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

Plain-English summary

John Huett requested records from the England High School custodian, including notifications to a teacher and staff about a teacher’s suspension or termination. The custodian withheld a suspension letter because there had been no final administrative resolution by the school board about the teacher’s employment status. Cody Kees, the custodian’s attorney, also requested the AG’s opinion.

The AG says the answer depends on whether the suspension was disciplinary or purely administrative. A purely administrative suspension makes the letter a personnel record. A disciplinary suspension makes it an employee evaluation record when the letter also contains the grounds for the suspension.

For an employee evaluation record, the opinion says the letter cannot be released at this point if the suspension is not administratively final. For a personnel record, the custodian must apply the privacy test under A.C.A. § 25-19-105(b)(12). The AG returned the matter to the custodian because the custodian had not yet made the decisions needed for that analysis.

What this means for you

School district records custodians

Classify the suspension as disciplinary or purely administrative. If the letter is unclear, the opinion says the custodian must use all surrounding facts available to determine whether the suspension is purely administrative.

If the suspension is purely administrative, treat the letter as a personnel record and disclose it unless disclosure would be a clearly unwarranted invasion of personal privacy. If the suspension is disciplinary and the letter contains the grounds for it, treat the letter as an employee evaluation record. The opinion says that record cannot be released unless the suspension is administratively final and the public has a compelling interest in disclosure.

FOIA requesters

The request should identify the employment related records sought. The opinion confirms that the AG’s review under A.C.A. § 25-19-105(c)(3)(B)(i) addresses whether the custodian’s decision is consistent with the FOIA. The opinion does not resolve questions outside that review.

School employees

The classification of a suspension letter controls which FOIA test applies. A purely administrative suspension is analyzed as a personnel record. A disciplinary suspension letter that contains the grounds for suspension is analyzed as an employee evaluation record.

Common questions

What is the difference between an administrative and a disciplinary suspension? The opinion describes a non-disciplinary suspension as one resulting from a routine employer policy initiated without regard to the propriety of the employee’s conduct. A disciplinary suspension is initiated because the employer believes the employee’s conduct fell below expectations.

Can a disciplinary suspension letter be released before final action? The opinion says no when the letter contains the grounds for the disciplinary suspension and the suspension is not administratively final. It also says the public must have a compelling interest in disclosure.

What if the letter is a purely administrative suspension?
The letter is a personnel record. The custodian must disclose it unless disclosure would constitute a clearly unwarranted invasion of the employee’s personal privacy.

What did the AG decide about this particular letter?
The AG returned the matter to the custodian. The custodian had not yet decided whether grounds for suspension should be redacted under the personnel record analysis, so there was no custodial decision on that issue for the AG to review.

Background and statutory framework

The opinion identifies A.C.A. § 25-19-105(c)(3)(B)(i) as authorizing the AG to state whether a custodian’s decision about releasing employment related records is consistent with the FOIA. It applies A.C.A. § 25-19-105(b)(12) to the personnel record analysis and A.C.A. § 25-19-105(c) to the employee evaluation record analysis.

For the personnel record analysis, the opinion discusses Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), and Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). It explains that the Young test weighs the public interest in access against the individual’s privacy interest, with the scale tipped toward disclosure, and that the person resisting disclosure bears the burden of showing that privacy interests outweigh the public’s interests.

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)

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. 1

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. 2 But that general 1 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. Ark. Att’y Gen. Ops. 2023-058, 2014-119. 2 See, e.g., Ark. Att’y Gen. Ops. 2023-117, 2023-111, 2023-081, 2023-077 (and opinions cited therein).

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. 3 When both those elements are met, the letter is considered an employee-evaluation record. 4

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”). 5 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. 6 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

3
See Ark. Att’y Gen. Op. 2023-111.
4
See, e.g., Ark. Att’y Gen. Ops. 2023-117, 2023-111, 2023-081, 2023-077.
5
See, e.g., Ark. Att’y Gen. Ops. 2023-096, 2014-110.
6
See A.C.A. § 25-19-105(c). That statute creates a four-part test for the disclosure of employee-evaluations. The text accompanying this footnote only addressees two of those elements because, under the scenario discussed above, the other two would always be met.

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. 7 The balancing test, which takes place with the scale already tipped in favor of disclosure, 8 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. 9 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. 10 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. 11 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. 12

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

7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 208 (Arkansas Law Press, 6th ed., 2017).
9
Young, 308 Ark. at 598, 826 S.W.2d at 255.
10
Id., 826 S.W.2d at 255.
11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., supra, at 207.