Can an Arkansas school district refuse to release records about an employee's administrative leave under FOIA?
Plain-English summary
A FOIA requester named Jimmie Cavin asked the North Little Rock School District for "all notices to Michele Blakely putting her on Administrative Leave." The custodian classified the records as employee-evaluation records and withheld them. Cavin invoked his statutory right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether that withholding is consistent with FOIA. The AG's answer breaks into two layers.
Layer one: is the leave disciplinary or non-disciplinary?
This office has long held that suspensions for FOIA purposes come in two flavors:
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Non-disciplinary (sometimes called "administrative leave" or "administrative suspension"): a routine, policy-based action taken without regard to whether the employee did anything wrong. Example: a police officer placed on paid leave automatically after discharging a firearm, while the department investigates. The investigation might end in commendation or discipline; the suspension itself is just procedural. Records of a non-disciplinary suspension are NOT employee-evaluation records under FOIA, and the evaluation exemption does not protect them. The custodian must release.
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Disciplinary: a suspension initiated specifically because the employee's conduct allegedly fell below expectations. These records ARE evaluation records.
The school custodian must determine which of these the Blakely leave actually was. If non-disciplinary, the withholding is inconsistent with FOIA and the records must be released.
Layer two: if disciplinary, can the records be withheld?
Even if the leave was disciplinary, the records can still be released if all four elements of the FOIA evaluation-disclosure test are met:
- Suspension or termination. The employee was suspended or terminated. (Yes here, by definition.)
- Administrative finality. The suspension or termination is administratively final, not subject to further administrative reversal or modification.
- Relevance. The records in question formed a basis for the decision to suspend or terminate. (This rules out tangential records that did not actually drive the decision.)
- Compelling public interest. The public has a compelling interest in disclosure.
If all four are met, the records must be released. If any one is missing, withholding is permitted under the evaluation exemption.
The AG explicitly said he lacked the facts to apply the four-part test in this case. The opinion's value is the framework, not a final answer for Blakely's records specifically.
What this means for you
FOIA requesters
When a school district or other public agency withholds records under the employee-evaluation exemption, your first move is to ask whether the underlying suspension was disciplinary or non-disciplinary. If non-disciplinary, the exemption does not even arguably apply.
If the suspension was disciplinary, your case for release depends on the four-part test. Document each element:
- Was the suspension or termination final and not under appeal?
- Did the records you requested actually form the basis for the decision (not just tangential paperwork)?
- Why does the public have a compelling interest in the specific records (not just a general interest in oversight)?
The custodian decides whether to release; a court can override on petition.
Records custodians
Before invoking the evaluation exemption, classify the suspension correctly. A blanket "administrative leave is always exempt" position is wrong under this opinion: non-disciplinary administrative leave is not protected.
If disciplinary, walk through the four elements before withholding. If administrative finality has not yet been reached, the exemption applies and you can withhold. But the moment finality attaches, reconsider against the relevance and compelling-interest elements.
Document your reasoning in the file. If the requester appeals (to the AG via § 25-19-105(c)(3)(B)(i) or to court), your file will be reviewed.
School district administrators
This opinion is targeted to school districts because of the underlying request. The framework applies to any public-employer FOIA situation. Train your records custodians on the disciplinary/non-disciplinary distinction. The cost of incorrectly withholding non-disciplinary leave records is the AG (or a court) ruling against you and ordering release, plus possible attorney's-fee exposure to the requester.
Public employees
If you are placed on administrative leave, ask your supervisor (or HR) in writing whether the leave is disciplinary or non-disciplinary. The answer affects your privacy interest. Non-disciplinary leave records are public; disciplinary leave records may or may not be public depending on the four-part test.
News media
Treat the disciplinary/non-disciplinary distinction as the first question to push when a school or city refuses an FOIA request for personnel records. Cite this opinion. Then push on the four-part test if needed.
HR managers
When you write the leave letter, be specific about which kind it is. A letter that says "you are placed on administrative leave pending investigation" without specifying the basis can be ambiguous; that ambiguity is not helpful in defending an FOIA withholding.
Common questions
My city's mayor was placed on administrative leave during a corruption probe. Can the public see the records?
First, was the leave disciplinary or non-disciplinary? "Pending investigation" leave that is policy-mandated regardless of whether the mayor is found at fault is non-disciplinary; records must be released. Leave that says "you are suspended because of the alleged conduct" is disciplinary; records can be withheld unless the four-part test is met (and likely the test will be met if the matter has reached administrative finality with strong public interest).
The custodian is releasing some records but not others. Is that allowed?
Yes. The evaluation exemption applies to specific records, not categorically to a person's entire personnel file. The custodian can release records that fall outside the exemption (a leave letter that is non-disciplinary, for example) while withholding records that fall within it (an evaluation report that drove a separate disciplinary action).
What does "administrative finality" mean?
The decision is no longer subject to internal appeal, modification, or reversal by the agency. If the employee has filed an internal grievance and a hearing is pending, finality has not attached. Once the agency's appeal process is exhausted (or unappealed within the deadline), finality attaches.
Who decides whether the public has a "compelling interest"?
Initially the custodian, then the AG (on request under § 25-19-105(c)(3)(B)(i)), then a court if litigation follows. The Arkansas Supreme Court in Thomas v. Hall (2012) and Davis v. Van Buren School District (2019, Court of Appeals) approved the AG's framework. "Compelling" generally means more than ordinary curiosity: serious misconduct, public safety implications, fitness-for-duty questions affecting students, or financial integrity issues.
Can I see records of an investigation that is still ongoing?
Probably no. Investigative records that have not yet led to a final disciplinary decision generally fall under the evaluation exemption (administrative finality has not attached). The Arkansas Supreme Court in Thomas v. Hall extended the exemption to investigation records that detail incidents giving rise to the misconduct allegation.
Background and statutory framework
A.C.A. § 25-19-105(c)(1) is the FOIA's employee-evaluation exemption. The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted this office's three-element definition of "employee evaluation or job performance records": records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail performance or lack thereof on the job. Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466, applied that definition. (Both are state appellate decisions: Thomas is Arkansas Supreme Court, Davis is Arkansas Court of Appeals; the citation forms confirm.) Thomas also extended the exemption to records of investigations into employee misconduct that detail incidents giving rise to the misconduct allegation.
The four-part disclosure test for evaluation records derives from § 25-19-105(c)(1) itself: even if a record falls in the exemption, it must be disclosed when (a) the employee was suspended or terminated, (b) the action is administratively final, (c) the records formed the basis for the action, and (d) the public has a compelling interest.
The disciplinary vs. non-disciplinary distinction is an AG-developed framework recognized by past opinions (e.g., Op. 2014-110). The AG opinion appeal process is in § 25-19-105(c)(3)(B)(i), which authorizes the custodian, requester, or subject of certain employee-related records to seek an AG opinion on whether withholding is consistent with FOIA.
Citations
- 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)
- Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93 (definition of evaluation records)
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471
- Ark. Att'y Gen. Ops. 2015-057, 2014-110, 2009-067, 2006-038, 2003-073, 95-351, 93-055
Source
Original opinion text
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
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.
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"). 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.
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