Are workplace harassment complaint forms and exit questionnaires personnel records or evaluation records under Arkansas FOIA?
Plain-English summary
Pulaski County received two FOIA requests: (1) all records about a department director, including any complaints against him; and (2) the personnel files of all employees terminated in the Community Services/Housing Division that year. The custodian gathered two sets of responsive records (county discrimination/harassment complaint forms; exit questionnaires from voluntarily-departing employees) and proposed redactions, then asked the AG whether the release was consistent with FOIA. The AG said: only partly.
Complaint forms are mixed records. When an employee fills out the county's discrimination/harassment complaint form, the form is two things at once. Looked at from the perspective of the person being complained about, the form is created by the employer (the county) for the purpose of evaluating that person's conduct in a specific incident. That makes it an evaluation record under Thomas v. Hall. Evaluation records cannot be released unless the four-part test is met, including suspension or termination of the subject. Here, the department director was not suspended or terminated, so the complaint forms must be withheld as evaluation records of the accused.
But the same form is also a personnel record of the complainant, because it pertains to that individual employee and was not created to evaluate the complainant. So the custodian must run the Young v. Rice balancing test on the segregable portions about the complainant. Importantly, the complainant in a sexual harassment complaint has a high privacy interest, so prior AG opinions have held that the complainant's identifying information should be redacted (Op. 2015-129).
Exit questionnaires are personnel records of the departing employees. They are not evaluation records of the supervisor mentioned in some answers, because the questionnaire's purpose is not to evaluate the supervisor. The custodian's redactions of supervisor-related content lack a basis under the personnel-records balancing test. The supervisor has at most a personnel-records interest in the segregable portions that pertain to him personally, and the custodian should run the balancing test on those segregable portions. The AG saw no basis for the existing redactions.
The takeaway: the custodian was right to view the records as "mixed" but applied the wrong tests. Evaluation records of the accused (the complaint forms) get the four-part test. Personnel records of the complainant or the supervisor get the Young balancing test. Exit questionnaires are not evaluation records of supervisors who happen to be mentioned.
What this means for you
County and city HR custodians
When you receive a FOIA request that touches an internal complaint file, run two analyses, not one. The same form is usually:
- An evaluation record of the person being complained about (apply the four-part test: suspension or termination, finality, relevance, compelling interest). If the accused has not been suspended or terminated, the form is withheld in its entirety as to that person.
- A personnel record of the complainant (apply the Young balancing test on segregable portions about the complainant, with strong protection for sexual harassment complainants per Op. 2015-129).
For exit questionnaires, classify them as personnel records of the departing employee. Do not reflexively treat the supervisor named in the questionnaire as having an evaluation-record interest. The form was not designed to evaluate the supervisor; it was designed to capture the departing employee's experience. The supervisor may have a personnel-records interest only in segregable portions that pertain personally to him, and even then the Young balancing test usually favors disclosure of routine workplace information.
When you redact, document the basis for each redaction. The AG can only opine on what the custodian provides. Unexplained redactions get harder questions on review.
Discrimination and harassment complainants
If you file a county or city complaint and the form gets requested under FOIA, your identifying information should be redacted (Op. 2015-129) as a matter of personnel-records analysis. The substance of your complaint becomes part of an evaluation record of the person you complained about, which generally cannot be released unless that person has been suspended or terminated and the public-interest test is met. So while the complaint exists in the file forever, FOIA disclosure is limited.
Departing employees filling out exit questionnaires
The form is a personnel record about you. Under FOIA, public-employee exit questionnaires are presumptively releasable. Standard workplace information (your reasons for leaving, your role, routine feedback) likely will be released. If you write specifics that name colleagues or that touch on personal-privacy matters (medical reasons, family hardships), flag them and ask HR how those will be redacted before submitting.
News media and FOIA requesters
When an agency withholds an entire complaint file claiming "personnel records," push back on the analysis: the file may include both evaluation records of the accused (correctly withheld absent suspension or termination) and personnel records of the complainant (releasable with limited redactions). Ask the agency to segregate and apply the right test to each portion. For exit questionnaires, the agency rarely has grounds to withhold supervisor-related content as evaluation records.
County attorneys advising HR
Train HR on the two-test mental model for mixed records. The most common error is applying the personnel-records balancing test to a complaint form (which would over-release to the public against the accused) or applying the evaluation-records four-part test to an exit questionnaire (which would over-withhold supervisor-related content). Walk each side through the relevant test. Use the four-part test for the accused and the balancing test for the complainant, segregating the form into the appropriate portions.
Common questions
The accused was suspended or terminated. Does that change the analysis?
Yes. If the accused was suspended or terminated and the discipline is administratively final, the complaint form (as an evaluation record) becomes potentially releasable under the four-part test. The remaining elements are relevance (the complaint formed a basis for the discipline) and compelling public interest. For supervisors and high-trust positions, compelling interest is often present.
Can I FOIA-request my own personnel file?
Yes, but the custodian still owes the same analysis. As the subject of the records, you have an extra path: you can ask the AG under § 25-19-105(c)(3)(B)(i) to review the custodian's release decision.
Do I have a right to know who complained about me?
Generally no, especially in sexual harassment contexts. The AG has consistently held that the complainant's identifying information should be redacted to protect the complainant's privacy. The substance of the allegations may eventually be releasable if you are suspended or terminated, but the complainant's identity stays protected.
The supervisor is named all over my exit questionnaire. Can he block release?
Probably not. The questionnaire is your personnel record, not his evaluation record. The supervisor might have a personnel-records interest in segregable portions that pertain personally to him, but standard workplace observations about supervision rarely meet the "clearly unwarranted invasion of personal privacy" bar.
What about the supervisor's evaluation by his own boss?
That is a separate document. Formal supervisor evaluations are evaluation records of the supervisor and would require the four-part test (suspension or termination, finality, relevance, compelling interest) to be released.
The custodian whited out our home addresses. Is that proper?
Personal contact information of public employees (personal phone numbers, personal email addresses, home addresses) is exempt under § 25-19-105(b)(13). The redaction itself is correct. But under Op. 2023-078, the redaction tool should be a black box (not whiteout), so the requester can see where and how much was redacted.
Background and statutory framework
Arkansas FOIA at A.C.A. § 25-19-105(b)(12) exempts "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), adopted a two-step balancing test: assess whether the privacy interest is more than de minimis, and if so, weigh privacy against public interest, with the scale tipped in favor of disclosure.
The evaluation-record exemption, A.C.A. § 25-19-105(c)(1), requires four elements before release: suspension or termination, administrative finality, relevance (records formed a basis for the discipline), and compelling public interest. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-element definition of evaluation records: (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance with regard to a specific incident. The Court of Appeals reaffirmed this in Davis v. Van Buren School Dist., 2019 Ark. App. 466.
Mixed records are addressed in Ark. Att'y Gen. Op. 2020-037 and prior opinions. When a record contains both kinds of content, the custodian segregates and applies the appropriate test to each segregable portion. Section 25-19-105(f)(2) authorizes redaction to facilitate release of segregable portions.
Op. 2015-129 establishes the rule that complainant identifying information in sexual harassment complaint records should be redacted under the personnel-records test, even if the substance of the complaint is otherwise releasable.
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(b)(13) (personal contact information exemption)
- A.C.A. § 25-19-105(c)(1) (evaluation records exemption and four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (subject/custodian/requester right to AG review)
- A.C.A. § 25-19-105(f)(2) (segregable portions / redaction)
- Pulaski Cty. v. Ark. Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007)
- 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. 2020-037, 2015-129, 2015-072, 2015-057, 2012-083, 2009-067, 2008-065, 2007-064, 2006-038, 2003-073, 2001-112, 2001-022, 99-147, 97-368, 96-168, 95-351, 94-198, 93-055
Source
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 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
- 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. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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. 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.
- 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 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.
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.
- 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. 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:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
- The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).
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.
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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. When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.
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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.
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. 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 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.
- 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