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

Russellville School District planned to release records connected to an investigation of a former employee who had served as both a teacher and assistant principal. The request concerned alleged inappropriate communication with a student. The employee, through counsel, challenged release. The Attorney General reviewed the records supplied to him and applied different Arkansas FOIA tests depending on whether each record was an employee-evaluation record or a personnel record.

For interview and investigatory notes, the opinion addresses the four conditions for releasing evaluation records, including a compelling public interest. It says that interest depends on all surrounding facts. Here the alleged interaction directly affected a student and the employee also held the assistant-principal position. On those facts, the Attorney General said release of the notes “appears to be consistent” with FOIA. He did not make a general rule that all teacher misconduct records meet the compelling-interest condition.

The opinion also discusses text messages and a letter the student's mother voluntarily sent to the school. It treats the mother's letter as a personnel record because it was not solicited for an employee evaluation and says the planned release appeared consistent with FOIA. Student privacy questions were outside the Attorney General's review authority. He did not have every category of requested record before him and did not decide a universal rule for their disclosure.

What this means for you

School records custodians

Classify each document and apply its own release test. The compelling-interest decision for evaluation records is fact-specific; the opinion identifies the student's direct involvement and the employee's assistant-principal authority as relevant here. Do not treat administrative finality alone as permission to release all investigation materials. Student privacy also calls for a separate review.

Parents and employees

The Attorney General considered a voluntarily submitted parent letter under the personnel-record test, while interview notes created for the school's investigation received the evaluation-record test. The result depended on what the Attorney General actually reviewed and the reported circumstances, including the role held by the employee.

Common questions

Did the Attorney General say any teacher's investigation file is releasable after termination?

No. The opinion says compelling public interest depends on the facts and uses tentative language about these notes. It does not decide disclosure of every file for every teacher.

Did the opinion address resignation instead of termination?

No. It discusses the termination reported in this case. It does not analyze constructive termination or a different employee's resignation.

Did it decide whether a student's identity could be released?

No. The Attorney General said student-privacy questions fall outside his review authority in this FOIA opinion.

Was the termination letter part of the review?

A footnote says the attorney sent it, but did not assert that the district intended to release it. The opinion classifies the letter and says it would be releasable under the described evaluation-record test; the focus of the release decision was the records the custodian planned to disclose.

Currency note

This February 28, 2024 opinion applies FOIA to the records and facts presented. Review each current record and applicable law separately before releasing it.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

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;

323 CENTER STREET, SU ITE 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.