Can a university release an employee's discrimination complaint while withholding the outcome letter from FOIA?

Plain-English summary

A University of Arkansas at Little Rock custodian asked whether it could release a redacted retaliation complaint but withhold a letter reporting the investigation outcome. The AG found the proposed treatment partly consistent with Arkansas FOIA.

The retaliation complaint was a mixed personnel record of the complainant and the employees complained about. The custodian had applied the personnel-records privacy test and proposed release with a redaction. The AG agreed that decision was consistent with FOIA.

The outcome letter was also mixed. For employees investigated, it was an evaluation record, and that portion could not be released because none were suspended or terminated. For the complainant, it was a personnel record. The AG saw nothing in the letter that would make its release a clearly unwarranted invasion of the complainant's privacy, but directed the custodian to apply the personnel-records balancing test to any reasonably separable portion that concerned the complainant without evaluating the other employees or revealing investigative information.

What this means for you

Records custodians

The opinion calls for separate disclosure tests for each person's interest in a mixed record. It approves the proposed redacted complaint release and rejects a blanket privacy rationale for withholding the complainant's portions of the outcome letter. It instructs the custodian to assess those portions under the personnel-records test, rather than ordering every separable portion released.

Employees and FOIA requesters

The investigation outcome letter cannot be treated as wholly releasable or wholly exempt solely because it concerns multiple people. The evaluation-record protection for employees who were not suspended or terminated remains, while reasonably separable content about the complainant requires its own privacy analysis.

Common questions

Was release of the redacted retaliation complaint consistent with FOIA? Yes. The AG agreed with the custodian's decision under the personnel-records test.

Can the university release the outcome letter in full? No. The part evaluating employees who were not suspended or terminated must be withheld under the evaluation-record test.

Must the custodian release every portion about the complainant? The AG said the custodian should first conduct the personnel-records balancing test on reasonably separable portions concerning the complainant that do not evaluate others or reveal investigative information.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) governs personnel records, and § 25-19-105(c)(1) governs employee evaluation records. The opinion uses Young v. Rice for the privacy test and discusses mixed records in which a single document has different classifications for different employees. Footnote 14 cites § 25-19-105(f)(2) and an earlier opinion for the treatment of separable portions.

Citations

• A.C.A. § 25-19-105(b)(12); § 25-19-105(c)(1); § 25-19-105(f)(2)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Ark. Att’y Gen. Ops. 2020-037, 2012-083

Source

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

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. Charles Lyford Associate General Counsel Opinion No. 2023-086 Page 2

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. 1

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.” 2 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. 3 The balancing test, which takes place with the scale already tipped in favor of disclosure, 4 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. 5 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. 6

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. 7 This exception includes records generated while investigating allegations of employee misconduct that detail

1
E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
2
Ark. Code Ann. § 25-19-105(b)(12).
3
308 Ark. 593, 826 S.W.2d 252 (1992).
4
Watkins et al. supra, at 208.
5
Young, 308 Ark. at 598, 826 S.W.2d at 255.
6
Id., 826 S.W.2d at 255.
7
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. Charles Lyford Associate General Counsel Opinion No. 2023-086 Page 3

incidents that gave rise to an allegation of misconduct. 8 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. 9

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). 10
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. 11

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. 12 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.

8
E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
9
E.g., Ark. Att’y Gen. Ops. 2020-001, 2019-022, 2012-077, 2001-276, 2001-112. If, however, the letter merely reflects the change in status, without elaboration, this office has opined that the letter is properly classified as a “personnel record” under A.C.A. § 25-19-105(b)(12). See, e.g., Ark. Att’y Gen. Ops. 2006-147, 2002-150, 2001-185. 10 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
11
E.g., Ark. Att’y Gen. Op. 96-168.
12
See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).
Charles Lyford
Associate General Counsel
Opinion No. 2023-086
Page 4

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. 13 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. 14 Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

13
This office has consistently held that records generated as part of an internal investigation constitute employee-evaluation records. See, e.g., Ark. Att’y Gen. Op. 2014-111 (and opinions cited therein). 14 See A.C.A. § 25-19-105(f)(2); Ark. Att’y Gen. Op. 2012-083.