Are workplace harassment complaint forms and exit questionnaires personnel records or evaluation records under Arkansas FOIA?

Plain-English summary

Pulaski County's records custodian asked whether proposed redactions to discrimination and harassment complaint forms and employee exit questionnaires were consistent with Arkansas FOIA. The AG answered that the proposed release was only partly consistent with the law.

The complaint forms were mixed records. They were evaluation records of the employees complained about because the county supplied the forms to collect details of alleged conduct for investigation. The AG understood that the subject had not been suspended or terminated, so the evaluation-record release test was not met. A complaint form could also be a personnel record of the complainant. For the requested complainant's file, the custodian needed to apply the personnel-records privacy test to reasonably separable content that did not evaluate the accused. The AG noted a strong privacy interest in the complainant's identity.

The exit questionnaires were personnel records of the departing employees. The AG did not view them as evaluation records of a supervisor mentioned in some answers. He said some redacted portions might be the supervisor's personnel records, a classification for the custodian to decide first. He saw no basis for the existing redactions under the personnel-records test, but could not give a definitive answer without potentially relevant facts or circumstances.

What this means for you

Records custodians

The opinion calls for applying the relevant disclosure test to each person's interest in a mixed record. For the complaint forms, the accused employee's evaluation-record interest and the complainant's personnel-record interest require separate treatment. For the exit questionnaires, the custodian must first decide whether any portions about the supervisor are his personnel records and then apply the privacy balancing test.

Employees and requesters

The AG did not approve release of the complaint forms as evaluation records when the subject had not been suspended or terminated. He also did not make a final determination that every existing exit-questionnaire redaction must be removed. The decision depends on the classification and circumstances described in the opinion.

Common questions

Are discrimination and harassment complaint forms public under FOIA? The forms were evaluation records of the person complained about and personnel records of complainants. In this case, the accused had not been suspended or terminated, so the evaluation-record test barred release on that basis. The custodian had to assess reasonably separable complainant content under the personnel-records test.

Are exit questionnaires evaluations of a supervisor they mention? The AG said no on the records he reviewed: their purpose did not appear to be evaluating that supervisor. Some portions may nevertheless be the supervisor's personnel records.

Did the AG approve the custodian's exit-questionnaire redactions? No. He saw no basis for them under the personnel-records test, but said additional facts could matter and left the initial classification and balancing to the custodian.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) governs personnel records and requires a privacy balancing test, discussed in Young v. Rice. A.C.A. § 25-19-105(c)(1) governs evaluation records and requires suspension or termination, administrative finality, a connection to the decision, and a compelling public interest before release. The AG applied these rules to mixed records by considering each person's relationship to the relevant portions. Footnote citations in the original opinion support the statutory tests and prior opinions on complainant privacy.

Citations

• A.C.A. § 25-19-105(b)(12); § 25-19-105(c)(1)
• 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. 2015-129

Source

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

Original opinion text

Opinion No. 2023-074

August 16, 2023

Adam Fogleman
Pulaski County Attorney
201 South Broadway, Suite 400
Little Rock, Arkansas 72201

Dear Mr. Fogleman:
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 the Pulaski County’s Human Resources Department has received the following requests for records under the FOIA:
• All copies of anything related to [Department Director]. Including, but not limited to, any complaints about him during his time as a county employee that led to adverse action or no action; and

• Personnel files for all individuals terminated in Pulaski County Community Services/Housing Division this year.

You have identified two sets of records that you believe are responsive to this request, which you have provided for my review:
• A set of records containing complaints, completed on county forms, and submitted to the Human Resources department as directed by the County’s Personnel Policy; and

• A set of records containing Terminating Employee Exit Questionnaires, which are forms completed by employees who voluntarily separate from county employment.

You do not indicate how you have classified each document. Instead, you simply state that the records “appear to be mixed records, containing information that renders them Adam Fogleman Pulaski County Attorney Opinion No. 2023-074 Page 2

personnel records and to some extent employee evaluation records.” You have provided copies of the records with your proposed redactions, although you do not explain the reasons for your redactions. You have asked my opinion as to the proper classification of the records and whether they are subject to release under the FOIA.

RESPONSE
In my opinion, your decision to release the records as redacted is only partly 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.

The first two elements appear to be met. The request was made to Pulaski County, which is a public entity subject to the FOIA. And the records you intend to disclose appear to be 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 Accordingly, given that I have no information to suggest that the presumption can be rebutted, I will focus on whether any exceptions prevent the documents’ disclosure.

The FOIA contains two exemptions for two groups of documents normally found in employees’ personnel files. 4 For purposes of the FOIA, these items can usually be divided

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). 2 Id.
3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he 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 ‘constitute a record of the performance or lack of performance of official functions,”’ citing Ark. Att’y Gen. Op. 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., 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). Adam Fogleman Pulaski County Attorney Opinion No. 2023-074 Page 3

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 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. 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. 7 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.” 8 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. 9 The balancing test, which takes place with the scale already tipped in favor of disclosure, 10 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. 11 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

5
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.” 6 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.” 7 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, 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. supra, at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
Adam Fogleman
Pulaski County Attorney
Opinion No. 2023-074
Page 4

when she must determine whether the privacy 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 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. 14

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. 15

3. 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) that detail the performance or lack of performance of the employee (3) with regard to a specific incident or incidents. 16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 17

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

12
Id., 826 S.W.2d at 255.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-022, 94-198; Watkins et al., supra, at 207.
15
See Ark. Code Ann. § 25-19-105(b)(13).
16
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. 17 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
Adam Fogleman
Pulaski County Attorney
Opinion No. 2023-074
Page 5

4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 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

4. Mixed records. Some 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 other person’s personnel record, or (3) more than one person’s personnel record. 20 When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.
5. Classification and disclosure of the complaint forms. The Discrimination and
   Harassment Complaint Forms are mixed records. One the one hand, they can be classified as the evaluation records of the subject of the complaints. The county created the complaint form as a means for employees to report alleged instances of discrimination and harassment. The form also requests specific information and directs the complainant to give detailed information regarding incidents of discrimination, harassment, or retaliation. Complainants are encouraged to include additional materials that “may assist in the investigation process.” Thus, even though each complaint is submitted by an employee, it is created by and completed at the behest of the employer to evaluate another employee with respect to a specific incident of harassment or discrimination, making it an evaluation record. 21 Employee evaluation records cannot be released unless the above four-part test for release is met. It is my understanding that the subject of the complaint has not been suspended or terminated. Therefore, the complaint forms must be withheld from release under the test for evaluation records. On the other hand, the complaint forms also qualify as the personnel records of the complainants. Your correspondence suggests that the personnel file of only one of the two complainants has been requested. The custodian should therefore conduct the personnel records balancing test with respect to any reasonably segregable portion of that complaint that pertains to the complainant but does not evaluate the complained-about employee. 22 I only have the unredacted complaint form before me, so I do not know what redactions the custodian has made. I will note, however, that the complaining employee has a high privacy

18
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
19
E.g., Ark. Att’y Gen. Op. 96-168.
20
See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).
21
See supra text accompanying note 16.
22
See A.C.A. § 25-19-105(f)(2); Ark. Att’y Gen. Op. 2012-083.
Adam Fogleman
Pulaski County Attorney
Opinion No. 2023-074
Page 6

interest at stake, given the nature of the allegations. This office has previously opined that a complainant’s identifying information should be redacted from otherwise releasable employment records regarding allegations of sexual harassment. 23

6. Classification and disclosure of exit questionnaires. The Terminating Employees Exit
   Questionnaires clearly constitute the personnel records of the terminating employees. As such, they are subject to the personnel records balancing test. While you have referred to all the records as “mixed records,” it is not clear how else you may have classified the exit questionnaires. But I gather from your redactions that you believe the exit questionnaires also constitute the evaluation records of the terminating employees’ supervisor, whose performance is mentioned in some questions and comments. If this is your decision, I do not believe it is consistent with the FOIA. Although the exit questionnaire is created by the employer and its contents are completed at the behest of the employer, it does not appear to me that the questionnaire’s purpose is to evaluate the supervisor and his performance or lack of performance on the job. Therefore, they do not meet the definition of an evaluation record. It is possible, however, that the redacted portions of the questionnaires sufficiently pertain to the supervisor to constitute his personnel records. This is a decision for the custodian to make in the first instance. If the custodian decides that those portions of the questionnaires are the supervisor’s personnel records, the custodian should conduct the balancing test with respect to those portions as well. I do not see a basis for the existing redactions on the exit questionnaires under the personnel records balancing test, either when considering the privacy interests of the terminating employees or of the supervisor. But I cannot definitively opine in this regard, as there may be additional facts or circumstances of which I am unaware. Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

23
See Ark. Att’y Gen. Op. 2015-129.