Can an Arkansas school district refuse to release records about an employee's administrative leave under FOIA?

Plain-English summary

A requester sought notices placing a North Little Rock School District employee on administrative leave. The district custodian classified them as employee-evaluation records and withheld them. The Attorney General considered only whether the employee-evaluation exemption in A.C.A. § 25-19-105(c)(1) supported that decision.

First, the custodian must determine whether the employee was actually placed on administrative leave and whether the leave was disciplinary. The opinion distinguishes a routine, non-disciplinary suspension initiated without regard to an employee's conduct from a disciplinary suspension initiated because the employee allegedly fell below expectations. If either required fact is absent, withholding under the evaluation exemption is inconsistent with FOIA.

If the leave was disciplinary, disclosure turns on four requirements: the employee was suspended or terminated; that decision is administratively final; the records formed a basis for it; and the public has a compelling interest in disclosure. The AG lacked enough information to decide whether those requirements were met here. Because the opinion analyzes only the evaluation exemption, its conclusion about that exemption does not resolve whether some other ground for withholding applies.

What this means for you

FOIA requesters

If a custodian invokes the employee-evaluation exemption for an administrative-leave notice, ask whether the leave was disciplinary. A routine suspension imposed without regard to alleged misconduct does not support withholding under this exemption. If the suspension was disciplinary, the four disclosure requirements matter. This opinion does not determine the status of the requested notices or analyze other exemptions.

Records custodians

Determine whether the requested records reflect a disciplinary or non-disciplinary suspension before relying on § 25-19-105(c)(1). The word "administrative" alone does not settle that question. For disciplinary evaluation records, assess administrative finality, whether the records formed a basis for the decision, and whether disclosure serves a compelling public interest. The opinion supplies no findings on those facts in this case.

Public employees

The classification depends on why the leave was initiated: a routine policy unrelated to an assessment of conduct, or a response to alleged conduct below expectations. The AG's analysis does not decide whether this employee's leave was disciplinary or whether another FOIA provision could affect access to the notices.

Common questions

Does a notice of non-disciplinary administrative leave qualify for withholding under the employee-evaluation exemption? The opinion says withholding under § 25-19-105(c)(1) would be inconsistent with FOIA if the suspension was non-disciplinary. It does not address other exemptions.

Does the label "administrative leave" decide whether the exemption applies? No. The custodian must determine whether the suspension was initiated because the employee's conduct allegedly fell below expectations or under a routine policy without regard to that question.

When can a disciplinary employee-evaluation record be disclosed? All four requirements must be met: suspension or termination, administrative finality, a record that formed a basis for that decision, and a compelling public interest in disclosure.

Did the AG decide whether the school district should disclose the requested notices? No. The AG lacked facts to apply the four-part test and limited the opinion to the evaluation exemption.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) permits the custodian, requester, or subject of certain employee-related records to seek an AG opinion about a custodian's disclosure decision. The school district had invoked the employee-evaluation exemption, so this opinion examines only that exemption.

The opinion cites Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93, for the definition of employee-evaluation records: employer-created or employer-requested records to evaluate an employee that detail job performance or lack of performance. It also cites Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471, and a prior AG opinion on disciplinary and non-disciplinary suspensions. A.C.A. § 25-19-105(c)(1) supplies the four-part disclosure test for qualifying evaluation records.

Citations

• A.C.A. § 25-19-105(c)(1)
• A.C.A. § 25-19-105(c)(3)(B)(i)
• 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. Op. 2014-110

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2023-096

October 11, 2023

Mr. Jimmie Cavin
Via email only: [email protected]

Dear Mr. Cavin:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the requester of public 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.

You have made a FOIA request to the North Little Rock School District seeking “all notices to Michele Blakely putting her on Administrative Leave.” It appears that the custodian for the school district has classified the records as employee evaluations and withheld them from disclosure. You ask whether the custodian’s decision is consistent with the FOIA.

RESPONSE

Since the custodian has withheld the records under the employee-evaluation exemption, the propriety of the custodian’s decision depends on (1) whether Ms. Blakely was, in fact, placed on “administrative leave”; and (2) if so, whether that “administrative leave” was disciplinary in nature. If the answer to either question is “no,” then the custodian’s decision is inconsistent with the FOIA. But if the answer to both questions is “yes,” then the analysis shifts to whether the test for disclosure, which is detailed below, has been met.

DISCUSSION
Since the custodian has based his decision on the employee-evaluation exemption, I will limit my analysis to that exemption.

1. Classifying the records. While the FOIA does not define “employee evaluation or job
   performance records,” 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

                           323 CENTER STREET, SU ITE 200
                           LITTLE ROCK, ARKANSAS 72201
   

   Mr. Jimmie Cavin
   Opinion No. 2023-096
   Page 2

detail the employee’s performance or lack of performance on the job.1 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.2

The set of records requested here are those that reflect an “administrative suspension.” This office has long concluded that, for purposes of the FOIA, suspensions can be classified as disciplinary or non-disciplinary (the latter is sometimes called “administrative leave” or “administrative suspension”).3 A suspension is non-disciplinary when it occurs as a result of a routine, employer policy that is initiated without any regard for the propriety of the employee’s conduct. For example, it is common for police officers to be suspended with pay after discharging a firearm. During the period of this non-disciplinary suspension, the police department investigates the circumstances. The investigation could result in some kind of disciplinary action. Or it might result in commendation. The key factor is that a non-disciplinary suspension is initiated without regard to whether the employee's conduct fell below expectations. In contrast, a disciplinary suspension is always initiated precisely because the employee's conduct allegedly fell below expectations.

The custodian must determine whether the records that reflect the “administrative suspension” are disciplinary or non-disciplinary. If they are non-disciplinary, then the custodian’s decision to withhold the records under A.C.A. § 25-19-105(c)(1) is inconsistent with the FOIA. But if the records are disciplinary in nature, then the propriety of the decision to withhold the records turns on whether the four-part test for the disclosure of evaluations has been met.

2. Disclosure of employee-evaluations. If a document qualifies as an employee-evaluation record,
   the document cannot be released unless all the following elements have been met:

   • Suspension or termination. The employee was suspended or terminated;

   • Administrative finality. The suspension or termination is administratively final and is,
   therefore, incapable of any administrative reversal or modification;

   • Relevance. The records in question formed a basis for the decision to suspend or terminate
   the employee; and

   • Compelling interest. The public has a compelling interest in the disclosure of the records
   in question.4

1
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. 2 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
3
See, e.g., Ark. Att’y Gen. Op. 2014-110.
4
A.C.A. § 25-19-105(c)(1).
Mr. Jimmie Cavin
Opinion No. 2023-096
Page 3

I lack sufficient information to assess whether the foregoing four-part test has been met in this case.

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

Sincerely,

TIM GRIFFIN
Attorney General