under appropriate circumstances, whereas it flatly prohibits releasing any p011ion of an employee evaluation/job performance record" unless the test for release of job- performance records has been met).

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
Page 9

Although not explicitly stated, I surmise that all of the remaining records you have provided have been classified by the custodian as personnel records. I agree with this classification and with the custodian's decision to release these records. However, additional information must be redacted from some of these records, while other redactions are questionable.

As noted above, a custodian must redact from personnel records an employee's date of birth, 29 information regarding an employee's payroll deductions, 30 banking information, 31 and infonnation that would indicate an employee's marital status. 32 The employee's date of birth has been redacted from most of the documents, but it has not been redacted from the Arkansas Teacher Retirement System Membership Data Form. One of the records you have provided contains handwritten notes detailing a decrease in withholding directed towards one financial institution and an increase in withholding directed towards another financial institution. The names of the employee's financial institutions are also present on his payroll data sheet and his direct deposit authorization form. And information relating to the employee's marital status is present throughout the personnel records. All of this information must be redacted based on the personnel records test for disclosure.

The custodian has also included a copy of the employee's driver's license among the records to be released, with some of the employee's personal information redacted. In my opinion, the photocopy of the driver's license must be withheld in its entirety. 33

Furthermore, the custodian has made several redactions that are questionable from the face of the records. There is no clear basis, in my opinion, for redacting the personal addresses of job references unless those individuals are current or former public employees. 34 Additionally, there are two emails from the employee among the records, and the contents of the emails have been redacted in their entirety.

29
See, e.g., Op. Att'y Gen. 2007-064.

30
See, e.g., Op. Att'y Gen. 98-126.

31
See, e.g., Op. Att'y Gen. 2005-194.

32
See, e.g., Op. Att'y Gen. 2001-080.

33
See, e.g., Op. Att'y Gen. 2017-125 (and opinions cited therein). 34 See Ops. Att'y Gen. 2018-117 and 2016-129 (citing Ark. Code Ann.§ 25-19-105(b)(l3), which exempts from public disclosure the personal contact information, including home addresses, of certain nonelected employees contained in employer records).

Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
Page 10

While one of the emails appears to concern withholdings, the contents of the other email is unclear. Without knowing the contents of the emails, I cannot opine on the appropriateness of the custodian's redactions but can only reiterate that the personnel records test for disclosure set forth above must be met.

In conclusion, it is my opinion that the custodian's decision to release the employee's most recent evaluation record and his personnel records is consistent with the FOIA. However, the custodian must make additional redactions to the personnel records and possibly remove other redactions from the personnel records. With respect to the employee's other employee-evaluation records, if they did not form a basis for RSD's decision to suspend or terminate the employee, they should not be released.

Sincerely,

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LESLIE RUTLEDGE
Attorney General