Could the City of Cabot release two records responsive to a decertification-related FOIA request despite the subject’s objection to the requester’s motive?

Plain-English summary

The Cabot city attorney's office received a FOIA request for documents related to Joshua Bayliss's decertification. The custodian identified two responsive records and decided to release them. Bayliss objected because he believed the requester intended to use the information to slander him in an unrelated matter.

The AG reviewed the two records and found that release was consistent with the FOIA, whether the custodian had classified them as personnel records or employee-evaluation records. She did not identify the records' classification or apply the evaluation-records disclosure prongs to decertification proceedings generally. She also said the requester's subjective motive was not a legally sufficient reason to withhold these records.

What this means for you

If you are a records custodian

Classify each responsive record and apply the corresponding FOIA disclosure test. This opinion approves release of the two records the AG reviewed; it does not decide that every record associated with decertification is open. A subject's concern about the requester's intended use does not itself make a non-exempt record confidential.

If you are the subject of a request

The AG held that Bayliss's objection to the requester's motive did not justify withholding the two records. Whether other records may be released depends on their content and the applicable FOIA exception.

If you are requesting records

The custodian's release decision for these two records was consistent with the FOIA. The opinion says a requester's subjective motive generally does not control disclosure of non-exempt public records.

Common questions

Did the AG decide how the two records were classified? No. She said they were not exempt whether they were personnel records or employee-evaluation records. Footnote 27 says she did not need to decide how they should have been classified.

Does decertification itself satisfy the evaluation-records test? The opinion does not say so. It sets out the four statutory conditions for releasing evaluation records but does not apply them individually to the two records or to decertification generally.

Can the subject's allegation about the requester's motive stop release? No, for the two non-exempt records at issue. The AG said the subject's concern about intended use was not a legally sufficient reason to withhold them.

Background and statutory framework

The AG described three general requirements for disclosure: a request to an entity subject to FOIA, a public record, and no applicable exception. She explained that personnel records and employee-evaluation records have different disclosure tests. Personnel records are open unless disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records may be released only if the suspension-or-termination, finality, basis, and compelling-public-interest conditions are all met. The AG did not decide which test the custodian should have used for the two records because she found them disclosable either way.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review of custodian decisions)
• Ark. Code Ann. § 25-19-103(7)(A) (public-record definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation disclosure conditions)
• Thomas v. Hall, 2012 Ark. 66 (evaluation-record definition)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTOllNEY GENERAL
LESLIE R UTLEDGE

Opinion No. 2021-050

June 30, 2021

Joshua Bayliss
c/o Cabot City Attorney ' s Office
101 North Second Street
Cabot, AR 72023

Dear Mr. Bayliss:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your make your request as the subject of the requested records, 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 Cabot city attorney's office has received a request under the FOIA for "documents related to your decertification." The records custodian has notified you of the request and that the custodian has identified two records determined to be responsive to the request. Although you were not told of the custodian's determination as to how the custodian classified the records (your personnel or evaluation records), the custodian informed you that the records are subject to disclosure under the FOIA. You state that the person who requested the records "is wanting to use information to slander [your] name" in an unrelated legal matter, and you therefore seek my opinion.

RESPONSE

My duty under section 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. While it is the responsibility of the custodian, in the first instance, to properly classify the responsive records and then apply the applicable test for disclosure, it is nevertheless my opinion that, having reviewed the records at issue, the custodian' s

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c/o Cabot City Attorney
Opinion No. 2021-050
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determination to release the records is consistent with the FOIA. This conclusion is consistent with this office's long-standing position regarding records similar to those at issue. Moreover, your objection to the records' release is not a legally cognizable reason to withhold non-exempt public records under 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 Cabot, 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

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c/o Cabot City Attorney
Opinion No. 2021-050
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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 it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 8

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 & Robe11 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)(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.

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

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c/o Cabot City Attorney
Opinion No. 2021-050
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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 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. 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

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 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, 98-00 I.

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

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c/o Cabot City Attorney
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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);
• 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).

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 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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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 other 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 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:

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).

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

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c/o Cabot City Attorney
Opinion No. 2021-050
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[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 in the employee/ employer relationship. 26

Ill Application.

I have not been made aware of how the custodian has classified the records deemed responsive to the request. Nevertheless, having reviewed the records at issue, it is my opinion that, irrespective of whether the custodian classified them as your personnel records or your evaluation records, the records are not exempt from disclosure under the FOIA. Thus, the custodian's decision to release the records is consistent with the FOIA. 27

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.
27
Because it is my opinion that the records are subject to disclosure under the FOIA, I need not opine on how the custodian should have classified the records.

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c/o Cabot City Attorney
Opinion No. 2021-050
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Furthermore, your concern as to how the requester intends to use the records is not a legally sufficient reason to withhold the records. As noted above, a FOIA requester's motive for making the request is generally irrelevant to whether a record must be released. 28 Again, the test under the FOIA for the release of non-exempt employee-related records asks whether, as an objective matter, the records in question shed light on governmental workings for the general public. A requester's subjective reasons for wanting such a record must not enter into the custodian's decisions.

Sincerely,

~~;::>_ ~. / #--R"fo
LESLIE RUTLEDGE
Attorney General

28
Supra n.18 (and accompanying text).

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