Can a school district withhold a teacher's letter of suspension because the suspension is not yet final?

Plain-English summary

John Huett, a member of the public, submitted a FOIA request to England High School for letters, memos, emails, text messages, or other notifications "to a Teacher and staff informing the teacher of suspension or termination." The custodian provided some records but withheld a teacher's letter of suspension because, the custodian said, "there has been no final administrative resolution by the school board as to [the teacher's] employment status."

Huett asked the AG to review the withholding decision. The school district's attorney, Cody Kees, separately asked for the AG's opinion. Both requests were authorized under A.C.A. § 25-19-105(c)(3)(B)(i).

The AG's analysis turns on a foundational FOIA classification: is the letter a "personnel record" or an "employee evaluation or job performance record"? The right answer depends on whether the suspension was disciplinary or purely administrative.

Personnel record. A letter of suspension is normally a personnel record. Personnel records are released under A.C.A. § 25-19-105(b)(12) unless disclosure would constitute a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. The privacy-disclosure balance is weighted toward disclosure (the famous "thumb on the scale"), with the burden on the resisting party.

Evaluation record. But when (1) the suspension is disciplinary (initiated because the employer believes the employee's conduct fell below expectations) and (2) the letter contains the grounds for the suspension, the letter is an evaluation record subject to A.C.A. § 25-19-105(c)'s four-part test. Two of the four prongs are key here: administrative finality and compelling public interest.

The threshold classification question, then, is whether the suspension was disciplinary or administrative.

Administrative (non-disciplinary) suspension. Initiated as a routine policy step without judgment about the employee's conduct. The classic example: a police officer placed on paid administrative leave after an officer-involved shooting, pending investigation. The leave does not imply wrongdoing; it is procedural while facts get investigated. Letters memorializing this kind of suspension are personnel records.

Disciplinary suspension. Initiated because the employer has already concluded the employee's conduct fell below expectations. The letter typically explains the grounds. This kind of suspension letter is an evaluation record.

The face of the letter sometimes reveals the nature of the suspension. Sometimes it does not. When ambiguous, the custodian must determine, based on all the surrounding facts, whether the suspension is purely administrative.

Application to this letter. The AG could not classify the letter without seeing it (the custodian did not provide it for review). The custodian must:

1. Determine if the suspension is administrative or disciplinary.
2. If administrative: classify as personnel record, apply Young v. Rice balancing, redact only what would be a clearly unwarranted privacy invasion.
3. If disciplinary AND the letter contains the grounds for suspension: classify as evaluation record, withhold until the suspension is administratively final, then apply the four-part test (which the custodian indicated had not yet been met).

The AG declined to address the requester's "several questions" beyond the core review authority, citing prior opinions limiting AG review to whether the custodian's decision is consistent with FOIA.

A footnote notes the AG returned the matter to the custodian to apply the rules without expressly approving or rejecting the withholding. This is a "remand" rather than a final decision.

What this means for you

School district records custodians

The classification question (administrative vs. disciplinary suspension) is the gating decision. Get it right and the rest follows. Get it wrong and you either over-disclose a record that should have been withheld until finality, or you under-disclose a personnel record that should have been released.

Practical decision tree when you receive a FOIA request for a suspension letter:

1. Read the letter. Is it a routine "you are placed on administrative leave pending investigation" or "you are suspended without pay for [stated misconduct]"?
2. If the letter does not clearly say, look at the surrounding facts. Was an investigation completed? Were findings made? Was the employee given a chance to respond? Disciplinary suspensions usually follow a finding; administrative suspensions usually precede one.
3. Document your classification in the file with the reasoning.
4. If you classify as administrative: apply Young balancing. Most administrative-leave letters contain little personal or intimate information that survives the Young test. They typically get released.
5. If you classify as disciplinary: hold until administrative finality. Once final, apply the four-part test. For teacher misconduct cases involving students, the compelling-interest prong is essentially automatic (see Op. 2024-038).

When the requester disagrees with your classification, the AG opinion process under § 25-19-105(c)(3)(B)(i) gives them an avenue to seek review. Your reasoning will be tested.

School administrators

Be careful what you write in suspension letters. A letter that says "you are placed on paid administrative leave pending investigation" is a personnel record, releasable under Young balancing. A letter that says "you are suspended for [misconduct] in violation of [policy]" is an evaluation record, releasable only after finality. The same set of facts can produce either type of letter depending on how it is drafted.

If your goal is operational (keeping the employee out of the building during investigation) without making findings, a clean administrative-leave letter avoids the evaluation-record path. If your goal is disciplinary (sanctioning the employee for known misconduct), you will write an evaluation record and the records will eventually become public after finality.

Teachers and school employees

If you are placed on administrative leave, the letter announcing your leave will likely become a public record under FOIA, with redactions only for clearly unwarranted privacy invasions. The fact of your leave is not protected.

If you are suspended for cause, the letter explaining the suspension is an evaluation record, withheld until the suspension is administratively final. Once final, the record may be released if there is a compelling public interest. For teacher-student misconduct, the compelling-interest prong is essentially automatic.

The objective Young balancing test means your subjective preference for nondisclosure does not matter. The test asks whether disclosure would be a "clearly unwarranted invasion of personal privacy" objectively, not whether you personally would be embarrassed.

Parents and school community

If your child's school has placed a teacher on administrative leave, the leave letter is a public record (subject to standard redactions). You can FOIA it. If the teacher is suspended for cause and the suspension is being challenged through a school-board grievance or hearing, the suspension letter is withheld until that process concludes. After conclusion, you can usually obtain the letter if the conduct involved a teacher-student concern (compelling public interest is presumed in those cases).

FOIA requesters and journalists

Two practical tips for FOIA requests covering this kind of record:

First, your initial request should be broad. "Letters, memos, emails, text messages, or other notifications" related to the personnel action covers all the formats a school district might use. Don't get caught with too narrow a request.

Second, follow up after the administrative process concludes. If the custodian says "not yet administratively final," put a calendar reminder. School-board grievance processes typically conclude within 30-90 days. After conclusion, resubmit the request.

Third, if you suspect the custodian's classification is wrong (e.g., they're calling a disciplinary suspension "administrative" to delay disclosure), use the § 25-19-105(c)(3)(B)(i) opinion process. The AG has remand authority and can require the custodian to apply the law correctly.

FOIA attorneys

This opinion is useful for the disciplinary-vs-administrative classification framework. Cite Ark. Att'y Gen. Ops. 2023-117, 2023-111, 2023-081, 2023-077 for the rule that suspension letters are evaluation records when both elements are met (disciplinary nature + grounds). Cite Ops. 2023-096 and 2014-110 for the disciplinary-vs-administrative distinction itself.

The AG's decision to remand rather than rule on the letter directly is a procedural feature: the AG sees only what the custodian provides. When custodians do not provide the underlying record, the AG cannot make a definitive classification ruling. Counsel for parties on either side should ensure the AG receives the records.

Common questions

What is administrative leave vs. suspension?
Administrative leave (also called administrative suspension or paid leave) is a non-punitive removal from active duty during an investigation. The employee continues to receive pay and benefits while the employer investigates. No finding of wrongdoing has been made.

A disciplinary suspension follows a finding (or at least a tentative determination) that the employee committed misconduct. It may be paid or unpaid depending on the nature of the discipline.

What does "administratively final" mean?
The personnel action cannot be reversed or modified by any administrative process. If the teacher has filed a grievance or appeal that the school board is reviewing, the suspension is not yet final. Once the board rules and any internal-appeal window expires, finality attaches.

Can the requester force the custodian to release the letter?
Indirectly. The AG opinion process is non-binding but persuasive. If the AG finds the custodian's withholding inconsistent with FOIA and the custodian still does not release, the requester can file a FOIA action in circuit court under A.C.A. § 25-19-107.

What is the four-part test for evaluation records?
(1) Suspension or termination occurred; (2) action is administratively final; (3) records formed a basis for the action; (4) compelling public interest in disclosure exists. All four must be met.

Why is the public's interest "compelling" for teacher misconduct?
Because teachers are public employees in positions of trust over minors. AG Op. 2012-085 calls the public's interest "extremely high" for teacher-minor interactions. Op. 2024-038 (Russellville School District) applies the same analysis. Op. 2016-117 holds that the absence of a broader public controversy is of "minimal significance" when teacher-student conduct is involved.

What happens if the suspension is reversed?
The records may not become public. If the school board reinstates the teacher, the suspension was not administratively final in a way that meets the four-part test. The letter remains protected.

Background and statutory framework

A.C.A. § 25-19-105(b)(12). Personnel-records exception with Young balancing.

A.C.A. § 25-19-105(c). Four-part test for employee-evaluation records.

A.C.A. § 25-19-105(c)(3)(B)(i). AG opinion authority. Custodian, requester, or subject of certain employment records may seek an opinion.

Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Two-step balancing test for personnel-record privacy invasions, with the scale tipped toward disclosure.

Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). Burden on the person resisting disclosure to show privacy outweighs public interest.

Disciplinary vs. administrative suspension. Ark. Att'y Gen. Ops. 2023-096 and 2014-110 set out the disciplinary-vs-administrative classification framework.

Suspension letters as evaluation records. Ark. Att'y Gen. Ops. 2023-117, 2023-111, 2023-081, 2023-077 establish that disciplinary suspension letters with grounds become evaluation records.

Compelling-interest standard for teachers. Op. 2012-085 (extremely high public interest in teacher-minor interactions); Op. 2016-117 (absence of public controversy of minimal significance); Op. 2024-038 (Russellville analysis).

Citations

• A.C.A. § 25-19-105(b)(12)
• A.C.A. § 25-19-105(c)
• A.C.A. § 25-19-105(c)(3)(B)(i)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Ark. Att'y Gen. Ops. 2023-117, 2023-111, 2023-081, 2023-077, 2023-096, 2014-110, 2023-058, 2014-119, 2016-055, 2001-112, 2001-022, 94-198

Source

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

Original opinion text

Opinion No. 2024-015
January 22, 2024
Mr. John T. Huett Sr. Mr. Cody Kees
Via email only: [email protected] Via email only: [email protected]
Dear Mr. Huett and Mr. Kees:

You have each requested my opinion regarding the disclosure of employment-related records under the Arkansas Freedom of Information Act ("FOIA"). Mr. Huett's request is made as the requester of the underlying records, and Mr. Kees's request is made as the attorney for the custodian. The FOIA, specifically A.C.A. § 25-19-105(c)(3)(B)(i), authorizes me to issue an opinion stating whether the custodian's decision regarding the release of employment-related records is consistent with the FOIA.

Mr. Huett submitted a FOIA request to the records custodian for England High School, requesting "'Letters, Memorandums, Emails, Text messages or other forms of Notification' to a Teacher and staff informing the teacher of suspension or termination." The custodian provided some records but withheld a letter of suspension because "'there has been no final administrative resolution by the school board as to [the teacher's] employment status.'" You both ask whether the custodian's decision is consistent with the FOIA. (Mr. Huett also poses several questions. My statutory duty is to state whether the custodian's decision is consistent with the FOIA, and I am not authorized to venture outside that review.)

RESPONSE
In my opinion, the propriety of the custodian's decision depends on whether the suspension was disciplinary or purely administrative. If it was purely administrative, then the letter is classified as a personnel record, and the custodian must apply that test for disclosure. But if the letter reflects a disciplinary suspension, then it cannot be disclosed at this point because, according to the custodian, the suspension is not administratively final.

DISCUSSION
The key threshold question to assess the custodian's decision is whether the letter of suspension is best considered a personnel record or an employee-evaluation record. This office has long concluded that a letter of suspension is generally considered a personnel record. But that general rule does not apply when the letter of suspension (1) reflects a disciplinary, as opposed to an administrative, suspension and (2) contains the grounds for the suspension. When both those elements are met, the letter is considered an employee-evaluation record.

1. Administrative vs. disciplinary. 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 policy of the employer 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 an officer-involved shooting. During 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 employer believes the employee's conduct fell below expectations.

Sometimes the face of the record itself makes clear that the suspension is purely administrative or disciplinary. But sometimes, as is the case with the letter at issue here, it is unclear whether the suspension was purely administrative. When the letter itself is not entirely clear, it is up to the custodian to determine, based on all the surrounding facts available to the custodian, whether the suspension is purely administrative. If so, then the record is classified as a personnel record, and the custodian must disclose the letter unless doing so constitutes a clearly unwarranted invasion of the employee's personal privacy. The application of this test to the letter at issue here is discussed below.

But if the suspension is not purely administrative, then the custodian must move to the next step to assess whether it contains the grounds for the suspension. If so, as the letter at issue here does, then the letter is classified as an employee-evaluation record and cannot be released unless (1) the suspension is administratively final and (2) the public has a compelling interest in the letter's disclosure. (A.C.A. § 25-19-105(c) creates a four-part test for the disclosure of employee-evaluations. The text accompanying this footnote only addresses two of those elements because, under the scenario discussed above, the other two would always be met.) Here, the custodian has indicated that the suspension is not yet administratively final. Therefore, if the record is best classified as an employee evaluation, it cannot be disclosed at this point.

2. Personnel-records balancing test. As noted above, if the custodian considers the letter of suspension to reflect a purely administrative suspension, then the letter is classified as a personnel record and its disclosure is governed by A.C.A. § 25-19-105(b)(12). That statute requires the letter to be disclosed unless doing so constitutes a clearly unwarranted invasion of the employee's 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 in which he or she must determine whether the privacy interest is outweighed by the public's interest in disclosure.

Because FOIA 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.

If the custodian determines that the letter is a personnel record, the custodian should apply the foregoing two-part test to determine whether the grounds for suspension should be redacted before the letter's release. Since the custodian has not yet made any decisions regarding this part of the analysis, there is no custodial decision for me to review. Therefore, at this stage, I must return the matter to the custodian to apply the rules explained in this opinion.

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

Sincerely,
TIM GRIFFIN
Attorney General