Is a Camden suspension letter that doesn't list the grounds a personnel record that must be disclosed under FOIA?

Plain-English summary

The City of Camden planned to release a redacted suspension letter from a former employee's personnel file after a FOIA request. The employee objected, and City Attorney Michael Frey asked the Attorney General whether release was consistent with the FOIA. The AG said it was.

The letter did not state the grounds for suspension. The AG therefore classified it as a personnel record and applied the rule that such records must be disclosed unless release would clearly and unwarrantedly invade personal privacy. He found this letter had to be disclosed under that test.

The AG did not decide whether the redaction was proper. Footnote 1 says he lacked an unredacted copy and that neither the subject nor the custodian asked about the redaction. It does not establish a requirement that the custodian must first ask the subject before the AG may review a redaction.

Footnotes 2 and 3 cite earlier AG opinions for the classification and personnel-records rules. The opinion does not discuss a general rule requiring an objecting employee to identify a specific exemption.

What this means for you

Custodians and employees

The opinion addresses the disclosure of this letter without grounds for discipline. Its holding rests on the letter's content and the personnel-records privacy standard. The employee's objection was reported, but the AG gave no general requirements for the form or content of an objection.

Common questions

Why was this letter a personnel record?
It did not recite the grounds for the suspension. The AG cited earlier opinions for treating such a letter as a personnel record.

Did the AG approve the redactions?
No. He said he could not assess them without an unredacted copy and noted no one had asked him to do so.

Did the AG require the employee to cite a specific FOIA exemption? No such requirement appears in the opinion.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) authorizes AG review of a custodian's decision concerning certain employee records. The opinion applies the personnel-records privacy standard under subsection (b)(12). Footnote 2 cites Opinions 2012-073 and 2011-161 for classification of suspension letters without grounds.

Citations

• A.C.A. § 25-19-105(b)(12) and (c)(3)(B)(i)
• Arkansas Attorney General Opinions 2012-073, 2011-161, 2009-210, and 2009-067

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-069
August 3, 2023
Mr. Michael W. Frey
City Attorney
325 Jefferson SW
Camden, Arkansas 71701
Dear Mr. Frey:
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). The FOIA 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. The City of Camden received a request under the FOIA for a former employee’s personnel file, which contains a letter of suspension. The former employee objects to your decision to release a redacted version of that letter. You have requested my opinion on whether your decision to release the redacted letter1 is consistent with the FOIA. This office has consistently opined that a letter of suspension is a personnel record when the letter does not recite the grounds for the suspension.2 Since this letter does not recite the grounds for the suspension, the custodian has properly classified it as a personnel record. Such records must be disclosed unless doing so constitutes a clearly unwarranted invasion of personal privacy. 3 In my opinion, this test requires that the letter be disclosed. Therefore, I believe the custodian’s decision to disclose this letter is consistent with the FOIA.

1
Because I have not been provided with an unredacted copy of the letter of suspension, I cannot opine on whether the redaction is proper. Neither the subject nor the custodian has asked whether the redaction is proper. 2 Ark. Att’y Gen. Ops. 2012-073, 2011-161.
3
A.C.A. § 25-19-105(b)(12); Ark. Att’y Gen. Ops. 2009-210, 2009-067.

323 CENTER STREET, SU ITE 200
LITTLE ROCK, ARKANSAS 72201
Mr. Michael W. Frey
Opinion No. 2023-069
Page 2

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General