Can a school district release records about a teacher and assistant principal terminated after a complaint of inappropriate communication with a student, including interview notes, text messages, and the parent's complaint letter?
Plain-English summary
A former Russellville School District employee, who served as both a teacher and assistant principal, was terminated on February 21, 2024 after an investigation into alleged inappropriate communication with a student. The next day, the district received a FOIA request for records related to the termination and a separate complaint about inappropriate communication. The district decided to release a set of records (with the student's name redacted): communications between the employee and the student, interview notes, text messages, ADE's code of ethics for educators, RSD policies, mandated reporter documentation, and communications with the student's parents.
The employee's attorney challenged release of several records, arguing the employee had a substantial privacy interest, no strong public interest, and the student's privacy rights were implicated. The AG reviewed the categories the attorney provided.
Interview and investigatory notes (provided to AG). Created by the school in the course of investigating misconduct. Properly classified as employee-evaluation records. Four-part test: (1) employee was terminated, (2) termination is administratively final, (3) notes formed a basis for termination, (4) compelling public interest in disclosure. The fourth prong is satisfied because (a) the assistant principal position is one of significant authority and public trust, and (b) the conduct involved a teacher-student interaction (a recurring area of compelling interest in Arkansas FOIA opinions). The AG noted that the employee's argument that "no claim of abuse, neglect, or other violation of law" was implicated does not defeat compelling interest where teacher-student misconduct in a position of trust is involved.
Termination letter. Same analysis as interview notes. Releasable.
Text messages between employee and student (provided to AG). Personnel records (created by the employee, not by the employer to evaluate). The Young v. Rice balancing test applies. The public's interest in teacher-student interactions involving minors is "extremely high" (Op. 2012-085), and the thumb on the scale for disclosure tips the balance toward release.
Mother's complaint letter (provided to AG). Personnel record (mother submitted voluntarily, not solicited by the school). Same balancing analysis: public interest outweighs employee's privacy interest. Student's privacy is a separate concern outside the AG's review authority.
Other records (not provided). The AG could not opine on the employee's communications with the student (other than text messages), the mandated reporter documentation, or communications with the student's father. The custodian must classify and apply the appropriate test.
The AG noted the analysis does not address the student's privacy rights, which are separately governed by FERPA (A.C.A. § 25-19-105(b)(2)) and outside the AG's review authority.
What this means for you
School district records custodians
Two big takeaways:
First, the position-of-trust analysis is robust. Teachers and assistant principals are positions of public trust in Arkansas FOIA jurisprudence. When their misconduct involves student safety, even without a criminal allegation, the compelling-interest prong is typically met. AG Opinions 2024-021, 2023-120, 2019-042, 2013-104, 2007-061, and 2005-236 are all consistent.
Second, voluntary submissions from third parties (like a parent's letter) are personnel records, not evaluation records. The "at the behest of" criterion for evaluation records requires solicitation. A parent who voluntarily writes the school documenting concerns is not creating an evaluation record under FOIA. The records are personnel records subject to Young balancing.
When releasing records about a teacher-student interaction, redact the student's name and other PII the FERPA exception (under § 25-19-105(b)(2)) covers. The AG cannot opine on FERPA decisions.
Parents and student privacy
When a school district releases records about your child's interaction with a school employee, expect that your child's identity will be redacted, but the underlying communications, interview notes, and your own letters may be released. If you submitted documentation voluntarily to the school, that documentation is generally a public record subject to FOIA, with name redactions for the student.
If you have specific FERPA concerns about how a release would identify your child even after redaction, raise those with the district before release. Some redactions go beyond name to include contextual identifiers.
Teachers and school employees
If you are facing termination over a teacher-student interaction allegation, the records of that proceeding are likely to become public once your termination is administratively final. The compelling-interest prong is satisfied for assistant principal-level positions and for teacher-student misconduct generally. Plan accordingly. Talk to a lawyer.
FOIA requesters and journalists
For records about teacher-student interactions, the path to disclosure is well-marked. Termination letters, interview notes, internal affairs investigation files all become releasable once the termination is administratively final, the position involves public trust (any teacher), and the alleged conduct involves a student. Even without a criminal allegation, the analysis works.
For communications between employee and student (text messages, emails), the analysis runs through personnel-record balancing. The public's interest in teacher-student interactions is high, and the thumb-on-scale-for-disclosure rule typically tips it toward release.
Common questions
Why don't student privacy concerns block disclosure here?
The AG's review authority is limited to (b)(12) and (c)(1) decisions. Student privacy under FERPA falls under (b)(2) and is reviewable only in court. The custodian still has to redact student-identifying information (which is what RSD did here), but whether redactions are sufficient under FERPA is a question for litigation, not AG opinion.
Is a parent's voluntary letter to the school a public record?
Yes. A.C.A. § 25-19-103(7)(A) defines public records broadly, and records of communications between a school and a parent regarding a school employee's conduct are records of school district operations. Pulaski Cty. v. Ark. Democrat-Gazette (2007) sets the rebuttable-presumption framework. This letter qualifies.
What if the employee resigned instead of being terminated?
Arkansas's constructive-termination doctrine reaches resignation in the face of "certain, impending termination" (AG Op. 2024-045 has the framework). If the employee resigned rather than face certain termination, the four-part test still applies and the records may be releasable.
Why is teacher-student interaction such a powerful compelling-interest factor?
Because teachers hold positions of trust over minors. Arkansas FOIA opinions consistently treat teacher-student interactions as a public concern, even when the underlying conduct does not rise to criminal abuse. Op. 2016-117 holds that the absence of a public controversy may be of "minimal significance" when a teacher's conduct directly affected a student. Op. 2012-085 holds the public's interest is "extremely high" in teacher-minor interactions.
What about the mandated reporter documentation?
The AG didn't see those records. Mandated reporter documentation typically reports suspected child abuse or neglect to authorities (Department of Human Services, law enforcement). These records may be subject to additional protections under child welfare laws, separate from FOIA. The custodian must classify and apply the correct test.
Background and statutory framework
FOIA exceptions for personnel and evaluation records. § 25-19-105(b)(12) (personnel records, Young balancing); § 25-19-105(c)(1) (employee evaluations, four-part test).
AG opinion authority. § 25-19-105(c)(3)(B), (c)(3)(B)(i): authorizes opinions on personnel and employee-evaluation record decisions.
Personnel records framework. Young v. Rice, 308 Ark. 593 (1992): two-step balancing test with thumb on scale for disclosure. Stilley v. McBride, 332 Ark. 306 (1998): burden on person resisting disclosure.
Employee-evaluation records framework. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: three-element definition. Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466: applies the test.
Position-of-trust factor. AG Opinions 2024-021, 2024-038, 2023-120 (assistant principals as positions of significant authority); 2019-042, 2013-104, 2007-061, 2005-236 (teachers and other public school employees).
Teacher-minor interaction factor. AG Op. 2016-117 (absence of broader public controversy of "minimal significance" when teacher-student conduct involved); AG Op. 2012-085 (public interest in teacher-minor interactions "extremely high").
Citations
- A.C.A. § 25-19-105(b)(12) (personnel privacy)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation four-part test)
- A.C.A. § 25-19-105(c)(3)(B), (c)(3)(B)(i) (AG review authority)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466
- AG Opinions 2024-021, 2023-120, 2019-042, 2013-104, 2007-061, 2005-236, 2016-117, 2012-085
Source
Original opinion text
Opinion No. 2024-038
February 28, 2024
John Peel
120 South Glenwood Avenue
Post Office Box 986
Russellville, Arkansas 72811
Dear Mr. Peel:
You have requested my opinion regarding the Arkansas Freedom of Information Act
(“FOIA”). Your request, which is made as the attorney for the subject of the requested
records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision 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 your client, a former employee of the Russellville School District, was
terminated on February 21, 2024, and the Russellville School District received a FOIA
request for his records on February 22, 2024. Specifically, the request seeks:
• Emails, texts, screen shots, and reports pertaining to [your client] that relate to his
termination and/or leading up to his termination on February 21, 2024; and
• Any/all releasable information, including but not limited to emails, texts, screen
shots, and reports pertaining to the complaint/incident reported on or around
Monday, January 29, 2024, regarding inappropriate communication involving
[your client] and/or a student.
The school district intends to release the following records in response to this request and
to redact the student’s name from the documents:
• Employee communications with the student;
• Interview notes;
• Text messages;
• The Arkansas Department of Education’s code of ethics for Arkansas educators;
• Copies of certain Russellville School District policies;
• Mandated reported documentation;
TIM GRIFFIN
ATTORNEY GENERAL
323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201 John Peel
Opinion No. 2024-038
Page 2
• Communication with the student’s father; and
• Communication with the student’s mother.
You have not seen the records that constitute the employee’s communications with the
student, the mandated reporter documentation, or communication with the student’s father,
but you object to their release. You also object to the release of the interview notes, text
messages, and communication with the student’s mother. You have provided copies of the
latter records for my review. You contend that your client has a substantial privacy interest
in keeping the records private, that there is no strong public interest in the disclosure of the
records, and that releasing the records would violate the privacy rights of the student and
her family. You ask whether the Russellville School District’s decision to release the
records is consistent with the FOIA.
RESPONSE
My duty under A.C.A. § 25-19-105(c)(3)(B) is to state whether the custodian’s decision as
to the release of “personnel or evaluation records” is consistent with the FOIA. I have not
been given any specific statutory authority to review the decision of a records custodian
outside the context of personnel or evaluation records. Therefore, to the extent that your
objections concern the privacy rights of private citizens, those objections will not be
addressed in this opinion. Similarly, I will not address whether any other exemption outside
of A.C.A. § 25-19-105(b)(12) or (c)(1) would require these records or information
contained within the records to be withheld from release. With this understanding, it is my
opinion that the custodian’s decision to release the interview notes, text messages, and
communication with the student’s mother is consistent with the FOIA. Because I have not
seen the employee’s communications with the student, the mandated reporter
documentation, or the communication with the student’s father, I cannot opine on the
release of those records.
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 the record be
disclosed.
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.” John Peel
Opinion No. 2024-038
Page 3
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 were not created by or at the behest of the employer to
evaluate the employee.3
A personnel record is open to public inspection 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
“a thumb on the scale” in favor of disclosure, has two steps.6 First, 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 de minimis privacy interest.7 If the
privacy interest is minimal, then the thumb on the scale in favor of disclosure tips the
balance to require disclosure. Second, if the information does give rise to a greater than de
minimis privacy interest, then the custodian must determine whether that interest is
outweighed by the public’s interest in disclosure.8
Because the 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.9 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.10
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
3 See, 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., at 208.
7 Young, 308 Ark. at 598, 826 S.W.2d at 255.
8 Id., 826 S.W.2d at 255.
9 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
10 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. John Peel
Opinion No. 2024-038
Page 4
employee’s performance or lack of performance on the job.11 This exception includes
records generated while investigating allegations of employee misconduct that detail
incidents that gave rise to an allegation of misconduct.12
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).13
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 within
the agency who commits a serious breach of public trust should be sufficient
to satisfy the “compelling public interest” requirement.14
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
11 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.
12 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
13 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
14 Watkins, et al., at 238–39. John Peel
Opinion No. 2024-038
Page 5
instance, by the custodian after he considers all the relevant information.15 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.16
3. Classification and disclosure of interview notes. You have provided four sets of
interview and investigatory notes for my review. These records were created by the school
in the course of investigating your client’s alleged misconduct. Because they were created
by or at the behest of an employer to evaluate an employee’s performance, they are properly
classified as employee-evaluation records.
Employee-evaluation records cannot be released unless the above four-part test for release
is met. Your client has been terminated, and it is my understanding that the termination is
administratively final. The investigatory and interview notes also formed a basis for his
termination.
The inquiry, therefore, turns on the compelling-interest element of the test. The existence
of a “compelling public interest” in disclosure necessarily depends on all the surrounding
facts and circumstances. I am not equipped or authorized to undertake such a factual
inquiry, but I will note that the issue here involves actions between a student and your
client, who was employed as both a teacher and the assistant principal in a public school.
This office has consistently opined that the activities of teachers and other public school
employees are of particular importance, especially when students are directly affected.17
You argue that because “there is no claim of abuse, neglect, or other violation of law [and]
no misuse of public funds, gross incompetence, or other act save only a claimed violation
of RSD policy,” there is no compelling public interest in the records’ disclosure. But this
office has held that the absence of such a public controversy may be of minimal
significance in a case involving a teacher who is in a position of trust and whose conduct
directly affected a student.18 Furthermore, your client’s position as the assistant principal
placed him in a position of significant authority, which adds weight to the argument that
there is a “compelling public interest” in disclosure. Therefore, the custodian’s decision to
disclose these interview and investigatory notes appears to be consistent with the FOIA.19
15 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.”).
16 E.g., Ark. Att’y Gen. Op. 96-168.
17 See, e.g., Ark. Att’y Gen. Ops. 2019-042, 2013-104, 2007-061, 2005-236.
18 See, e.g., Ark. Att’y Gen. Op. 2016-117.
19 You have also included a copy of your client’s termination letter among the records you have forwarded
for my review. Your correspondence does not assert that the school intends to release the termination letter
or that you object to its release. But given its inclusion, I will note that this office has consistently opined that
termination letters are employee-evaluation records when they include the reasons for termination. Because
the letter includes the reasons for your client’s termination, it is an employee-evaluation releasable under the
same four-part test applied to the interview notes. John Peel
Opinion No. 2024-038
Page 6
4. Classification and disclosure of text messages. You have also attached screenshots of
text messages between your client and the student. These records pertain to your client, but
they were not created by or at the behest of the school district to evaluate him. Therefore,
they are properly classified as personnel records.
A personnel record must be released when the public’s interest in the record outweighs the
employee’s privacy interest in the document. This office has previously opined that the
public’s interest in a document is extremely high when it involves a teacher’s interactions
with a minor student.20 Even if your client has a privacy interest that equals that of the
public’s high privacy interest, the “thumb on the scale favoring disclosure” tips the balance
in favor of the records’ release. Accordingly, it is my opinion that the custodian’s decision
to release the text messages is not inconsistent with the FOIA. As noted above, I lack
authority to address your arguments about the privacy interests that may apply to the
student.
5. Classification and disclosure of the communication with student’s mother. My
understanding is that the school district did not prompt the student’s mother to submit the
attached letter but that she provided it voluntarily. Because it was not solicited, it was not
created “at the behest” of the school district and is, therefore, not an evaluation letter.
Accordingly, it is best classified as a personnel letter.
Applying the same balancing test as that applied to the text messages above, the employee’s
privacy interest in the letter does not appear to outweigh the public’s interest in the letter
when the there is a “thumb on the scale favoring disclosure.” And while the student has a
strong privacy interest in the information contained in the letter, this interest falls outside
the scope of my review. Therefore, to the degree I am authorized to review the custodian’s
decision to release the mother’s letter, that decision appears consistent with the FOIA.
6. Classification and disclosure of other records. As mentioned above, I have not been
provided with copies of the mandated reporter documentation, records of communication
with the student’s father, or other records of the employee’s communication with the
student (aside from the text messages). Therefore, I cannot opine on whether the release of
these records is consistent with the FOIA. I can only state that the custodian must properly
classify the records, apply the appropriate tests for release, and make redactions if the law
requires.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I
hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
20 See, e.g., Ark. Att’y Gen. Op. 2012-085.