Was a school district right to withhold teacher personnel files and investigation records under Arkansas FOIA when the suspensions were never appealed to the school board?

Plain-English summary

Russ Racop asked the Arkansas AG to review Pulaski County Special School District's withholding of employee personnel files and records about suspensions. The district classified both groups as employee-evaluation records. Its stated reasons included that none of the suspensions had been appealed to the school board, the board had not acted on them, and no information would have formed a basis for a board decision. Racop sent personnel-policy material and A.C.A. § 6-17-208, but did not provide the disputed records.

The AG could not decide whether the district classified or withheld any record correctly without seeing it. He supplied a detailed legal framework instead. A personnel record generally may be released unless disclosure would be a clearly unwarranted invasion of personal privacy. An employee-evaluation record can be released only if the employee was suspended or terminated, that proceeding is administratively final, the record formed a basis for the decision, and the public has a compelling interest in disclosure.

The PDF contains analysis missing from the earlier stored text. A suspension letter is generally a personnel record, but when it describes the grounds for a disciplinary suspension, it is an evaluation record. A suspension imposed routinely without regard to the employee's conduct is administrative; a disciplinary suspension responds to conduct the employer considers below expectations. The custodian must use the record and surrounding facts to classify it.

For a disciplinary suspension, the AG says finality means the employer's "final decision[-]making step" regardless of bureaucratic level. "The lack of a school-board ruling, by itself, does not render a suspension non-final." He also says abandoning an internal appeal does not keep the underlying adverse action from becoming final. These rules reject finality shortcuts, but the AG did not apply them to the withheld records or decide whether they should be disclosed.

What this means for you

FOIA requesters

This opinion did not order the district to release the files or uphold its withholding. The AG lacked the disputed records and could not check their classification. If requesting AG review of a specific custodian decision, supply the records at issue when available; this case shows the limits of a review based only on a custodian's explanation and policy materials.

School records custodians

Classify each document before using a disclosure test. A record about an employee is not necessarily an employee evaluation. For a suspension letter, the AG distinguishes routine administrative suspension from discipline and asks whether the letter gives the grounds. If the record is an evaluation, apply all four release conditions, including fact-specific finality and compelling public interest.

A missing school-board ruling is not enough, by itself, to call a suspension non-final. The AG says finality depends on the employer's final decision-making step, which may be below board level. His discussion also addresses an employee who abandons an internal appeal. The opinion does not determine the district's actual procedures or the status of these employees' suspensions.

Parents and journalists

The opinion provides a way to understand the disclosure categories but no finding about these particular employees or incidents. Do not treat the district's characterization or the AG's general discussion as a ruling that the requested records are public or exempt.

Common questions

Did the AG uphold the district's withholding?
No. He said the records were not presented to him, so he could not determine whether the custodian correctly classified or withheld them.

Does the absence of a school-board vote make a suspension non-final? Not by itself. The AG says the FOIA's finality requirement refers to the employer's final decision-making step "regardless of the bureaucratic level at which the decision is made." He did not decide whether these suspensions had reached that step.

What if an employee abandons an internal appeal?
The AG says the underlying adverse action is final for FOIA purposes when an employee abandons the appeal before a ruling. He gives withdrawal of the appeal and resignation as examples, but makes no factual finding that either occurred here.

Are suspension letters personnel or evaluation records?
Generally personnel records, the AG says. If a letter reflects a disciplinary suspension and contains its grounds, it is an employee-evaluation record. The custodian must determine which description fits the record.

Does the four-part test mean every final suspension record is public? No. For an evaluation record, suspension or termination, administrative finality, relevance to that decision, and a compelling public interest must all be present. The AG could not evaluate those requirements for the records he had not seen.

Legal basis in the opinion

The PDF quotes A.C.A. § 25-19-105(c)(1), requiring "final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision" and a "compelling public interest." On finality, the AG writes: "The lack of a school-board ruling, by itself, does not render a suspension non-final." He closes: "I cannot opine that the custodian correctly classified the documents or correctly withheld them."

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-063, June 4, 2024; official seven-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-063

June 4, 2024

Mr. Russ Racop
Via email only: [email protected]

Dear Mr. Racop:
You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (“FOIA”). Your request is made as the requester of personnel and evaluation records under A.C.A. § 25-19-105(c)(3)(B)(i).

You submitted a FOIA request to the Pulaski County Special School District (PCSSD), seeking copies of (1) personnel files of certain PCSSD employees and (2) investigation records relating to the suspensions of those employees. The custodian has classified both types of records as employee evaluations and withheld them from disclosure under A.C.A.
§ 25-19-105(c)(1) for the following reasons:

• “None of the suspensions were appealed to the Board[.]”
• “[T]he Board has not acted on any of the suspensions.”
• “There is no information that would have formed the basis of the Board’s decisions on the suspensions.”

Along with your request, you submitted a copy of the Discipline and Grievances section of the PCSSD Personnel Policies for Certified Staff and A.C.A. § 6-17-208. You ask if the custodian’s decisions are consistent with the FOIA.

RESPONSE
Because the records have not been presented to me, I have not reviewed the records at issue, so I cannot definitively state whether the custodian has correctly classified the personnel files and investigation records at issue or correctly withheld them from disclosure. This opinion is therefore limited to an outline of the relevant law. Mr. Russ Racop Opinion No. 2024-063 Page 2

DISCUSSION

1. General rules. A document must be disclosed in response to a FOIA request if all three
   of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to PCSSD, which is a public entity subject to the FOIA. And the records at issue appear to be public records. 1 Because these records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 Because I have no information to suggest that the presumption can be rebutted, I will focus on whether any exceptions prevent the documents’ disclosure.

The FOIA contains two exemptions for two groups of documents normally found in employees’ personnel files. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records” 5 or “employee evaluation or job performance records.” 6 The test for whether these two types of documents may be released 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

1
The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions…carried out by a public official or employee.” A.C.A. § 25-19-103(7)(A). 2 Id.
3
See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.”’ (quoting Ark. Att’y Gen. Op. 2005-095)). 4 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. Att’y Gen. Op. 97-368; John J. Watkins et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (6th ed. 2017). 5 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.”) 6 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.”) Mr. Russ Racop Opinion No. 2024-063 Page 3

relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2. 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. 7

A personnel record is open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 8 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. 9 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 10 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. 11 If the privacy interest is minimal, then the records should be disclosed. 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. 12 Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee’s privacy interests outweigh the public’s interests. 13 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. 14 Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. 15 For instance, the FOIA exempts the personal contact information of certain public employees from disclosure,

7
See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
8
A.C.A. § 25-19-105(b)(12).
9
308 Ark. 593, 826 S.W.2d 252 (1992).
10
Watkins et al., supra, at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra, at 207.
15
A.C.A. § 25-19-105(f).
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Opinion No. 2024-063
Page 4

including their personal telephone numbers, personal email addresses, and home addresses. 16

3. 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. 17 “This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 18

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). 19
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 because that concern, at least theoretically, always

16
See A.C.A. § 25-19-105(b)(13).
17
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; 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); Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, and 93-055. 18 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
19
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
Mr. Russ Racop
Opinion No. 2024-063
Page 5

exists. 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. 20 These commentators also note that “[t]he status of the employee” or “his or her rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists, 21 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. 22 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. 23

4. Suspension records. This office has long concluded that a letter of suspension is
   generally considered a personnel record. 24 But that general rule does not apply when the record (1) reflects a disciplinary, as opposed to an administrative suspension and (2) contains the grounds for the suspension. 25 When both those elements are met, the record is an employee-evaluation record.

4.1. Administrative vs. disciplinary. For purposes of the FOIA, suspensions can be classified as disciplinary or non-disciplinary (the latter is sometimes called “administrative leave” or “administrative suspension”). 26 A suspension is non-disciplinary when it occurs as a routine policy of the employer that is initiated without regard for the propriety of the employee’s conduct. For example, it is common for police officers to be suspended with pay after an officer-involved shooting. During this non-disciplinary suspension, the police department investigates the circumstances. The investigation could result in some kind of disciplinary action. Or it might result in commendation. The key factor is that a non-disciplinary suspension is initiated without regard to whether the employee’s conduct fell below expectations. In contrast, a disciplinary suspension is always initiated precisely because the employer believes the employee’s conduct fell below expectations.

Sometimes the face of the record itself makes clear that the suspension is purely administrative or disciplinary. But when record itself is not entirely clear, it is up to the custodian to determine, based on all the surrounding facts available to the custodian,

20
Watkins et al., supra, at 238–39.
21
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”). 22 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
23
E.g., Ark. Att’y Gen. Op. 96-168.
24
See, e.g., Ark. Att’y Gen. Ops. 2024-015, 2023-117, 2023-111 (and opinions cited therein).
25
See Ark. Att’y Gen. Ops. 2024-015, 2023-111.
26
See, e.g., Ark. Att’y Gen. Ops. 2024-015, 2023-096, 2014-110.
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Opinion No. 2024-063
Page 6

whether the suspension is purely administrative. If so, then the record is classified as a personnel record, and the custodian must disclose the record unless doing so constitutes a clearly unwarranted invasion of the employee’s personal privacy.

But if the suspension is not purely administrative, then the custodian must move to the next step to assess whether the record contains the grounds for the suspension. If so, then the record is classified as an employee evaluation and cannot be released unless (1) the suspension is administratively final and (2) the public has a compelling interest in the record’s disclosure. 27

4.2. Final administrative resolution. When a disciplinary suspension became final is a question of fact to be determined by the custodian. This office has long opined that when the FOIA uses the term “final,” it refers to the “final decision[-]making step taken by” the employer “regardless of the bureaucratic level at which the decision is made.” 28 The lack of a school-board ruling, by itself, does not render a suspension non-final. 29 If that lack could render a suspension non-final, then every suspension that was not appealed to the board would also be non-final. 30

Further, when an employee abandons an internal-appeals process before obtaining a ruling, the underlying adverse action is final for purposes of the FOIA. 31 The manner in which the employee abandons the appeal—whether by withdrawing the appeal or by resigning—is irrelevant. 32 If the rule were otherwise, then an employee could render every adverse employment action non-final (and thus prevent the release of employee evaluations) by initiating and then terminating an internal-appeals process. 33

4.3. Compelling public interest. 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

27
See A.C.A. § 25-19-105(c). That statute creates a four-part test for the disclosure of employee evaluations. The text accompanying this footnote only addresses two of those elements because, under the scenario discussed above, the other two would always be met. 28 Ark. Att’y Gen. Ops. 2016-117, 2014-110, 2011-083; see also Watkins et al., supra, at 232.
29
Ark. Att’y Gen. Op. 2016-117.
30
Id.
31
See, e.g., Ark. Att’y Ops. 2016-117, 2005-030, 2002-158 (opining that “a resignation subsequent to a suspension has no impact on the question of whether there has been a final administrative resolution of the suspension….That is, the fact that the employee resigns after the initial suspension does not keep the suspension from being ‘final’ for purposes of the release of job performance records and such records may be released if the remainder of the test…is met.”) 32 Ark. Att’y Gen. Op. 2016-117.
33
Id.
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Opinion No. 2024-063
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position involves public trust or substantial authority, the activities of the employee are of significant importance. 34

In addition, the public may also have a compelling interest in the disclosure of these suspension records if the suspensions relate to a public controversy. The conduct of school employees is often “debated publicly” because that conduct “has foreseeable and substantial ramifications for those who are not direct participants,” i.e., the whole community. 35

5. Summary. Because the records have not been presented to me, I have not reviewed the
   records at issue. Thus, I cannot opine that the custodian correctly classified the documents or correctly withheld them under A.C.A. § 25-19-105(c)(1). Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

34
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). 35 Watkins et al., supra, at 2326–37 (“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 governmental agency and its employees could suggest a compelling public interest in records germane to that controversy, including evaluation and job-performance records.”)

But the existence of a public controversy presupposes public awareness of the underlying episode giving rise to the controversy. Ark. Att’y Gen. Op. 2014-122. Absent such awareness, the public will remain ignorant of the misconduct. Id. Under this scenario, the absence of a public controversy establishes little regarding whether a compelling public interest in disclosure exists. Id.