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 submitted a FOIA request to Pulaski County Special School District for personnel files and suspension-investigation records of certain employees. The District withheld everything as employee-evaluation records, arguing:
- "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."
Racop, as the requester, asked the AG to review whether the withholding was consistent with FOIA.
Attorney General Tim Griffin could not give a definitive answer because Racop did not submit copies of the records. Without records to review, the AG can only outline the law:
Personnel records are open unless disclosure is a clearly unwarranted invasion of personal privacy under the Young v. Rice two-step balancing test. The District's blanket classification of everything as employee-evaluation records is unusual; ordinary personnel files contain a mix.
Employee-evaluation records are exempt unless all four elements are met:
1. Suspension or termination
2. Administrative finality (the action cannot be reversed administratively)
3. Relevance (the records were the basis for the action)
4. Compelling public interest
The District's argument that no Board appeal happened and the Board never acted goes to administrative finality (element 2), but that question depends on the District's specific procedure. If a suspension did not require Board action and was final without it, element 2 is satisfied. If Board action was required and never came, element 2 may fail.
The opinion is a useful reminder that requesters who want substantive AG review need to provide copies of what was withheld (or at least the District's itemized log), not just the cover letter.
What this means for you
If you are a FOIA requester
Two practical takeaways:
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Provide records. When you ask the AG to review a custodian's decision under § 25-19-105(c)(3)(B)(i), include copies of what you received and what you are challenging. Without records, the AG can only restate the law, which is not helpful in resolving your actual dispute.
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Push for an exemption log. If the custodian withholds documents, ask for a log identifying each withheld record and the legal basis. Arkansas FOIA does not have a Vaughn-index requirement built into the statute, but you can ask, and the log helps you build the AG opinion request and any subsequent litigation.
If you are a records custodian for a school district
The District's position raises a flag worth checking. The argument that "the suspensions were not appealed" or "the Board did not act" is about administrative finality. Look at whether your district's policies actually require Board action for a suspension to be final, or whether building-level discipline is final once issued. The answer determines whether element 2 is met.
Avoid blanket classifications. A "personnel file" usually contains both personnel records and evaluation records. Sort each document and apply the appropriate test. Releasing personnel records and withholding evaluation records is the conservative path.
If you are a school district attorney
The four-element test is fact-intensive. If you are advising a withholding, document how each element is or is not met. Specifically:
- For element 1, document the personnel action.
- For element 2, document the appeal process and confirm finality.
- For element 3, identify which records formed the basis (and which did not).
- For element 4, weigh the public interest, particularly for staff in positions of trust (teachers and administrators interacting with children, school resource officers).
If you are a parent or community member trying to get information about disciplined school staff
Personnel records (employment confirmation, hire dates, salaries, basic credentials) are normally releasable. Investigation files and discipline-records are harder to access. The District here used a strict reading of the four-element test to lock everything down. The AG could not assess that read without records, but the rule remains: only released if all four elements are met.
For names of suspended or terminated staff, Board minutes and meeting agendas are typically releasable (those are public meetings) and may give you the headline information without entering the FOIA dispute.
Common questions
Q: I am a FOIA requester. Why does the AG need copies of records I never got?
A: To assess whether the custodian's classification and withholding decisions match the law, the AG has to see the documents. Even partial materials (the cover letter, an index, a sample of what was released) help. Without them, the AG can only state the legal framework.
Q: The District claims none of the suspensions were appealed. Does that automatically make the records exempt?
A: No. It goes to one element (administrative finality) of a four-element test. If the suspensions did not require board action to be final, finality is met and the records may still be releasable if the other three elements are also satisfied. If finality is not met, the records are exempt.
Q: Can a school district withhold all teacher personnel files just because the teachers were suspended?
A: Probably not as a blanket rule. Personnel files contain both personnel records (open absent privacy concerns) and evaluation records (closed unless the four elements are met). The District should sort and apply the right test to each document.
Q: The District says no records formed the basis of any Board decision. Doesn't that mean nothing is releasable?
A: That argument addresses element 3 (relevance) for whatever records the Board might have used. But "no records formed the basis" because the Board never decided is a Catch-22 if the Board never acted. The four-element test contemplates situations where a final personnel action was taken, supported by underlying records. If no final action exists, the records stay closed for now, but the analysis depends on the procedural posture.
Q: What about A.C.A. § 6-17-208 that I sent the AG?
A: A.C.A. § 6-17-208 deals with public-school employee fair hearings and the procedural rights of school employees. The AG's outline of the FOIA framework here did not analyze § 6-17-208 in depth, but it ties into element 2 (administrative finality) of the FOIA four-element test.
Background and statutory framework
Arkansas FOIA's framework for personnel files:
- Personnel records (A.C.A. § 25-19-105(b)(12)): Records that pertain to an individual employee but were not created to evaluate them. Released unless disclosure is a clearly unwarranted invasion of personal privacy. Young v. Rice two-step test applies.
- Employee-evaluation/job-performance records (A.C.A. § 25-19-105(c)(1)): Records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance. Withheld unless all four elements:
- Suspension or termination
- Administrative finality
- Relevance
- Compelling public interest
A custodian must classify each document, then apply the appropriate test. The Arkansas Supreme Court approved the AG's definition of evaluation records in Thomas v. Hall, 2012 Ark. 66.
Section 25-19-105(c)(3)(B)(i) lets the requester (or the subject) ask the AG for an opinion on whether a custodian's release decision is consistent with FOIA. The AG reviews based on records presented; without records, the AG is limited to outlining the law.
A.C.A. § 6-17-208 is the Public School Employee Fair Hearing Act framework that interacts with administrative finality determinations for school-employee discipline.
Citations and references
Statutes:
- A.C.A. § 25-19-103(7)(A) (public record definition)
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records four-element test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (request for AG review)
- A.C.A. § 6-17-208 (Public School Employee Fair Hearing Act provisions)
Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (Ark. 1992) (privacy balancing test)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (Ark. 2007) (rebuttable presumption of public-record status)
Source
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.
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. Because these records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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 either a "personnel record" or an "employee evaluation or job performance record" and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.
2. Personnel records. Personnel records are records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee. Personnel records are open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court in Young v. Rice applied a two-step balancing test (with a thumb on the scale in favor of disclosure): (1) is the privacy interest greater than minimal, and if so, (2) does the public's interest in disclosure outweigh it.
3. Employee-evaluation records. Employee-evaluation and job-performance records are 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. They are withheld unless all four elements are met:
- Suspension or termination
- Administrative finality
- Relevance (the records formed a basis for the decision)
- Compelling public interest
4. Custodian's role. It is the duty of the records custodian to (1) identify which public records are responsive to a FOIA request; (2) properly classify the requested records; and (3) apply the appropriate test for disclosure. But because you have provided no records, I cannot review the accuracy of the District's decision. Thus, I cannot conclude whether the custodian correctly classified the records or correctly released or withheld them under the FOIA.
[Senior Assistant Attorney General prepared this opinion, which I hereby approve.]
Sincerely,
TIM GRIFFIN
Attorney General