Can a school district in Arkansas redact people's names from settlement agreements and law-firm invoices under the FOIA's personnel-record or employee-evaluation exceptions?
Plain-English summary
Jimmie Cavin filed an Arkansas FOIA request with the Vilonia School District for two categories of records: (1) all settlement agreements for 2021 through 2023 and (2) all invoices from the district's law firm (Bequette, Billingsley, and Kees, P.A.) for the same years. The district produced the records but redacted some information, citing four FOIA exceptions: § 25-19-105(b)(2) (educational records under FERPA), (b)(12) (personnel privacy), (b)(13) (personal contact information), and (c)(1) (employee evaluations).
The AG's analysis:
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The redactions cannot stand under § 25-19-105(b)(12) and (c)(1). The redacted information was a person's name and the type of dispute they were involved in. That information is not an "employee evaluation" because it does not evaluate the employee's performance. So § 25-19-105(c)(1) does not apply. Treating the information as a personnel record under § 25-19-105(b)(12), the Young v. Rice (1992) balancing test requires release unless disclosure is a clearly unwarranted invasion of privacy. A name plus a dispute type does not give rise to a greater-than-minimal privacy interest, so the thumb-on-scale-for-disclosure rule applies. Names must be released.
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The AG cannot opine on the § 25-19-105(b)(2) redaction because the AG's review authority under § 25-19-105(c)(3)(B)(i) is limited to (b)(12) and (c)(1).
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§ 25-19-105(b)(13) (personal contact information of public employees) is properly applied. It is essentially a more specific subset of (b)(12). Personal contact info has heightened privacy interest and is properly withheld.
So the custodian's redactions of names from settlement agreements and law-firm invoices are wrong. The district must release the names.
What this means for you
School district records custodians
You cannot use the personnel-record exception or the employee-evaluation exception to redact people's names from settlement agreements and litigation-related law-firm invoices, just because the names belong to people involved in the underlying dispute. The redaction analysis works as follows:
For employee-evaluation records (§ 25-19-105(c)(1)): does the record evaluate an employee's performance or document a basis for discipline? If no, this exception does not apply.
For personnel records (§ 25-19-105(b)(12)): does the redacted info raise a greater-than-minimal privacy interest? Names alone, in context of a public agency action, do not. Dispute types in a settlement agreement or invoice line item are even less private. Personal contact info, SSN, date of birth, marital status, dependents are different (greater-than-minimal privacy interest, often properly redacted).
Settlement agreements with a public agency are public records. They document how taxpayer money is being spent. The names of the parties paid by public funds are part of that documentation.
FOIA requesters and watchdog groups
If you receive heavily redacted settlement agreements or law-firm invoices and the agency cites § 25-19-105(b)(12) or (c)(1), this opinion gives you direct ammunition. Names and dispute types do not qualify for either exception. Cite this opinion to the custodian. If they continue redacting, file an AG opinion request under § 25-19-105(c)(3)(B)(i).
For the (b)(2) educational-records redaction, the AG cannot help you. You would need to litigate, and the analysis turns on whether the redacted information qualifies as "education records" under FERPA (20 U.S.C. § 1232g). If the redacted name belongs to a current or former student, FERPA may apply. If the name belongs to an adult employee or an outside party, FERPA likely does not.
Investigative journalists
Settlement agreements and law-firm invoices are some of the most fertile sources for school district accountability stories. This opinion reinforces that names must be in the released documents, not hidden behind broad assertions of personnel privacy. If a district's pattern is to settle complaints quietly under blanket redactions, this is a wedge.
School district attorneys
Counsel needs to advise the district that names of parties in settlement agreements and dispute types in invoice line items are presumptively releasable under FOIA. The defensible redactions are tightly bounded: SSN, date of birth, marital status, dependent info, personal contact info, and (potentially) student names where FERPA is properly invoked. A blanket name redaction across all settlement records is not consistent with FOIA.
Common questions
What's the difference between (b)(12) personnel privacy and (b)(13) personal contact information?
(b)(12) is the broad personnel-privacy exception with the Young v. Rice balancing test. (b)(13) is a specific carve-out for personal contact info (home address, personal phone, personal email). The AG noted (b)(13) is "essentially a more specific type of records that would already be exempted under (b)(12)" but it stands as its own exception so custodians can withhold without doing a Young balancing analysis for each piece of contact info.
Why does the AG say the names aren't an "employee evaluation"?
Because § 25-19-105(c)(1) covers 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" (Thomas v. Hall, 2012 Ark. 66). A settlement agreement names a party but does not evaluate that party's job performance. A law-firm invoice with a line item like "Smith dispute" identifies a matter but does not evaluate Smith's performance.
Can the school district redact a teacher's name from a sexual harassment settlement?
Generally no, because the settlement is a public document showing how public funds are spent. The teacher's privacy interest in not having their name on a public document is real, but limited (the underlying conduct, settlement, and parties are matters of public concern). Under Young v. Rice, the public's interest in the conduct of school district employees and in the use of taxpayer funds typically outweighs the privacy interest in the name.
What about the student's name?
Different analysis. Student names in settlement agreements may fall under FERPA (the federal Family Educational Rights and Privacy Act), which Arkansas incorporates through § 25-19-105(b)(2). The AG cannot opine on (b)(2) decisions. Districts should consult counsel on FERPA's reach in settlement contexts, since FERPA's "education records" definition is contested.
What's the basis for the AG's review authority limit?
A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the AG to opine on personnel and employee-evaluation record decisions only. Other FOIA exceptions (like (b)(2) educational records, (b)(6) ongoing investigations, attorney-client privilege, etc.) are reviewable only in court.
Background and statutory framework
Two FOIA categories for employment records. § 25-19-105(b)(12) covers personnel records, released unless disclosure is a "clearly unwarranted invasion of personal privacy." § 25-19-105(c)(1) covers employee-evaluation records, released only on the four-part test (suspension/termination, finality, relevance, compelling interest).
Personal contact information. § 25-19-105(b)(13) specifically exempts "personal telephone numbers, personal email addresses, and home addresses" of public employees.
Educational records. § 25-19-105(b)(2) exempts "education records as defined in the Family Educational Rights and Privacy Act of 1974" (FERPA, 20 U.S.C. § 1232g).
Young v. Rice balancing test. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Arkansas Supreme Court): two-step test with thumb on the scale for disclosure. Step 1: greater-than-minimal privacy interest? Step 2 (if yes): does it outweigh public interest?
Employee-evaluation definition. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-element definition: (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance.
AG review authority. § 25-19-105(c)(3)(B)(i) limits AG review to personnel and employee-evaluation record decisions.
Citations
- A.C.A. § 25-19-105(b)(2) (educational records, FERPA)
- A.C.A. § 25-19-105(b)(12) (personnel privacy)
- A.C.A. § 25-19-105(b)(13) (personal contact info)
- A.C.A. § 25-19-105(c)(1) (employee evaluations)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG review authority)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
Source
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.