Can a city release a former employee's personnel and termination records when the misconduct involves honesty violations, even though the subject objects?

Plain-English summary

An attorney for the subject of Bella Vista employee records asked whether the custodian's decision to release a redacted 20-page file complied with the Arkansas FOIA. The AG distinguished personnel records from employee-evaluation records. She considered pages 9 through 20 personnel records and said releasing those pages as redacted was consistent with the FOIA.

The AG considered the first eight pages employee-evaluation records. The subject argued that his termination was not administratively final and that disclosure lacked a compelling public interest. The AG said both matters were factual questions for the custodian to resolve. She noted that public-safety positions and alleged honesty-related misconduct could strengthen the public interest, but acknowledged that she might lack relevant facts. On the information before her, she could not say that the custodian's decision to release the evaluation records was inconsistent with the FOIA. She did not find all four statutory disclosure conditions satisfied.

What this means for you

If you are a records custodian

Apply the disclosure test that corresponds to each record's classification. The AG approved the redacted release of the personnel records in this file. For the evaluation records, she left finality and compelling public interest to the custodian after consideration of the relevant facts.

If you are the subject of employee records

The opinion does not treat a termination or an allegation of dishonesty as automatic authorization to release evaluation records. It describes honesty-related misconduct as a significant consideration and says the custodian must determine whether the statutory conditions are met.

If you request employee records

This opinion concerns a particular 20-page file. The AG did not announce that every termination or honesty-related record is disclosable. The evaluation-records test requires a final administrative resolution, records that formed a basis for the discipline, and a compelling public interest, among other conditions.

Common questions

Did the AG approve release of the personnel records? Yes. She found the custodian's decision to release pages 9 through 20, as redacted, consistent with the FOIA.

Did the AG find all four conditions met for the evaluation records? No. Whether administrative remedies remained available and whether a compelling public interest existed were questions for the custodian. The AG said only that, on the facts before her, she could not find the proposed release inconsistent with the FOIA.

What factors did the AG discuss for compelling public interest? She discussed the employee's position, public-safety roles, and the kind of alleged misconduct. The general framework also lists public controversy and the employee's rank among relevant factors. The AG emphasized that this was a fact question for the custodian.

Background and statutory framework

Under Ark. Code Ann. § 25-19-105(b)(12), personnel records are open except to the extent disclosure would be a clearly unwarranted invasion of personal privacy. Under § 25-19-105(c)(1), evaluation records are released only if the statutory conditions concerning discipline, finality, basis, and compelling public interest are met. This opinion applied those separate tests to different parts of the file and preserved the custodian's fact-finding role.

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)(3)(B)(i) (AG review procedure)
• Young v. Rice (personnel-record privacy balance)
• Ark. Op. Att'y Gen. 2014-122 (honesty-related misconduct, cited in PDF footnote 33)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2021-075

September 21, 2021

Alicia Canfield, Esq.
Miller Butler Schneider Pawlik Rozzell, PLLC
224 South 2nd Street
Rogers, AR 72756

Dear Ms. Canfield:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as attorney for the subject of the records, is 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 City of Bella Vista has received a request under the FOIA for your client's "personnel file information." You have attached several documents that the records custodian has identified as responsive to the request and that she intends to release with redactions. The subject of the records objects to the proposed release. You ask whether the custodian's decision to release the records as redacted is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the custodian's decision to release (as redacted) the records qualifying as personnel records is consistent with the FOIA. Additionally, while there may be facts of which I am unaware, I cannot say based on what is before me that the custodian's decision to release your client's evaluation records is inconsistent 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 Bella Vista, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. And 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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. 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."

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

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. 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. 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. 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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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. 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. 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.

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)(13));
• 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)(10));
• 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. 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

Additionally, some employee-related records constitute "mixed records," i.e., records 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.

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).

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.

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, which is always a question of fact that must be determined, in the first instance, by the custodian, taking into consideration all of the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process so as to promote honest exchanges in the employee/ employer relationship.

III. Application.

I have reviewed the electronic file you have provided containing 20 pages of your client's employment-related records. After correctly differentiating which records are your client's personnel records or evaluation records, and applying the appropriate test(s) for disclosure, I cannot say that the custodian's decision to release the records, as redacted, is inconsistent with the FOIA. Furthermore, as to whether a "compelling public interest" exists in the evaluation records, that is a question of fact that must be determined, in the first instance, by the custodian, after considering all of the relevant information.

From the face of the records, the first eight pages of the electronic file appear to be your client's employee-evaluation records, while the remainder are clearly his personnel records. As I wrote above, the tests for disclosure between these types of employee-related records differ greatly. I will address these records in reverse order.

Again, "personnel records" are all records other than employee-evaluation records that pertain to an individual employee. From the face of the records you provided, pages 9-20 clearly meet this definition. For instance, this office and the leading commentators on the FOIA have repeatedly observed that job applications of public employees, like the one you provided, generally meet this definition. So, too, do the remainder of this group of records. As such, they are subject to disclosure except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." In my opinion, the custodian's decision to release these records, as redacted, is consistent with the FOIA.

Regarding your client's evaluation records, you assert that two of the four prongs of the disclosure test have not been met; to wit, that there has not been a final administrative resolution to your client's termination, and that there is not a compelling public interest in the records' disclosure. You provide no further information in support of these assertions. As to your first claim, whether or not your client has any administrative remedies available is a question of fact and one best suited for the custodian to determine.

Your primary assertion is that there is no compelling public interest in the records. Whether a compelling public interest in an employee's evaluation records exists is similarly a question that must be answered in the first instance by the custodian after taking into consideration all of the facts and circumstances.

Various factors bear on this analysis. First, as noted above, an employee's rank in the hierarchy may bear on the strength of the public's interest in his performance. As this office has opined, however, a compelling public interest can be more easily found in the records of "rank-and-file" employees in public-safety positions.

Far more pertinent to the analysis may be the kind of misconduct that led to your client's termination. According to your correspondence, issues of honesty, in other words, a betrayal of the public trust, are involved in this case. This office has consistently held that the violation of rules of conduct regarding honesty in itself gives rise to a compelling public interest in disclosure of employee- evaluation records.

I readily acknowledge that there may be facts of which I am unaware. But based on what is before me, I cannot say that the custodian's decision to release your client's evaluation records that led to his termination is inconsistent with the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General

PDF footnote 32: See, e.g., Ops. Att'y Gen. 2011-161 (recognizing the compelling public interest in the records of a police officer suspended for violation of departmental rules directly affecting public safety), 2005-175 (opining that fire fighters "constitute a category of public servant very similar to policemen in terms of their direct importance to the general public."). See also Watkins, et al., at 238.

PDF footnote 33: Op. Att'y Gen. 2014-122 (and opinions cited therein).