Can the subject of an Arkansas workplace investigation get the unredacted memo and emails about the complaint against her?

Plain-English summary

At the Arkansas Teacher Retirement System, one employee complained about another. An investigation produced a memo and emails, and no one was suspended or terminated. The employee named in the complaint, called the Respondent in the opinion, requested correspondence about the memo. The HR manager planned to release the memo and emails and asked the Attorney General whether that decision complied with FOIA.

The AG said yes. The memo was a mixed record: the Respondent's employee-evaluation record and the Complainant's personnel record. The emails were personnel records of the Respondent, Complainant, and investigator. Because the Respondent was requesting records maintained about her, A.C.A. § 25-19-105(c)(2) entitled her to the memo and emails without redactions, even though the records also concerned others. The AG said the usual personnel-record privacy test for the Complainant need not be applied to this memo in that circumstance.

This is a decision about the specified request by a subject of these records. The opinion explains separate tests for public disclosure of personnel and evaluation records, but does not decide how the agency should respond if a third party requests the same file. It says nothing about an ongoing investigation, pre-final documents, a deliberative-process objection, or a general right to every document in an employee file.

What this means for you

Public employees seeking their own records

If a public agency holds personnel or evaluation records about you, identify the records you seek and cite A.C.A. § 25-19-105(c)(2). In this case, that provision let the Respondent obtain the investigation memo and related emails unredacted, despite their mixed content. The opinion does not decide access to records that are solely about someone else or address a pending investigation.

HR managers and records custodians

Classify each requested record and identify the people whose personnel or evaluation record it is. For the memo and emails reviewed here, the AG approved unredacted release to the Respondent because both were her records. The result for a member of the public cannot be assumed from this subject-access decision; the opinion sets out different public-disclosure tests.

Complainants and investigators

The memo and emails in this particular investigation also contained the Complainant's personnel information, but the AG approved giving unredacted copies to the Respondent. That is a concrete example of how mixed records can reach the employee they evaluate. The opinion does not decide confidentiality for every complaint or prescribe how future investigations should be conducted.

Common questions

Why did the Respondent receive the memo without redactions?
The AG classified it as her employee-evaluation record as well as the Complainant's personnel record. A.C.A. § 25-19-105(c)(2) made it available to the person about whom it was maintained even if it would otherwise be exempt.

Why did she receive the emails?
The AG classified them as personnel records for the Respondent, Complainant, and investigator. He applied the same subject-access rule and approved unredacted copies to the Respondent.

Would a member of the public get the same unredacted records?
The opinion does not decide that. It discusses distinct public-disclosure tests for personnel and evaluation records, then resolves this request because the Respondent sought her own records.

Does the ruling cover an investigation still in progress?
The opinion does not address an ongoing investigation or whether a particular pre-final document must be released. It concerns the memo and emails supplied to the AG after the described investigation.

Background and statutory framework

A.C.A. § 25-19-105(c)(2) says personnel or evaluation records otherwise exempt from disclosure “shall nonetheless be made available to the person about whom the records are maintained.” The AG applied that provision to the Respondent's mixed records. The opinion also cites the personnel-record privacy rule in subsection (b)(12) and the evaluation-record public-disclosure rule in subsection (c)(1), but did not use either to deny this subject's request. Footnote 19 cites Opinion 2023-032 for the mixed-records framework.

Citations

• A.C.A. § 25-19-105(b)(12), (c)(1), (c)(2), (c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ark. Att'y Gen. Op. 2023-032

Source

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

Original opinion text

Opinion No. 2023-055

June 23, 2023

Vicky Fowler
Human Resources Manager
Arkansas Teacher Retirement System
1400 West Third Street
Little Rock, Arkansas 72201

Dear Ms. Fowler:

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.

As background for your request, you explain that one employee, whom you call the “Complainant,” filed an internal complaint against another employee, whom you call the “Respondent.” This complaint gave rise to an internal investigation that did not result in anyone being suspended or terminated. The investigator recorded his findings in a memo and forwarded it to the Complainant. The investigator and the Complainant exchanged emails, and then the investigator forwarded those emails to other agency staff. You report that the Respondent has submitted a FOIA request for records of all correspondence sent on or after Tuesday, June 20, 2023, concerning the memo.

You have made the following decisions, which you have asked me to review. First, you have decided that the memo is releasable to the requester because it is her evaluation. Second, you have decided that the emails should also be released because they are either (1) public records that are not personnel or employee-evaluation records or (2) personnel records that can be disclosed because they do not constitute a clearly unwarranted invasion of privacy. RESPONSE In my opinion, your decisions are consistent with the FOIA.

Vicky Fowler
Arkansas Teacher Retirement System
Opinion No. 2023-055
Page 2

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. Here, the first two elements are met. The request was made to the Arkansas Teacher Retirement System (“ATRS”), which is a public entity and is subject to the FOIA. And the documents I reviewed are public records. 1

2. Exceptions to disclosure. The FOIA contains two exemptions for two groups of documents
   normally found in employees’ personnel files. 2 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records” 3 or “employee evaluation or job performance records.” 4 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. 5 Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

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….” A.C.A.§ 25-19-103(7)(A) (Supp. 2021). 2 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). 3 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.” 4 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.” 5 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.

Vicky Fowler
Arkansas Teacher Retirement System
Opinion No. 2023-055
Page 3

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.” 6

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. 7 The balancing test, which takes place with the scale already tipped in favor of disclosure, 8 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. 9 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 he or she must determine whether the privacy interest is outweighed by the public’s interest in disclosure. 10 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. 11 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. 12 2.2. Employee-evaluation records. 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

6
Ark. Code Ann. § 25-19-105(b)(12).
7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins et al. supra, at 208.
9
Young, 308 Ark. at 598, 826 S.W.2d at 255.
10
Id., 826 S.W.2d at 255.
11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12
E.g., Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins et al., supra, at 207.
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.

Vicky Fowler
Arkansas Teacher Retirement System
Opinion No. 2023-055
Page 4

allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 14 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). 15
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. 16 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 after he considers all the relevant information. 17 The primary purpose of this exception is to preserve the

14
E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
15
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
16
Watkins et al., supra, at 238–39.
17
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.”).

Vicky Fowler
Arkansas Teacher Retirement System
Opinion No. 2023-055
Page 5

confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers. 18

3. Mixed records. In some situations, employee-related records are “mixed records,” which means
   they are (1) more than one person’s evaluation, (2) at least one person’s evaluation and at least one person’s personnel record, or (3) more than one person’s personnel record. 19 When you encounter “mixed records,” you should consider whether any portion of the records you intend to disclose is another employee’s evaluation or personnel records. 20 If so, you must apply the applicable tests for disclosure to those portions of the records. 21

4. Application. All the records at issue here are “mixed records.” The memo is the Respondent’s
   employee-evaluation record and the Complainant’s personnel record. Since the Respondent is the one requesting the records, she is entitled to receive the memo without any redactions because one can request one’s own personnel or employee-evaluation records, even if those records would otherwise be exempt from release. 22 Because this provision overrides all the exceptions, we also do not have to apply the personnel-record test for the Complainant.

The emails are also “mixed records” because they are personnel records for the Complainant, the Respondent, and the investigator. But the FOIA allows each person to inspect and copy his or her own personnel or employee-evaluation records, even if those records would otherwise be exempt from release. Therefore, the Respondent is entitled to unredacted copies of the memo and emails.

Therefore, you decision to disclose these records is constituent with the FOIA.

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

Sincerely,

TIM GRIFFIN
Attorney General

18
E.g., Ark. Att’y Gen. Op. 96-168.
19
Ark. Att’y Gen. Op. 2023-032 (and opinions cited therein).
20
Id.
21
Id.
22
A.C.A. § 25-19-105(c)(2).