Can an Arkansas school district redact employees' names associated with disputes in records released under FOIA?

Plain-English summary

Jimmie Cavin asked the Vilonia School District for settlement agreements and invoices from its law firm for 2021 through 2023. The district produced redacted records, citing several Arkansas FOIA exceptions. The Attorney General reviewed the supplied records and found the district's redactions inconsistent with the personnel-record and employee-evaluation exceptions it invoked.

The redacted entries appeared to be part of the law firm's classification system. Comparable unredacted entries gave a person's name and a type of dispute. The Attorney General said those entries did not evaluate an employee or describe job performance, so they were not employee-evaluation records. He treated them as personnel information but found that a name associated with a dispute type was not personal or intimate enough to create more than a minimal privacy interest. Because the interest was only minimal, he said there was no need to weigh it against the public's interest in disclosure.

The opinion separately says redactions of public employees' personal contact information are consistent with FOIA. The Attorney General declined to assess redactions under the education-record provision, A.C.A. § 25-19-105(b)(2), because his review authority for this request did not extend to that category.

What this means for you

School district records custodians

Identify what each withheld entry actually says before choosing an exception. The entries reviewed here identified people and dispute types without evaluating their work. The Attorney General rejected the district's personnel and evaluation grounds for hiding those names, but recognized that personal contact information can be withheld. His opinion does not resolve the education-record redactions.

Records requesters

If a district withholds names associated with dispute entries under these two employee-record exceptions, this opinion explains why those entries were released in this case. It also shows a limit of Attorney General review: he did not decide whether the district's separate education-record redactions were justified.

Common questions

Was the name-and-dispute entry an employee evaluation?

No. The opinion says the entries did not evaluate an employee or detail job performance, even though they were made at the district's behest as part of legal representation.

Did the Attorney General balance privacy against public interest for those names?

No. He found only a minimal privacy interest in the person's name and associated dispute type, so he said the second balancing step was unnecessary.

Did he require release of employees' personal contact information?

No. He said withholding public employees' personal contact information was consistent with FOIA under the cited personnel and contact-information provisions.

Did he decide whether student information was properly redacted?

No. He declined to assess redactions based on the education-record exception, A.C.A. § 25-19-105(b)(2).

Currency note

The opinion was issued February 8, 2024 and addresses the redacted records supplied for this request. Check current FOIA law and the contents of a particular record before applying its conclusion elsewhere.

Source

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

Original opinion text

Opinion No. 2024-027

February 8, 2024

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 the 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 report that you sent a FOIA request to the Vilonia School District seeking copies of (1) all settlement agreements for 2021, 2022, and 2023 and (2) all invoices from Bequette, Billingsley, and Kees, P.A., for 2021, 2022, and 2023. You report that the records custodian provided you with the records but redacted some information. You then requested the specific exemptions claimed for the redactions, and the custodian stated the redactions were made pursuant to A.C.A.
§ 25-19-105(b)(2), (b)(12), (b)(13), and (c)(1). You provided the records with redactions for my review, and you ask whether the custodian’s decisions regarding the redactions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian’s redactions are inconsistent with A.C.A. § 25-19-105(b)(12) and (c)(1) of the FOIA. I must respectfully decline to opine regarding the redactions based on A.C.A.
§ 25-19-105(b)(2), as my authority to issue opinions is restricted to those related to “personnel” and employee “evaluation or job performance records.” The category of records exempted under
§ 25-19-105(b)(13) is essentially a more specific type of records that would already be exempted under § 25-19-105(b)(12).

Mr. Jimmie Cavin
Opinion No. 2024-027
Page 2

DISCUSSION
All information relating to individual employees, former employees, or successful job applicants are either “personnel records” 1 or “employee evaluation or job performance records.” 2 The test for release of these two types of records differs significantly. When custodians assess whether either of these exceptions applies to a particular record, they must first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

1. Personnel records. While the FOIA does not define the term “personnel records,” this office
   has consistently opined that “personnel records” are all records that pertain to an individual employee and that are not employee-evaluation records. 3 Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

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.” 4

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. 5 The balancing test, which takes place with the scale already tipped in favor of disclosure, 6 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. 7 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

1
A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter….[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 2 A.C.A. § 25-19-105(c)(1): “[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” 3 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 202 (Arkansas Law Press, 6th ed., 2017). 4 A.C.A. § 25-19-105(b)(12).
5
308 Ark. 593, 826 S.W.2d 252 (1992).
6
Watkins et al. supra, at 208.
7
Young, 308 Ark. at 598, 826 S.W.2d at 255.

Mr. Jimmie Cavin
Opinion No. 2024-027
Page 3

moves to the second step when he or she must determine whether the privacy interest is outweighed by the public’s interest in disclosure. 8

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. 9 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 10 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., relevance); and
   4. The public has a compelling interest in the disclosure of the records in question (i.e.,
   compelling interest). 11
   As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But the leading commentators on the FOIA, referring to this office’s opinions, have offered the following guidelines:
   [I]t seems that the following factors should be considered in determining whether
   a compelling public interest is present: (1) the nature of the infraction that led to
   suspension or termination, with particular concern as to whether violations of the
   public trust or gross incompetence are involved; (2) the existence of a public
   controversy related to the agency and its employees; and (3) the employee's position
   within the agency. In short, a general interest in the performance of public
   employees should not be considered compelling, for that concern is, at least
   theoretically, always present. However, a link between a given public controversy,
   an agency associated with the controversy in a specific way, and an employee

8
Id., 826 S.W.2d at 255.
9
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. 10 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
11
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

Mr. Jimmie Cavin
Opinion No. 2024-027
Page 4

within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement. 12 These commentators also note that “the status of the employee” or “his rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. 13 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. 14

3. Application. The information redacted from these records are personnel records because the
   information pertains to individual employees and is not their employment evaluation. The redacted entries appear to be part of the law firm’s classification system. The unredacted entries include a person’s name and the type of dispute involved. Even though the entries were made at the behest of the school district as part of its legal representation, the entries do not evaluate an employee or detail the employee’s performance or lack of performance on the job.

Since the redacted information qualifies as a personnel record, the information must be disclosed unless doing so constitutes a clearly unwarranted invasion of the employees’ personal privacy. A person’s name and the type of dispute to which that person’s name is associated are not information that is of a personal or intimate nature that gives rise to a greater than minimal privacy interest. Because there is only minimal privacy interest involved, there is no need to determine if the person’s privacy interest is outweighed by the public’s interest in disclosure.

4. Summary. Therefore, the custodian’s decision to rely on § 25-19-105(b)(12) and (c)(1) to redact
   the names of people associated the disputes is not consistent with the FOIA. Any decisions that redact public employees’ personal contact information is consistent with the FOIA under both
   § 25-19-105(b)(12) and (b)(13). I am not authorized to assess the decision of a records custodian to the extent it employs § 25-19-105(b)(2).

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

Sincerely,

TIM GRIFFIN
Attorney General

12
Watkins et al., supra, at 238–39.
13
Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue.”). 14 E.g., Ark. Att’y Gen. Op. 96-168.