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 requested personnel files for all staff at Collegeville Elementary School in Bryant Public School District, plus complaint records and disciplinary demographics. The District provided records on a thumb drive (because the volume was too large for email) but withheld employee-evaluation and job-performance records and applied standard redactions for personal identifiers, marital status, dates of birth, SSNs, banking, etc.

Harrington asked the AG, as the requester, whether the District's redaction and withholding decisions were consistent with FOIA. Under A.C.A. § 25-19-105(c)(3)(B)(i), a requester who is not the subject of the records can ask the AG to review the custodian's decision.

But the AG could not review the District's decision because Harrington did not provide copies of the released records. Without the actual records, the AG cannot determine whether the classification was correct, whether the redactions properly excluded only the listed private items, or whether other documents should have been released.

What the AG could do was lay out the legal standards the custodian must apply:

• For personnel records, release unless disclosure is a clearly unwarranted invasion of personal privacy under the Young v. Rice two-step balancing test.
• For employee-evaluation/job-performance records, withhold unless all four elements line up: suspension or termination, administrative finality, relevance, and compelling public interest.

What this means for you

If you are a FOIA requester challenging a custodian's release decision

If you want the AG to review whether the custodian's response was correct, you have to give the AG something to review. Send copies of the released records (or screenshots, or the redacted documents you received) along with your opinion request. Without that, the AG can only restate the legal framework, which does not move your case forward.

The AG also cannot review the custodian's withholding of records you never received. If you suspect there are additional documents the custodian decided not to release, ask the custodian directly for an itemized log of withheld records and the legal basis for each withholding. Then bring that log into your AG opinion request.

If you are a records custodian for a school district or other public agency

This opinion is a useful template for the analysis you have to do every time a personnel-records request comes in:

1. Classify each document. Personnel record (kept about the employee, not created to evaluate them) or employee-evaluation/job-performance record (created to evaluate)?
2. For personnel records, run the Young v. Rice two-step balancing test. Release unless disclosure would be a clearly unwarranted invasion of privacy.
3. For employee-evaluation records, withhold unless all four elements are met: the employee was suspended or terminated; that action is administratively final; the records formed a basis for it; and there is a compelling public interest.
4. Apply standard redactions for personal contact info, SSNs, DOBs, marital status, dependents, banking, tax info, payroll deductions, personnel numbers, driver's license numbers, and insurance.
5. Document your reasoning. If asked to defend your classifications, be ready with a list of what you released, what you redacted, and why.

The AG specifically called out that the burden falls on the person resisting disclosure, not the requester. Stilley v. McBride, 332 Ark. 306 (1998).

If you are a parent of a student in a public school district

You can request personnel records of school staff under Arkansas FOIA. The district will likely give you names, hire dates, salaries, job titles, and qualifications, with redactions for personal identifiers. Disciplinary records of teachers stay confidential unless the teacher was suspended or terminated, the action was final, the discipline was based on the records, and there is a compelling public interest. That last factor is harder to establish for a teacher than for a state trooper, because the AG has tied compelling-interest findings most strongly to law-enforcement officers.

If you are a journalist or watchdog

For school district FOIA work, expect the personnel-records framework to apply uniformly. You will likely get more on hiring, salary, and qualifications than on internal discipline. If there is a public controversy, the four-element test for evaluation records can be satisfied by tying the requested records to a specific suspension or termination action plus a documented public concern.

Common questions

Q: I asked for records and got some back. Can the AG tell me if the redactions were proper?
A: Only if you give the AG copies of the records you received. The AG cannot review what he cannot see.

Q: My district said records were "too voluminous to email" and put them on a thumb drive. Is that allowed?
A: Yes. Under A.C.A. § 25-19-105(d)(1)(B), records can be provided in any medium in which the record is readily available or readily convertible. A thumb drive is fine if email is impractical.

Q: My district refused to release teacher evaluations. Is that proper?
A: Probably yes, unless the teacher in question was suspended or terminated, the action was administratively final, the evaluations formed the basis for that action, and there is a compelling public interest. Otherwise, evaluations are confidential under A.C.A. § 25-19-105(c)(1).

Q: What if I just want to know who has been disciplined at the school?
A: That information may be inferable from public meeting minutes (school board votes on personnel actions are typically open), but the underlying evaluation records remain protected unless the four-element test is met.

Q: How does the privacy redaction list work?
A: Standard redactions in personnel records include personal contact information (phone, email, home address), employee personnel numbers, marital status, dates of birth, SSNs, driver's license numbers, insurance coverage, tax withholdings, payroll deductions, and banking information.

Q: What if the district says no records exist?
A: The custodian must tell you that "no records exist" if that is the case (A.C.A. § 25-19-105(a)(3)). If responsive records exist but are exempt, the custodian must "identify the applicable exemptions."

Background and statutory framework

Arkansas FOIA gives both the subject of a record and a requester the right to ask the AG whether a custodian's decision is consistent with FOIA. A.C.A. § 25-19-105(c)(3)(B)(i). The AG's review is limited to records actually presented; he cannot rule on disclosure decisions for records he has not seen.

Personnel files of public-employee records contain two distinct categories:

• Personnel records are records about the employee not created to evaluate them. They are open under A.C.A. § 25-19-105(b)(12) unless disclosure would be a "clearly unwarranted invasion of personal privacy." The Young v. Rice test asks (1) whether the privacy interest is greater than minimal, and (2) if so, whether the public's interest in disclosure outweighs it. The custodian resisting disclosure bears the burden.

• Employee-evaluation/job-performance records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance on the job. Thomas v. Hall, 2012 Ark. 66 (Ark. 2012). They are exempt under A.C.A. § 25-19-105(c)(1) unless all four of these are met:

• Suspension or termination. The employee was suspended or terminated.
• Administrative finality. The suspension or termination is administratively final, incapable of reversal or modification.
• Relevance. The records were the basis for the suspension or termination.
• Compelling public interest. Considered against the Watkins commentary factors: nature of the infraction (with public-trust violations or gross incompetence given heightened weight), existence of related public controversy, and the employee's position in the agency hierarchy.

Standard privacy redactions under A.C.A. § 25-19-105(b)(13) and prior AG opinions cover personal contact information, SSNs, DOBs, marital status, dependents, banking information, tax withholdings, payroll deductions, and personnel numbers.

When a requester challenges a custodian's response under § 25-19-105(c)(3)(B)(i), the AG's review is limited by the records before him. This opinion is a useful reminder that requesters who want a substantive review need to provide actual copies of what the custodian released, plus any documentation of what was withheld.

Citations and references

Statutes:
- A.C.A. § 25-19-103(7)(A) (public record definition)
- A.C.A. § 25-19-105(a)(3) (response requirements)
- A.C.A. § 25-19-105(b)(11)–(13) (personnel exemptions and redactions)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG review request)
- A.C.A. § 25-19-105(d)(1)(B) (records in any medium)
- A.C.A. § 25-19-106(a) (public meetings)

Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (Ark. 1992) (two-step privacy test)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (Ark. 1998) (custodian bears burden)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Ark. 2012) (employee-evaluation records definition)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (Ark. 2007) (rebuttable public-record presumption)
- Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (Ark. 1987) (three-element FOIA test)

Source

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

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." [The letter notes redactions for: 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.]

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. First, the FOIA request must be directed to an entity subject to the FOIA. Second, the requested document must constitute a public record. Third, no exemptions allow the document to be withheld.

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. 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 turn to whether any exemptions prevent the documents' release.

For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "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.

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."

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

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. 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. 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. 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.

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

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 of public employees (including personal phone numbers, email addresses, and home addresses), employee personnel numbers or identification codes; marital status of public employees; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; and banking information. 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. This exemption includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

Once a custodian classifies a document as an "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;
• 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.

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.

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. 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.

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.

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