Can a university release an employee's discrimination complaint while withholding the outcome letter from FOIA?
Plain-English summary
UA Little Rock received an FOIA request for four retaliation complaints, one religious discrimination complaint, and the outcomes. The university's custodian released the complaints (with redactions) but withheld a letter that informed the complainant of the investigation outcome. Some subjects of the records objected to release of the complaint. The custodian asked the AG whether the dual decision (release the complaint, withhold the letter) was consistent with FOIA. The AG: only partly.
The framework: three categories of employee records. Personnel records (open to public inspection unless disclosure would be a "clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12); the Young v. Rice balancing test applies). Employee-evaluation records (records created by or for the employer to evaluate the employee, governed by § 25-19-105(c)(1) and the four-part disclosure test). Mixed records: a single document that contains personnel-record content for one employee and evaluation content for another (or multiple personnel records of multiple people). For mixed records, the custodian applies each test to the relevant portion.
The complaint. The retaliation complaint is a mixed personnel record: it is the complainant's personnel record (their account of what happened to them) and the personnel record of each complained-about employee (allegations against them). The custodian decided release would not be a "clearly unwarranted invasion of personal privacy" for any of the employees, redacted minor identifying details, and released. The AG agreed: that decision is consistent with FOIA.
The outcome letter. The letter is also a mixed record. As to the complained-about employees, it is an evaluation record (the university created it after investigating an allegation; it details the investigation outcome). The four-part test applies. Because none of the subjects were suspended or terminated, the first element fails, and the evaluation portion of the letter must be withheld.
But the letter is also the complainant's personnel record. Withholding it as to the complainant requires the Young v. Rice balancing test (clearly unwarranted invasion of the complainant's personal privacy). The AG saw nothing in the letter that would meet that standard. The letter contains less personal information than the complaint and email chain that the custodian already deemed releasable. So the custodian's decision to withhold the letter under the personnel-records test was inconsistent with FOIA. Any reasonably segregable portion of the letter that pertains only to the complainant (and does not evaluate the complained-about employees or reveal investigative information) must be released.
What this means for you
Records custodians at universities and other public employers
When a single document contains content about multiple employees, run separate analyses for each employee. The same letter can be an evaluation record for the subject of an investigation (and thus protected if no suspension or termination) AND a personnel record for the complainant (and thus subject to release under the balancing test).
Reasonably segregable portions are key. Section 25-19-105(f)(2) requires you to release segregable portions of a record even when other portions are exempt. Don't refuse the whole letter when a redacted version that releases only the complainant-pertinent portion would comply.
For investigations that end without suspension or termination, the four-part evaluation test will fail at element one. That's the standard outcome: investigations that find no wrongdoing or insufficient evidence stay protected. But that protection is only for the evaluation portion as to the subject; the complainant's parallel right to disclosure under personnel-records analysis still operates.
Employee complainants
If you submit a complaint and the outcome letter becomes the subject of an FOIA request, your privacy interest is real but limited. Generic outcome letters that say "we received your complaint, investigated, and concluded X" usually do not contain the kind of personal/intimate information that triggers the balancing test against release.
If you have legitimate privacy concerns, raise them specifically. Ask the custodian to redact specific data (your home address, family information, medical details). Don't expect a blanket withholding to survive scrutiny.
Employees who are subjects of complaints
If an investigation against you ended without suspension or termination, the evaluation-records test protects the investigative file from disclosure. But this protection has a ceiling: if the document is also someone else's personnel record (the complainant's), that other person's right to access controls those portions.
In practice: you cannot prevent disclosure of a complainant's parallel personnel record just because your investigation ended without discipline.
FOIA requesters and news media
Push on mixed records. When a custodian withholds the entire outcome letter citing the evaluation exemption, ask: who is the letter addressed to? Whose personnel record is it? If it is addressed to the complainant, it is also their personnel record, and the segregable-portion rule applies.
Employment attorneys
This opinion is useful citation in cases where a public employer is treating outcome letters as categorically exempt. The AG's reading is more nuanced and recognizes the dual nature of these documents.
Common questions
Why is a complaint a personnel record and not an evaluation record?
A complaint is initiated by the complainant, not by the employer "to evaluate" the subject. The employer didn't write it; the complainant did. So the second element of the evaluation-record definition (created by/for the employer to evaluate) fails.
An investigation outcome letter to the complainant is just an "FYI." How can it be the complainant's personnel record?
Because it pertains to the complainant individually as an employee. The complainant's complaint, the response, and the outcome are all part of their employment file. It is the complainant's personnel record, even though the employer prepared it.
The university's redaction-via-whiteout method has been criticized in other AG opinions. What's required?
Section 25-19-105(f)(3) requires the custodian to indicate the amount of information deleted on the released portion. Whiteout (which leaves no visible mark) does not satisfy this; blackout (which leaves a visible block) is the proper method. Op. 2023-078 develops this point in detail.
Will the complainant's outcome letter reveal who the complainant is?
It depends on what the letter says. If it directly identifies the complainant or contains information that effectively identifies them, the complainant has a real privacy interest. The custodian should still apply the personnel-records balancing test before withholding entirely.
Can the complainant block release of records about themselves?
Generally no. The personnel-records test is objective; the subject's preferences are not controlling. Op. 2023-102 (released disciplinary records over a subject officer's objection on requester's intent grounds) makes this explicit.
Background and statutory framework
Two FOIA exemptions cover most personnel-file content. A.C.A. § 25-19-105(b)(12) protects personnel records from disclosure "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." § 25-19-105(c)(1) protects employee evaluation or job performance records, with the four-part disclosure test triggered only on suspension or termination.
The Arkansas Supreme Court's Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), articulates the personnel-records balancing test: "a thumb on the scale" in favor of disclosure, then a two-step analysis weighing privacy against public interest. Both Young and Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, are Arkansas Supreme Court decisions; Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466, is Arkansas Court of Appeals.
The mixed-records doctrine is developed in past AG opinions including Op. 2020-037 and Op. 2014-111. Suspension or termination letters can be either classification depending on whether they "merely reflect the change in status" (personnel record per Op. 2006-147) or "elaborate" with reasons (evaluation record per Op. 2001-276).
Section 25-19-105(f)(2) requires release of reasonably segregable portions. Past AG opinions (Op. 2012-083) reinforce the segregability requirement.
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(1) (employee evaluation exemption and four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism)
- A.C.A. § 25-19-105(f)(2) (segregable portions)
- Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992)
- Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471
- Ark. Att'y Gen. Ops. 2015-072, 99-147, 2015-057, 2009-067, 2006-038, 2003-073, 2020-001, 2019-022, 2012-077, 2001-276, 2001-112, 2006-147, 2002-150, 2001-185, 2008-065, 96-168, 2020-037, 2014-111, 2012-083, 95-351, 93-055
Source
Original opinion text
Opinion No. 2023-086
September 19, 2023
Charles Lyford
Associate General Counsel
University of Arkansas at Little Rock
2801 South University Avenue
Little Rock, Arkansas 72204-1099
Dear Mr. Lyford:
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 University of Arkansas at Little Rock has received a request under the
FOIA for "four retaliation complaints and one religious discrimination complaint made by
faculty and the outcomes of these complaints."
You have identified records that you believe are responsive to this request. Among these
records are (1) an email chain that contains a retaliation complaint and (2) a letter to a
complainant relaying the outcome of an investigation. You have classified the complaint
as a personnel record and determined that it should be released with a redaction. You have
classified the letter to the complainant as both an employee-evaluation record and as a
personnel record. You have also determined that the letter is exempt from disclosure under
both tests for release.
Because some of the subjects of the records object to the records' release without additional
redactions, you have asked my opinion as to the proper classification of these records and
whether they are subject to release under the FOIA as redacted.
RESPONSE
In my opinion, your decision to release the complaint and withhold the letter is only partly
consistent with the FOIA.
DISCUSSION
For purposes of the FOIA, two groups of records are normally found in employees'
personnel files: "personnel records" or "employee evaluation or job performance records."
These two sets of records' definitions and tests for disclosure differ significantly.
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.
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 document contains information in which the
employee has 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 must determine whether the
privacy interest is outweighed by the public's interest in disclosure.
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. And this office has opined that
letters of suspension and termination constitute employee-evaluation records if they
contain the reasons for the suspension or termination.
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).
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.
3. 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.
4. Application to the complaint. The retaliation complaint can be classified as a mixed
record because it is both the personnel record of the complainant and the personnel record
of the complained-about employees. Accordingly, it is subject to the personnel records
balancing test. You have determined that the record's release would not constitute "a
clearly unwarranted invasion of personal privacy" for any of the employees and that it
should be released as redacted. In my opinion, this decision is consistent with the FOIA.
5. Application to the letter. The letter to the complainant is also a mixed record. One the
one hand, it is the evaluation record of the subjects of the complaint because the university
created the letter following an investigation into a specific allegation, and the letter details
the investigation's outcome. On the other hand, the letter is also the personnel record of
the complainant. You have, therefore, correctly classified the letter as a mixed record.
Employee-evaluation records cannot be released unless the above four-part test for release
is met. Because none of the subjects of the complaint were suspended or terminated, the
portion of the letter constituting an employee-evaluation record must be withheld from
release under the test for evaluation records.
As the complainant's personnel record, the letter must be disclosed except "to the extent
that disclosure would constitute a clearly unwarranted invasion of personal privacy." You
say that the university has "weighed the public's interest in accessing the records against
the individual's interest in keeping the records private and determined that disclosure of
the records is not appropriate." In my opinion, this decision to withhold the letter under the
personnel records balancing test is inconsistent with the FOIA. I see nothing in the letter
that would render its release a clearly unwarranted invasion of the complainant's personal
privacy. The letter contains less personal information than the complaint and its
accompanying email chain, which you have deemed subject to release under the balancing
test. Consequently, it is my opinion that the custodian should conduct the personnel records
balancing test with respect to any reasonably segregable portion of that letter that pertains
to the complainant but does not evaluate the complained-about employees or reveal
investigative information.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I
hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General