How does the Arkansas AG decide whether a school district properly released personnel records under FOIA when the requester challenges the redactions?

Plain-English summary

Phyllis Harrington sought personnel files for Collegeville Elementary School staff, complaint records, and data on student discipline from Bryant Public School District. The district said it placed responsive records on a thumb drive, withheld employee-evaluation and job-performance records, and redacted specified private information from personnel files. Harrington sent the AG the superintendent's cover letter and earlier AG opinions, but no copies of the released records.

The AG could not decide whether the district classified, redacted, released, or withheld the records correctly without reviewing them. He explained the applicable FOIA rules instead. A personnel record pertains to an employee but was not created to evaluate the employee. It generally must be released unless doing so would be a clearly unwarranted invasion of personal privacy; some discrete information may need redaction. An employee-evaluation or job-performance record is created by or for the employer to evaluate performance and detail it. Such a record is released only if all four conditions are met: suspension or termination, administrative finality, relevance to that decision, and compelling public interest.

For the compelling-interest condition, the AG quoted commentators who consider the nature of the infraction, any public controversy, and the employee's position within the agency. The opinion does not compare teachers with law-enforcement officers, or decide whether the public has a compelling interest in any of the withheld records here.

What this means for you

FOIA requesters

An AG review of specific redactions depends on seeing the documents. This opinion reached no finding on Bryant's actual decisions because Harrington supplied no copies of the records. The superintendent's explanation alone was insufficient for the AG to assess classification or redaction. The opinion gives you the tests to apply when examining records and a custodian's stated grounds.

School records custodians

Classify each responsive record and apply the matching disclosure rule. For personnel records, weigh the employee's privacy interest against the public's interest, with disclosure favored. For evaluation records, confirm all four statutory conditions before release. The AG lists examples of employment documents generally subject to disclosure and private details that may require redaction, but he did not inspect the district's particular redactions here.

Parents and journalists

The opinion does not decide what Bryant should have released or withheld. A district's statement that no records formed the basis of a suspension or termination is part of its response, not an AG finding in this case. The compelling-interest inquiry depends on the facts of the particular record and event; this opinion supplies no occupational ranking between teachers and other public employees.

Common questions

Did the AG approve the district's redactions?
No. Because the records were not presented to him, he could not assess whether the district classified or redacted them correctly.

What can be released from a personnel file?
The AG says personnel records are generally open unless release would be a clearly unwarranted invasion of personal privacy. He lists employment confirmation, hire dates, job titles, salaries, and similar information as examples of records generally subject to disclosure. A document that may be released can still contain exempt details that need redaction.

When may an evaluation record be released?
Only after suspension or termination, final administrative resolution, a finding that the record formed a basis for that decision, and a compelling public interest in disclosure. The AG did not decide whether those conditions were met for Bryant's records.

Does the opinion say a thumb drive was the required way to respond? No. It reports the district's explanation that the records were too voluminous for email. A PDF footnote quotes the FOIA provision allowing a citizen to request a copy in a readily available medium or a format readily convertible with the custodian's software; the AG did not evaluate the delivery choice.

Does the opinion say teachers' misconduct attracts less public interest? No. The commentators' factors quoted by the AG include the nature of the infraction, related controversy, and the employee's position. He made no teacher-versus-officer comparison.

Legal basis in the opinion

The AG quotes the personnel-records exemption for disclosure that would be "a clearly unwarranted invasion of personal privacy." For employee evaluations, he lists four requirements: "Suspension or termination," "Administrative finality," "Relevance," and "Compelling interest." His conclusion is limited: because no records were provided, he "cannot conclude whether the custodian correctly classified the records or correctly released or withheld them under the FOIA."

Source

• Official Arkansas Attorney General opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2024-071, July 29, 2024; official seven-page PDF, including footnotes)

Original opinion text

Opinion No. 2024-071

July 29, 2024

Phyllis Harrington
Via email only: [email protected]

Dear Ms. Harrington:

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).

The correspondence you have provided indicates that you submitted a FOIA request to the Bryant Public School District for “[c]opies of the personnel files, including the application of employment of all staff at Collegeville Elementary School”; “[c]opies of any documents that deal with or refer to any and all complaints (external and internal) made about all staff members, without regard to any investigation or disciplinary action”; and “[d]emographics of disciplinary action taken against black vs white students.”

Other than copies of previous Attorney General opinions, the only document you have provided me is the cover letter from the Bryant Public School District’s Superintendent in response to your FOIA request. In that letter, the Superintendent states that the District “placed records responsive to your July 18, 2024 FOIA request on a thumb drive” because the “records are too voluminous for email.” These records “do not include employee evaluation and job performance records…because no records formed the basis of a decision to suspend or terminate an employee and the remaining requirements of Ark. Code Ann. 25-19-105(c)(1) have not been met.” The District also “redacted certain information from the personnel files that, if released, would constitute a clearly unwarranted invasion of an employee’s personal privacy.”1

1
The letter provides that redactions were made to personal contact information of public employees, including personal telephone numbers, personal email addresses and home addresses; marital status of employees and information about dependents; dates of birth of public employees; social security numbers, medical information, driver’s license numbers; insurance coverage; tax information or withholding; payroll deductions; personnel numbers; direct deposit authorization records; W-4 Form information; transcript information; and banking information. Ms. Phyllis Harrington Opinion No. 2024-071 Page 2

You have not provided copies of any of the records that the District has decided to release.

RESPONSE

It is the statutory duty of this office under A.C.A. § 25-19-105(c)(3)(B) to state whether a custodian’s decision to release “personnel or evaluation records” is consistent with the FOIA. As custodian of the records, it appears that the Bryant Public School District has determined that (1) the information you have requested is both personnel records and employee-evaluation or job-performance records and (2) that the employee-evaluation and job-performance records should be withheld, while the personnel records should be released with certain redactions. But you have not provided me with copies of any of the records. Thus, I cannot determine whether the District’s decision to classify, redact, and release is consistent with the FOIA. I can only set forth the legal standards that the custodian must apply to determine whether to release the records in question.

DISCUSSION

1. General rules. A document must be released in response to a FOIA request if all three
   of the following elements are met.2 First, the FOIA request must be directed to an entity subject to the FOIA.3 Second, the requested document must constitute a public record.4 Third, no exemptions allow the document to be withheld.5

The first two elements appear to be met here. Your request was made to the Bryant Public School District, which is a public entity subject to the FOIA.6 And the records at issue appear to be public records.7 Because these records are held by a public entity, they are

2
“A citizen may request a copy of a public record in any medium in which the record is readily available or in any format to which it is readily convertible with the custodian's existing software.” A.C.A. § 25-19- 105(d)(1)(B). Under A.C.A. § 25-19-105(a)(3), the custodian must also respond to written requests for public records that “no records exist,” if no records exist, or “identify the applicable exemptions,” if responsive records are exempt. 3 Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
4
Id.
5
Id.
6
All public entities, including public schools and school districts are subject to the FOIA open-records and open-meetings requirements. See A.C.A. §§ 25-19-103(7)(A) (defining public records to include certain records), 25-19-106(a) (including “school districts” as public entities subject to the FOIA open-meeting requirements); Ark. Att’y Gen. Op. 2009-060 (opining that “[a]ll public entities…are subject to the FOIA”). 7 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) Ms. Phyllis Harrington Opinion No. 2024-071 Page 3

presumed to be public records,8 although that presumption is rebuttable.9 Because I have no information to suggest that the presumption can be rebutted, I will turn to whether any exemptions prevent the documents’ release.

For purposes of the FOIA, employees’ personnel files normally contain two distinct groups of records:10 “personnel records” and “employee evaluation or job performance records.” The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a 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. 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 were not created by or at the behest of the employer to evaluate the employee.11

Once a custodian classifies a document as a “personnel record,” they must release that document unless doing so would be a “clearly unwarranted invasion of personal privacy.”12

Although 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.13 The balancing test, which takes place with “a thumb on the scale” in favor of disclosure, has two steps.

8
Id.
9
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)). 10 “Personnel files” are not referenced in the FOIA but typically includes the following documents: 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. Ops. 2016-104, 97-368; John J. Watkins, et al., The Arkansas Freedom of Information Act 187-89 (5th ed. 2009). 11 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; John J. Watkins, et al., The Arkansas Freedom of Information Act 202 (6th ed., 2017). 12 A.C.A. § 25-19-105(b)(12).
13
308 Ark. 593, 826 S.W.2d 252 (1992).
Ms. Phyllis Harrington
Opinion No. 2024-071
Page 4

First, the custodian must assess whether the information contained in the requested record is of a personal or intimate nature such that it gives rise to a greater-than-minimal privacy interest.14 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-minimal privacy interest, then the custodian must determine whether that interest is outweighed by the public’s interest in disclosure.15 Even if a record, when considered as a whole, meets the test for disclosure, it may contain certain pieces of information that must be redacted before disclosure.

Because FOIA exemptions must be narrowly construed, the person resisting release of records bears the burden of showing that, under the circumstances, their privacy interests outweigh the public’s interests.16 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.17

This office has consistently opined that the following are personnel records subject to disclosure under the FOIA: documents that confirm someone’s employment;18 dates of hire;19 general education background, including schools attended and degrees received;20 training and certifications;21 job titles;22 employment contracts;23 and employee names,24 salaries,25 and payroll records.26

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted, such as personal contact information

14
Young, 308 Ark. at 598, 826 S.W.2d at 255.
15
Id.
16
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
17
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., supra note 8, at 207.
18
Ark. Att’y Gen. Ops. 97-063, 97-063.
19
Ark. Att’y Gen. Ops. 2016-103, 95-256.
20
Ark. Att’y Gen. Ops. 2016-124, 2015-034, 2008-082, 2006-176.
21
Ark. Att’y Gen. Ops. 2002-252 (training), 2006-165 (educational background), 96-256 (certifications).
22
Ark. Att’y Gen. Ops. 95-012, 91-351.
23
Ark. Att’y Gen. Op. 93-337.
24
Ark. Att’y Gen. Op. 2009-156.
25
Ark. Att’y Gen. Op. 2002-159.
26
Ark. Att’y Gen. Ops. 2008-129, 94-198.
Ms. Phyllis Harrington
Opinion No. 2024-071
Page 5

of public employees (including personal phone numbers, email addresses, and home addresses),27 employee personnel numbers or identification codes;28 marital status of public employees;29 dates of birth of public employees;30 social security numbers;31 driver’s license numbers;32 insurance coverage;33 tax information or withholdings;34 payroll deductions;35 and banking information.36 The custodian would need to review the records to redact any of the foregoing exempt information before release.

3. Employee-evaluations records. Although the FOIA itself does not define the phrase
   “employee-evaluation record” or “job-performance record,” the Arkansas Supreme Court has adopted this office’s view that such records are (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.37 This exemption includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.38

Once a custodian classifies a document as a “employee-evaluation record” or “job-performance record,” that document must be withheld and not released unless all the following elements have been met:

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

27
A.C.A. § 25-19-105(b)(13).
28
Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070. Public employee personnel numbers are exempt from disclosure because “these numbers presumably provide access to computerized data, and records containing “personal identification numbers” used for computer security functions are specifically exempt from disclosure under the FOIA.” Ark. Att’y Gen. Op. 2022-032; see also A.C.A. § 25-19-105(b)(11). 29 Ark. Att’y Gen. Op. 2001-080.
30
Ark. Att’y Gen. Op. 2007-064.
31
Ark. Att’y Gen. Ops. 2006-035, 2003-153.
32
Ark. Att’y Gen. Op. 2007-025.
33
Ark. Att’y Gen. Op. 2004-167.
34
Ark. Att’y Gen. Ops. 2005-194, 2003-385.
35
Ark. Att’y Gen. Op. 98-126.
36
Ark. Att’y Gen. Op. 2005-194.
37
Thomas v. Hall, 2012 Ark. 66, 8–9, 13, 399 S.W.3d 387, 392, 394–95 (2012); see also Ark. Att’y Gen. Ops. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 1998-006, 2997-222, 1995-351, 1994-306, 1993-055. 38 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
Ms. Phyllis Harrington
Opinion No. 2024-071
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• Administrative finality. The suspension or termination is administratively final and is, therefore, incapable of any administrative reversal or modification;

• 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.39

As for the fourth element, the FOIA does not define the 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.40

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.41 The primary purpose of this particular exemption is to preserve the confidentiality of the formal job- evaluation process in order to promote honest exchanges between employees and their employers.42

39
A.C.A. § 25-19-105(c)(1).
40
Watkins, et al., supra note 8, at 238–39; see also Ark. Att’y Gen. Ops. 2016-084, 2015-108.
41
Watkins, et al., supra note 8, 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.”). 42 E.g., Ark. Att’y Gen. Op. 96-168.
Ms. Phyllis Harrington
Opinion No. 2024-071
Page 7

4. Summary. As explained above, 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.43

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.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

43
See, e.g., Ark. Att’y Gen. Ops. 2022-006, 2020-032, 2017-113.