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 (ATRS), one employee (Complainant) filed an internal complaint against another employee (Respondent). An investigation followed, with no suspension or termination. The investigator wrote a memo summarizing findings and forwarded it to the Complainant. The investigator and Complainant exchanged emails, which the investigator then forwarded to other agency staff.

Then the Respondent filed a FOIA request: she wanted all correspondence sent on or after June 20, 2023, about the memo. The HR manager planned to release the memo and the emails to the Respondent without redactions. She asked the AG to confirm.

The AG confirmed: the release is consistent with FOIA, and the rationale is the special-rule for subject access in A.C.A. § 25-19-105(c)(2). Walk through it:

The memo. As the document evaluating the Respondent's conduct in a specific incident, the memo is the Respondent's evaluation record. It is also the Complainant's personnel record (it pertains to her, but does not evaluate her). Mixed record. But the Respondent is requesting her own evaluation record. § 25-19-105(c)(2) lets anyone inspect and copy their own personnel or evaluation records "even if those records would otherwise be exempt from release." That overrides every exemption that might otherwise apply. So the Respondent gets the memo unredacted, including the parts that pertain to the Complainant (the personnel-records test for the Complainant doesn't apply because the Respondent has the absolute right to her own evaluation record).

The emails. Mixed personnel records: they pertain to the Complainant, the Respondent, and the investigator. The Respondent's right to her own records under § 25-19-105(c)(2) gives her unredacted access. Same logic.

The narrow point. This opinion is about the subject's right to access her own records. It is not about general public release. If a third party requested the same memo and emails, the analysis would be different. Personnel-records balancing would apply for the Complainant; evaluation-records four-part test would apply for the Respondent. Neither would clearly favor public release given the lack of suspension or termination. But the Respondent has a different status: she is the subject. § 25-19-105(c)(2) gives her absolute access regardless of what would happen on a public-disclosure question.

The deeper principle: Arkansas FOIA distinguishes between (a) public access to government records (subject to exemptions) and (b) personal access to one's own records (largely unrestricted within personnel/evaluation files). The Respondent here is exercising the second right, not the first.

What this means for you

Public employees who become subjects of internal investigations

You have an absolute right to access your own personnel and evaluation records under A.C.A. § 25-19-105(c)(2). The agency cannot redact your own evaluation records before giving them to you, even if the records contain content that would be exempt from public release. This applies to:
- Investigation memos that evaluate your conduct.
- Disciplinary letters about you.
- Performance evaluations.
- Internal communications that pertain to you and were created by or at the behest of the employer.

To exercise this right, request your own personnel and evaluation file from your employer's HR or legal office. The request can cite § 25-19-105(c)(2). The agency cannot apply public-disclosure exemptions to your access.

This is different from the agency's response if a third party requests records about you. In that case, exemptions apply.

HR managers and records custodians

When the subject of records requests her own file, do not apply public-disclosure exemptions. § 25-19-105(c)(2) is an absolute access right that trumps the personnel-records balancing test and the evaluation-records four-part test. Provide the records unredacted to the subject.

The records you provide to the subject should include any segment that pertains to her, including content in mixed records about other employees (Complainant, Respondent, investigators) when the document also pertains to her.

When you provide records to the subject, document the request and the disclosure. If a third party later requests the same records, the response will be different, and you want a clear record of why.

State agency legal counsel

Train HR and records staff on the two-track FOIA framework: subject access vs. public access. The mistake to avoid is applying public-disclosure exemptions to a subject's own records. The opposite mistake (releasing public access without the right exemption analysis) is also a problem, but the subject-access mistake is more common because it sounds counterintuitive ("we shouldn't release a complaint while it's pending").

When in doubt, get an AG opinion under § 25-19-105(c)(3)(B)(i) before release. The custodian, requester, or subject can request review.

Complainants in internal investigations

When you file a complaint, expect that the Respondent will likely have access to your complaint and the investigation memo. The Respondent's access to her own evaluation records is absolute under § 25-19-105(c)(2). What gets withheld from public release does not get withheld from the Respondent.

This means:
- Your name and identifying information will likely be visible to the Respondent (whether through the complaint form itself or through the investigation context).
- The substance of your complaint will be in the investigation memo, which the Respondent can access.
- Direct communications between you and the investigator that get incorporated into the file are accessible to the Respondent.

If you need anonymous complaint protection, look at separate channels (anonymous tip lines, EEOC complaints, civil litigation under different rules). The state-employee personnel-records FOIA framework gives the Respondent broad access to her own file.

Investigators

When you write the investigation memo, write it knowing the Respondent will likely see the unredacted version. This affects how you describe witness statements, characterize evidence, and present findings. Be accurate, specific, and fair. Avoid characterizations you would not want to defend if the Respondent reads them.

For interviews of the Complainant, be transparent about what will end up in writing and how the Respondent may access it. Witnesses should also know their statements may end up in records the Respondent can read.

Employment attorneys representing public employees

If your client is the subject of an internal investigation, request her personnel and evaluation file early. § 25-19-105(c)(2) gives her absolute access. The file may include information you wouldn't otherwise see, which can be useful for any disciplinary proceeding or litigation.

If your client is the complainant, advise her about the Respondent's access. This affects whether she should pursue the internal complaint at all, what she puts in writing, and what alternative channels (EEOC, court) might offer better confidentiality.

Common questions

Can my employer redact my evaluation records when I request them?
No, not under FOIA. § 25-19-105(c)(2) gives you absolute access to your own personnel and evaluation records. Other privilege rules (attorney-client, etc.) might still apply to specific items, but the standard FOIA exemptions do not.

Does this rule apply to private-sector employees?
No, FOIA only applies to public employees. Private-sector employees' access to their own personnel files is governed by separate state and federal law (e.g., specific personnel-file inspection statutes that vary by state).

What if the investigation is still ongoing?
The Respondent's right to her own evaluation records under § 25-19-105(c)(2) does not depend on whether the investigation is complete. If a memo or other evaluation document exists about her, she can request it. Some agencies argue that pre-final documents are protected as deliberative; the AG's clear position is that the subject's access right overrides.

Can the agency say "this is in the Complainant's file, not yours"?
Mixed records belong in both files. If a memo evaluates the Respondent and also pertains to the Complainant, it is in both files. The Respondent's access right applies to the document because it evaluates her. The Complainant's separate access right applies to the same document because it pertains to her.

What about texts, voice memos, or video files?
The same FOIA framework applies regardless of medium. If a text exchange evaluates the Respondent and was created by or at the employer's behest, it is part of her evaluation records. Same for voice memos and video.

Does the agency have to give me the records on demand, or can it take time?
FOIA gives custodians a reasonable time to respond (generally three days for most requests). Subject-access requests follow the same timeline.

Background and statutory framework

A.C.A. § 25-19-105(c)(2) is the special rule for subject access: any person may inspect and copy his or her own personnel or evaluation records, even if otherwise exempt. This rule overrides the public-disclosure exemptions in § 25-19-105(b)(12) (personnel records) and § 25-19-105(c)(1) (evaluation records).

The mixed-records doctrine applies: when a record pertains to multiple employees, the custodian segregates and applies the appropriate test to each segregable portion (Op. 2023-032 and prior opinions). For subject access, § 25-19-105(c)(2) overrides the segregation analysis because the subject has absolute access to her own records.

The standard public-disclosure tests still apply for non-subject access: Young v. Rice balancing for personnel records, four-part test for evaluation records (suspension or termination, finality, relevance, compelling interest).

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public records)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (evaluation records exemption and four-part test)
• A.C.A. § 25-19-105(c)(2) (subject's absolute right to own records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject right to AG review)
• 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
• Ark. Att'y Gen. Ops. 2023-032, 2016-055, 2015-072, 2015-057, 2008-065, 2001-112, 2001-022, 99-147, 97-368, 96-168, 95-351, 94-198, 93-055

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.

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.

2. Exceptions to disclosure. The FOIA contains two exemptions for two groups of documents normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. 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."

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. The balancing test, which takes place with the scale already tipped in favor of disclosure, 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. 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.

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. 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.

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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

5. 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. 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. If so, you must apply the applicable tests for disclosure to those portions of the records.

6. 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. 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, your decision to disclose these records is consistent with the FOIA.

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

Sincerely,

TIM GRIFFIN
Attorney General