Can a former Little Rock city employee block release of his termination records under the Arkansas FOIA?

Plain-English summary

The City of Little Rock received a FOIA request for "all records regarding the termination of employment" of a former employee, "including any appeals filed." The records custodian decided the personnel file was generally releasable, but: (1) sensitive personal information (home address, date of birth, telephone number, social security number) would be withheld, and (2) employee-evaluation records would be released only if they formed the basis of a suspension or termination that had reached final administrative resolution.

The former employee's attorney objected, particularly to release of records "surrounding his recent resignation," and asked the AG whether the custodian's decision was consistent with the FOIA. Attorney General Leslie Rutledge had not seen any responsive records and had no information about how the custodian classified them. She could not decide whether any particular document could be released.

The opinion walks through the Arkansas FOIA distinction between personnel and evaluation records. Personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." Evaluation records cannot be released unless the four-part test is met: suspension or termination, finality, records forming a basis for the decision, and compelling public interest. The AG approved the custodian's stated plan to redact sensitive information from disclosable personnel records. The custodian's stated evaluation-record approach was consistent only if the basis and compelling-interest elements were also met.

Currency note

This opinion applies the Arkansas FOIA as of December 2021. Check the current text of § 25-19-105 and later decisions before applying its discussion to a current request.

What this means for you

If you are a public employee whose termination records are being requested

Ask the custodian how each record was classified and what disclosure test was applied. Personnel records require a privacy balancing test and may need redactions. Evaluation records require all four statutory conditions before release. The AG did not decide how the employee's resignation affected any of those conditions.

If you are a city or county records custodian

Classify each record, apply the correct disclosure test, and review any disclosable document for required redactions. The AG had no classification information here. She approved the custodian's redaction decision and treated the stated evaluation-record decision as consistent only if the basis and compelling-interest requirements were met.

If you are an employment attorney representing a former public employee

Review which records the custodian calls personnel records and which are evaluation records. For personnel records, identify any specific privacy interest for the balancing test. For evaluation records, check each of the four statutory conditions. The AG could not evaluate particular records without seeing them.

If you are a journalist seeking termination records of a public employee

The custodian must decide record by record. A final suspension or termination alone is insufficient for evaluation records: the records also must form a basis for that decision, and there must be a compelling public interest in disclosure. The AG did not decide how this employee's resignation affected release.

Common questions

Q: What's the difference between a personnel record and an evaluation record? A: The opinion cites Thomas v. Hall for the definition of evaluation records: records created by or at the behest of the employer to evaluate an employee and detailing that employee's performance or lack of performance. It describes personnel records as other records pertaining to an individual employee. The custodian must classify the actual documents.

Q: What if a single document has both personnel and evaluation content? A: The opinion recognizes "mixed records" that concern more than one employee or contain both evaluation and personnel information. The custodian must classify the information and apply the relevant disclosure test; the AG did not classify any specific record here.

Q: Can the custodian redact "sensitive personal information" beyond what the statute lists? A: The opinion lists examples of information requiring redaction, including personal contact details, Social Security numbers, dates of birth, and medical information. For personnel records, the custodian must also apply the privacy balancing test to the specific information at issue.

Q: What if the employee resigned rather than was terminated? A: The attorney said the request concerned a recent resignation, but the AG did not analyze whether a resignation satisfies the suspension-or-termination requirement. Her discussion states the four requirements without deciding how they apply to this employee's records.

Q: Does it matter who is asking for the records?
A: Generally no. The opinion confirms the standard rule that the requester's identity and motive are irrelevant to whether a non-exempt record must be released. The custodian's analysis is objective.

Background and statutory framework

The opinion distinguishes personnel records from employee evaluation or job performance records. Personnel records are open unless disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records cannot be released unless all four statutory conditions are met. The custodian must classify a record before applying either test.

The opinion cites Young v. Rice for the personnel-records balancing test, Stilley v. McBride for the burden on the person resisting disclosure, Thomas v. Hall for the definition of evaluation records, and Pulaski Cty. v. Ark. Democrat-Gazette, Inc. for the rebuttable presumption of public-record status.

The AG could not substitute a general statement for review of the records themselves. She approved the stated redactions and conditionally assessed the stated evaluation-record approach, leaving classification and the remaining disclosure conditions to the custodian.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007)
• Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
• Thomas v. Hall, 2012 Ark. 66, 9-10, 399 S.W.3d 387, 392-93

Source

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

Original opinion text

STATE O F ARKANSAS
ATTORN EY GENERAL
LESLIE RUTLEDGE

Opinion No. 2021-098

December 7, 2021

Mr. Charles D. Hancock, Esq.
Attorney at Law
Hancock Law Firm
610 E. 6th St.
Little Rock, AR 72202

Dear Mr. Hancock:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the requested 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 Little Rock ("City") has received a request under the FOIA for "all records regarding the termination of employment of [your client], including any appeals filed." The records custodian has determined that the requested information is releasable under the FOIA . Additionally, the custodian has stated, "No sensitive personal information such as address, date of birth, telephone number, or social security information is releasable. Evaluations are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." Your client objects to the release of his personnel file, particularly "information surrounding his recent resignation ." You ask whether the custodian's decision regarding the release of the records is consistent with the FOIA.

323 CENTErl ST REET. SU IT E 200 · LI TTLE RO C K. AR KAN SAS 7220 I TE LEPHONE (50 1) 682-2007 ·FAX (501) 682-8084 A l"lKANSASAG.GOV

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 2

RESPONSE

My duty under subdivision 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. Because I have not seen any records that the City has determined to be responsive to the instant FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document.

However, I will 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. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. This is the responsibility of the custodian in the first instance.

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

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 ).

2 Id.

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

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 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 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.

'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 Acr 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)(12) 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."

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 4

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

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 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

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).

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
Jd., 826 S.W.2d at 255.

13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 5

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 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)(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);

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.

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 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).

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 6

• 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)(l0));
• 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

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

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
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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). 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

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

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

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 8

"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

III. Application.

When dealing with employment-related records, custodians must make two determinations in the first instance: ( 1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) if so, whether under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure. I have no information regarding the custodian's classification of any particular record from your personnel file. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

While I cannot opine on the release of any specific records here, I will note that the custodian has determined that any sensitive personal information, such as your home address, date of birth, telephone number, or Social Security number, must be redacted from any disclosable personnel records. That decision is, in my opinion, consistent with the FOIA. Furthermore, the custodian has stated that any employee-evaluation records "are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." As long as the other two prongs of the test set out above are met, 27 that decision is also consistent with the FOIA.

Finally, as noted above, a FOIA requester's identify or motive for making the request is generally irrelevant to whether a record must be released. 28 The test

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
Supra text accompanying n.23.

28
Supra n.18.

Mr. Charles D. Hancock Esq.
Attorney at Law
Opinion No. 2021-098
Page 9

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. 29 The custodian's analysis cannot be based on a requester's subjective motive for wanting the record.

Sincerely,

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LESLIE RUTLEDGE
Attorney General

29
See Ops. Att'y Gen. 2018-087, 2018-061.