Can Arkansas release a fired forensic chemist's termination letters and personnel records, and what personal information must be redacted before disclosure?

Plain-English summary

A former Arkansas State Crime Lab forensic chemist asked the AG to review a custodian's plan to release records about her employment. The proposed release included two termination letters, her remaining personnel file, curriculum vitae, a list of court cases in which she and her work were subpoenaed, and the forensic chemist job description. The AG found the release and specified privacy redactions consistent with the Arkansas FOIA. He could not decide whether the separate education-records exception justified redacting her GPA.

The termination letters are employee-evaluation records. The AG applied four requirements for their release: the employee was suspended or terminated; the proceeding is administratively final; the records formed a basis for that decision; and the public has a compelling interest in their disclosure. The first three were satisfied here. On compelling interest, the AG pointed to the chemist's expert testimony in criminal prosecutions, the termination reasons involving quality standards and ethics rules, and potential consequences for cases in which she testified. He cautioned that compelling interest depends on all the surrounding facts and circumstances.

The other supplied records pertained to the employee but were not created to evaluate her, so the AG treated them as personnel records. Their release depends on a different test: whether disclosure would be a clearly unwarranted invasion of personal privacy. The AG approved release after redaction of personal contact information, Social Security number, date of birth, marital status, and dependent information. The custodian also redacted GPA under the education-records exception, but the AG's statutory review authority did not reach that exception. He said only that GPA in employer records was not exempt under the personnel-privacy provision.

What this means for you

Records custodians

Classify each requested record before applying a disclosure test. The AG treated these two termination letters as employee-evaluation records because they were created to evaluate performance and recounted reasons for termination. He treated the CV, case list, job description, and remaining file as personnel records because they were not created to evaluate performance. Apply all four requirements to an evaluation record, including a fact-specific compelling-interest inquiry. For personnel records, weigh a greater-than-minimal privacy interest against the public interest in release.

Employees and requesters

The AG upheld these particular redactions of personal information. He did not rule on whether the education-records exception permits the GPA redaction, because that question lies outside the review authority invoked here. His finding that employer-held GPA is not exempt under the personnel-privacy provision resolves only that provision.

People following criminal cases

The AG said that the chemist's expert testimony in criminal prosecutions and termination for failing quality standards and violating ethics rules helped establish public interest in these letters. The opinion says her testimony "could be challenged" and that the situation has "foreseeable and substantial ramifications" for people in those cases. It does not decide the outcome of any criminal case or impose a case-review process.

Common questions

Are termination letters automatically public once a firing is final? No. The employee must have been suspended or terminated, the decision must be administratively final, the letters must have formed a basis for it, and the public must have a compelling interest in disclosure. The AG found these conditions supported releasing the two letters supplied here.

Must the employee hold a public-trust position?
No. The AG described the employee's position as a factor in the compelling-interest inquiry, together with the nature of the infraction and any public controversy. He identified this forensic chemist's expert role in criminal prosecutions as an important fact in this case.

Why can the remaining records be released?
The AG classified them as personnel records. He found that, apart from the information already redacted, they did not contain private or intimate information. For personnel records, the FOIA bars disclosure only to the extent it would be a clearly unwarranted invasion of personal privacy.

Was the GPA redaction approved?
The AG could not decide whether the education-records exception, A.C.A. § 25-19-105(b)(2), applied. His authority in this review covered the personnel-privacy and employee-evaluation provisions. He did say disclosure of GPA in employer records was not a clearly unwarranted privacy invasion under the personnel-privacy provision.

Legal basis in the opinion

The opinion quotes the four requirements for employee-evaluation records, including "final administrative resolution," records that "form a basis" for the suspension or termination decision, and "a compelling public interest in their disclosure." It also quotes the personnel-records exemption: records are open except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The AG applies the balancing approach from Young v. Rice to the latter category.

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-043, March 5, 2024; official PDF, including footnotes)

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2024-043

March 5, 2024

Ms. Candice Foscue
Via email only: [email protected]

Dear Ms. Foscue:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject 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 someone has submitted a FOIA request for (1) records related to your hiring and dismissal from the Arkansas State Crime Lab, (2) the job description for any positions you held with the Department of Public Safety, and (3) subpoenas for you and your work during your tenure with the Arkansas State Crime Lab. The records custodian has informed you that she intends to release the following records:

• Two termination letters with personal-contact information redacted;
• The remainder of your personnel file 1 with personal-contact information, education records, social security number, date of birth, marital status, and information about dependents redacted;
• Your curriculum vitae;
• A list of court cases in which you and your work were subpoenaed; and • The job description for Forensic Chemist.
  You have provided me with a copy of the redacted records the custodian intends to release. You ask whether the custodian’s decision to release these records is consistent with the FOIA.

1
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g., Ark. Op. Att’y Gen. 97-368; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (Arkansas Law Press, 6th ed., 2017).

323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201
Ms. Candice Foscue
Opinion No. 2024-043
Page 2

RESPONSE

In my opinion, the custodian’s decision to release these records is consistent with the FOIA. The custodian’s decision to redact certain information is also consistent with the FOIA. I cannot opine on whether the custodian’s decision to redact your grade point average (“GPA”) is consistent with A.C.A. § 25-19-105(b)(2) because that exception is outside the scope of the authority the General Assembly has vested in the Attorney General under the FOIA.

DISCUSSION
All information relating to individual employees, former employees, or successful job applicants are either “personnel records” 2 or “employee evaluation or job performance records.” 3 The test for the 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 other than “employee evaluation or job-performance records” that pertain to individual employees. 4 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.” 5

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. 6 The balancing test, which takes place with the scale already tipped in favor of disclosure, 7 has two steps. Under the first step, the custodian must assess whether

2
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.” 3 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.” 4 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
5
Ark. Code Ann. § 25-19-105(b)(12).
6
308 Ark. 593, 826 S.W.2d 252 (1992).
7
Watkins et al. supra, at 208.
Ms. Candice Foscue
Opinion No. 2024-043
Page 3

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. 8 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 when he or she must determine whether the privacy interest is outweighed by the public’s interest in disclosure. 9

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. 10 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 11 If a document qualifies as an employee-evaluation record, the document cannot be released unless all the following elements have been met:

   • Suspension or termination. The employee was suspended or terminated;

   • Administratively finality. The suspension or termination is administratively final;

   • Relevance. The records in question formed a basis for the decision to suspend or terminate
   the employee; and

   • Compelling interest. The public has a compelling interest in the disclosure of the records
   in question. 12
   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

8
Young, 308 Ark. at 598, 826 S.W.2d at 255.
9
Id., 826 S.W.2d at 255.
10
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. 11 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
12
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
Ms. Candice Foscue
Opinion No. 2024-043
Page 4

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. 13 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. 14 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. 15

3. Classification and disclosure of termination letters. You provided two letters dated
   October 17, 2023, with a subject line of “Termination of employment” (with redactions). Because these documents were created by or at the behest of the 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. You were terminated, and it is my understanding that the termination is administratively final. In addition, the termination letters are relevant because they recount the reasons for the termination. 16

The inquiry, then, 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 when a position involves public trust or substantial authority, the activities of that employee are of significant importance. 17 A forensic chemist is a position involving public trust because a forensic chemist provides “expert forensic testimony” to assist with criminal prosecutions. Because your discharge relates to violations of that trust or gross incompetence (i.e., failing to

13
Watkins et al., supra, at 238–39.
14
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.”). 15 E.g., Ark. Att’y Gen. Op. 96-168.
16
This office has opined that a termination letter—even though written contemporaneously with the termination— forms a basis for the termination. Ark. Att’y Gen. Ops. 2024-021, 2023-120, 2006-026. 17 Ark. Att’y Gen. Ops. 2024-038 (opining that assistant principal was a position of trust with significant authority over students), 2024-021 (opining that law officers hold positions of significant trust), 2023-120 (opining that law officers hold positions of significant trust). Ms. Candice Foscue Opinion No. 2024-043 Page 5

meet quality standards and violating your employer’s ethics rules), the public has a compelling interest in the disclosure of the termination letters. So the custodian’s decision to disclose the termination letters appears to be consistent with the FOIA.

Further, the public may also have a compelling interest in the disclosure of the termination letters because your termination relates to a public controversy. Because you gave expert testimony in criminal cases and were discharged for failing to meet certain standards, that testimony could be challenged. This situation has “foreseeable and substantial ramifications” for the people involved in those criminal cases. 18 For this reason, the custodian’s decision to disclose the termination letters is consistent with the FOIA.

4. Classification and disclosure of remaining documents. You provided me several other
   records: the remainder of your personnel file (with redactions), your curriculum vitae, a list of court cases in which you and your work have been subpoenaed, and the job description for a forensic chemist. These records relate to you but were not created by your employer to evaluate you. As such, 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. Other than the redacted information, these records do not contain information that is of a private or intimate nature. Thus, the custodian’s decision to release these documents is consistent with the FOIA.

5. Redactions. The records custodian has properly identified that some discrete pieces of
   information contained in the records are of a personal or intimate nature and have a greater than minimal privacy interest. The redacted information is your personal contact information, social security number, date of birth, marital status, and information about dependents. The custodian has properly determined that disclosure of this information would be a clearly unwarranted invasion of your privacy. So the custodian’s decision to redact this information is consistent with the FOIA.

The custodian has also redacted your GPA from several locations. She noted the redactions were based on A.C.A. § 25-19-105(b)(2), which precludes release of “education records as defined in the Family Educational Rights and Privacy Act of 1974.” Because my statutory authority only extends to reviewing whether the custodian’s decision is consistent with 105(b)(12) and 105(c), I cannot address whether the custodian’s decision is consistent with 105(b)(2). But I can opine that the disclose of a GPA contained in employer records is not a clearly unwarranted invasion of your privacy under 105(b)(12). Whether that decision is consistent with 105(b)(2) is beyond the scope of this opinion.

18
Watkins et al., supra, at 236–37 (“But, if the issue is debated publicly and has foreseeable and substantial ramifications for those who are not direct participants, it is a public controversy. The existence of such a controversy surrounding a government agency and its employees could suggest a compelling public interest in records germane to that controversy, including evaluation and job-performance records.”). Ms. Candice Foscue Opinion No. 2024-043 Page 6

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

Sincerely,

TIM GRIFFIN
Attorney General