Can a city release the termination letter of a former firefighter under Arkansas FOIA when the letter explains why he was fired?

Plain-English summary

Cabot's city attorney asked whether the city could release a former firefighter's termination notice over the objections of the firefighter and his attorney. The AG reviewed the notice and agreed that it was an employee-evaluation record because it gave the reasons for termination.

Evaluation records are released only when the four conditions in Ark. Code Ann. § 25-19-105(c)(1) are met: suspension or termination, final administrative resolution, a record that formed a basis for the discipline, and compelling public interest. The AG said the first three seemed clear. She treated compelling interest as a factual question for the custodian. The firefighter's public-safety role and the policy violations described in the notice mattered; the violations appeared to involve a breach of public trust. She said they "likely reflect a degree of misconduct sufficient to generate a compelling public interest in disclosure." On the record before her, she could not say the custodian's release decision was inconsistent with the FOIA.

What this means for you

If you are a records custodian

A termination notice that states reasons for the action can qualify as an evaluation record. Apply all four statutory release conditions to the particular notice. The AG's conclusion here rests on the content of one Cabot record; compelling interest remains a fact question that the custodian must determine in light of the surrounding circumstances.

If you are a firefighter or other public-safety employee

The AG said a firefighter's role creates a relatively strong public interest in conduct. That factor alone does not make every evaluation record open. The nature of the alleged policy violation, public controversy, employee rank, and other circumstances can affect the analysis.

If you request a termination notice

The AG found the described notice's release likely consistent with the FOIA. Her opinion supplies an example of how public trust and public-safety factors may bear on the compelling-interest condition; it does not establish a default release rule for firefighters or police.

Common questions

Was the notice an evaluation record?
Yes. It stated the reason for the former employee's termination, so the AG agreed with the custodian's classification.

Did the AG make a categorical release ruling for firefighters? No. She emphasized that compelling public interest is always a fact question for the custodian and limited her conclusion to the record reviewed.

Did the AG assess claimed reputational harm?
No. This opinion does not discuss an employee's reputational harm or cite a special rule about it.

Background and statutory framework

The AG applied § 25-19-105(c)(1)'s four conditions for evaluation records. She discussed factors bearing on compelling public interest, including the nature of the infraction, public controversy, and the employee's position. She noted that misconduct undermining public trust or compromising public safety can carry particular weight. Her conclusion was that, based on the face of this record, the conditions for release appeared to be met.

Citations

• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-record disclosure conditions)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTORN EY G EN ERAL
LE SLI E RUT LE DGE

Opinion No. 2021-089

October 25 , 2021

Ben Hooper, City Attorney
c/o Jessica Looper, Paralegal
Cabot City Attorney' s Office
101 North Second Street
Cabot, AR 72023

Dear Mr. Hooper:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 Cabot ("City") has received a request under the FOIA and has determined that a notice of termination issued to an employee is among the records that are responsive to the request. The City has decided that the notice is subject to release, and the subject of the records and his attorney object to its release. You have attached the record in question and you ask whether the City's decision to release it is consistent with the FOIA.

RESPONSE

Having reviewed the record at issue, it is my opm10n, based on the relevant definition and standards discussed below, that the custodian has properly classified the record as the former employee's evaluation record. The custodian has determined that this evaluation record meets the applicable test for disclosure; and from the face of the record, this decision appears to be consistent with the FOIA.

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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, 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. 2021 ).

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 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 ACT 205-06 (Arkansas Law Press, 6th ed., 2017).

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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.

In the instant case, the custodian has determined that the record at issue is an employee-evaluation record. In my opinion, that determination is consistent with the FOIA. Accordingly, I will limit my discussion to the definitions and standards for records of that type.

The FOIA itself does not define "employee evaluation or job performance records. " 7 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. 8 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 9 This office has also long-opined that itincludes letters notifying employees of disciplinary action if the letters include the reason(s) for the action. 10 5 Ark. Code Ann. § 25-19-105(b)(l 2): "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
I will refer to this group of records as "employee-evaluation records."

8
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.

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

10
E.g., Op. Att'y Gen. 2020-061 (and opinions cited therein).

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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). 11

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. 12

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

11
Ark. Code Ann.§ 25-19-105(c)(I); Op. Att'y Gen. 2008-065.

12
Watkins, et al., at 238-39 (footnotes omitted).

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public interest" exists, 13 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. 14

III. Application.

The custodian has determined that the record intended for release is an employee- evaluation record. This office has previously opined that letters notifying employees of disciplinary action constitute employee-evaluation records if they contain the reasons for the action. 15 Because the notice of termination at issue here contains the reason for the employee's termination, the custodian, in my opinion, has properly classified it as an employee-evaluation record. Therefore, the disclosure of the record must be evaluated under the above four-part test.

In this instance, it seems clear that the first three elements are met. As for the fourth-the "compelling interest" element-various factors bear on the analysis, including the employee's rank in the hierarchy and the existence of a public controversy. But the very fact that the employee at issue is a firefighter creates a relatively strong public interest in his conduct. This office has previously observed that firefighters constitute a category of public servant very similar to policemen in terms of their direct importance to the general public. 16 Accordingly, consistent with previous opinions of this office, I believe consideration must be given to the potential public impact of the misconduct at issue, regardless of the employee's rank within the fire department.

13
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").

14
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

15
See supra n.10,

16
Accord Ops. Att'y Gen. 2009-020, 2008-065, 2005-175.

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Additionally, the absence of public controversy in some circumstances establishes little with respect to whether a compelling public interest in disclosure exists. 17 It is far more pertinent to the analysis that disciplinary action resulted from a violation of policies and rules aimed at conduct that could undermine the public trust, compromise public safety, or both. 18 This office has consistently opined that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of employee-evaluation records. 19

Although the nature of the infraction in this instance does not appear to be one normally thought of as central to public safety, it may be described as involving a breach of the public trust. Thus, while the existence of a 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, I believe the policy violations detailed in the record at issue likely reflect a degree of misconduct sufficient to generate 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.

In sum, based on the face of the record, it appears that the conditions under section 25-19-105( c)( 1) for release of employee-evaluation records have been met, and the custodian's decision to release the record at hand is in all likelihood consistent with the FOIA.

Sincerely,

~-:;;::>_ L. //a7
LESLIE RUTLEDGE
Attorney General

17
See Op. Att'y Gen. 2014-122 (rejecting the notion that the mere absence of public controversy requires that a record be withheld, given that the public may simply be unaware of the underlying episode giving rise to the controversy).

18
See Op. Att'y Gen. 2017-063 (and opinions cited therein).

19 Id.

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