Can the Arkansas Public Defender Commission release suspension and termination letters about a former employee facing criminal charges?

Plain-English summary

A member of the press requested correspondence about a former Arkansas Public Defender Commission employee. The custodian identified suspension and termination letters and related emails, decided to release them with redactions, and asked the Attorney General to review that decision after the employee objected. The AG found the decision consistent with the Arkansas FOIA.

The AG classified the letters as employee-evaluation records because they state reasons for discipline. He applied the four requirements for releasing such records: suspension or termination, final administrative resolution, records reflecting the basis for the action, and a compelling public interest. He found the first three met. For the fourth, the custodian cited the former employee's pending criminal charges for theft of public funds. The AG said the custodian's determination was consistent with the FOIA on these facts. He also said compelling public interest is always a factual question for the custodian in the first instance.

The emails were personnel records, the AG said, because they were not created to evaluate the employee and did not state reasons for discipline. He found their redacted release would not be a clearly unwarranted invasion of personal privacy. He also approved the redaction of the former employee's and another employee's personal contact information.

What this means for you

Records custodians

The opinion applies different tests to the disciplinary letters and the related emails. It accepts the compelling-interest determination on the facts presented, including pending charges, without establishing a rule that criminal charges always satisfy that requirement.

Employees and requesters

The AG reviewed the proposed release and redactions for these particular records. The opinion does not decide how another employee's records would be treated or what would happen if the underlying facts changed.

Common questions

Why were the two letters evaluation records?
The suspension letter detailed the reason for suspension, and the termination letter touched on the reason for termination. The AG says letters that contain disciplinary reasons fit that classification.

Did pending criminal charges automatically establish a compelling public interest? The AG accepted the custodian's determination in this case. He described compelling public interest as a factual question based on all relevant information.

Why were the emails treated differently?
The AG said they were not created to evaluate the employee and did not contain the reasons for discipline. He analyzed them as personnel records.

Were any details still withheld?
Yes. The AG approved redactions of personal email and mailing addresses under A.C.A. § 25-19-105(b)(13).

Background and statutory framework

A.C.A. § 25-19-105(c)(1) governs release of employee-evaluation records; subsection (b)(12) concerns personnel records, and subsection (b)(13) protects specified personal contact information. The opinion quotes commentators' factors for evaluating compelling public interest: nature of the infraction, public controversy connected with the agency, and employee position. Its footnotes cite earlier AG opinions about disciplinary letters, but it does not announce a general rule that charges involving public funds always compel disclosure.

Citations

• A.C.A. § 25-19-105(b)(12), (b)(13), (c)(1), and (c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-049

June 16, 2023

Charlotte Bogan
Arkansas Public Defender Commission
101 East Capitol, Suite 201
Little Rock, Arkansas 72201

Dear Ms. Bogan:
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 A.C.A.
§ 25-19-105(c)(3)(B)(i). 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. You say that a member of the press has requested “all correspondence regarding a former employee” of the Arkansas Public Defender Commission (“APDC”). You have gathered the documents you believe are responsive to this request. They include a letter of suspension, a letter of termination, and email correspondence regarding the suspension and termination. It appears you have classified the letters of suspension and termination as the former employee’s evaluation records and the remaining documents as his personnel records. After applying the tests for release, you have determined that all the records are releasable with redactions. Because the subject of the records objects to the records’ release, you have requested my opinion on whether your decision is consistent with the FOIA.

RESPONSE
In my opinion, your decision to release the records as redacted is consistent with the FOIA.

DISCUSSION

1. General rules. 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.

                        323 CENTER STREET, SU ITE 200
                        LITTLE ROCK, ARKANSAS 72201
   

   Charlotte Bogan
   Arkansas Public Defender Commission
   Opinion No. 2023-049
   Page 2

Based on the facts available to me, it is my opinion that the first two elements are met. Accordingly, I will focus on whether any exceptions prevent the documents’ disclosure.

2. Exceptions to disclosure. The FOIA contains two exemptions for two groups of
   documents normally found in employees’ personnel files.1 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records” 2 or “employee evaluation or job performance records.”3 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 first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2.1. Personnel-records. While the FOIA does not define the term “personnel records,” this office has consistently opined that “personnel records” are all records other than “employee evaluation or job-performance records” that pertain to individual employees.4 Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

A personnel record is open to public inspection and copying except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”5 While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private.6 The balancing test, which takes

1
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., Ark. Op. Att’y Gen. 97-368; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (Arkansas Law Press, 6th ed., 2017). 2 A.C.A. § 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.” 3 A.C.A. § 25-19-105(c)(1): “[A]ll 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.” 4 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
5
Ark. Code Ann. § 25-19-105(b)(12).
6
308 Ark. 593, 826 S.W.2d 252 (1992).
Charlotte Bogan
Arkansas Public Defender Commission
Opinion No. 2023-049
Page 3

place with the scale already tipped in favor of disclosure,7 has two steps. Under the first step, 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 minimal privacy interest.8 If it is only minimal, then the privacy interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the record must be disclosed. But if the privacy interest is more than merely minimal, the custodian moves to the second step when she must determine whether the privacy interest is outweighed by the public’s interest in disclosure.9 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.10 The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.11

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. For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.12 2.2. Employee-evaluation exception. The second relevant exception is for “employee evaluation or job performance records,” which the FOIA likewise does not define. But the Arkansas Supreme Court 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.13 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.14 And this office has opined that

7
Watkins et al. supra, at 208.
8
Young, 308 Ark. at 598, 826 S.W.2d at 255.
9
Id., 826 S.W.2d at 255.
10
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
11
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-022, 94-198; Watkins et al., supra, at 207.
12
See Ark. Code Ann. § 25-19-105(b)(13).
13
Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93; see also Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s office); e.g., Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, and 93-055. 14 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
Charlotte Bogan
Arkansas Public Defender Commission
Opinion No. 2023-049
Page 4

letters of suspension and termination constitute employee-evaluation records if they contain the reasons for the suspension or termination.15

If a document qualifies as an employee-evaluation record, 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).16
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, for that concern is, at least theoretically, always present. 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.17 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

15
E.g., Ark. Att’y Gen. Ops. 2020-001, 2019-022, 2012-077, 2001-276, 2001-112. If, however, the letter merely reflects the change in status, without elaboration, this office has opined that the letter is properly classified as a “personnel record” under A.C.A. § 25-19-105(b)(12). See, e.g., Ark. Att’y Gen. Ops. 2006-147, 2002-150, 2001-185. 16 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
17
Watkins et al., supra, at 238–39.
Charlotte Bogan
Arkansas Public Defender Commission
Opinion No. 2023-049
Page 5

instance, by the custodian after he considers all the relevant information.18 The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers.19

3. Classification and disclosure of the letters of suspension and termination. In my
   opinion, you have correctly classified the letters of suspension and termination as employee-evaluation records. Although the letters of suspension and termination did not form a basis for the APDC’s disciplinary decisions, this office has consistently opined that such letters constitute employee-evaluation records if they contain the reasons for the suspension or termination.20 Here, the letter of suspension recounts, in detail, the reason for the former employee’s suspension. And while the letter of termination is less detailed, it also touches on the reasons for the former employee’s termination. As a result, these letters are properly classified as employee-evaluation records, and they should be evaluated under the above four-part test. In this instance, the first three prongs of the test have clearly been met. The employee was terminated; the time to request a hearing to appeal the termination has passed; and the letters of suspension and termination contain the reasons for the disciplinary action taken. As for the fourth—the “compelling interest” prong—various factors bear on the analysis, including the employee’s rank within the hierarchy, the existence of a public controversy, and whether there was an infraction involving gross negligence or a violation of the public trust.21 In this case, you have determined that there is a compelling public interest in the release of the records because the former employee is currently facing criminal charges for theft of public funds. In my opinion, your determination is consistent with the FOIA, and the redacted letters are subject to release.
4. Classification and disclosure of email correspondence. The emails that make up the
   remaining records were not created by or at the behest of APDC to evaluate the former employee, nor do they contain the reasons for the former employee’s suspension or termination. Consequently, they are properly classified as his personnel records and should be analyzed under the personnel records balancing test. The emails’ contents primarily reflect the fact of the former employee’s suspension and termination, as well as some discussion of his job duties during the course of the suspension. I see nothing in these documents that would render their release a clearly unwarranted invasion of personal privacy. Thus, I believe your decision to release these emails with redactions is consistent with the FOIA.

18
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.”). 19 E.g., Ark. Att’y Gen. Op. 96-168.
20
See supra note 18.
21
See supra text accompanying note 20.
Charlotte Bogan
Arkansas Public Defender Commission
Opinion No. 2023-049
Page 6

5. Redactions in the records. As explained above, certain categories of information may
   need to be redacted from records that are otherwise releasable. One such category of information that is exempt from release under the FOIA is the personal contact information of certain nonelected government employees, including their “home or mobile telephone numbers, personal email addresses, and home addresses.”22 It appears that you have redacted the personal email address of the former employee, the personal email address of another APDC employee, and the personal mailing address of the former employee from the records you intend to release. In my opinion, these redactions are consistent with the requirements of the FOIA. Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

22
Ark. Code Ann. § 25-19-105(b)(13).