Can an Arkansas school district refuse to release any of an employee's personnel file under a FOIA request, claiming the whole file is exempt?

Plain-English summary

Eric Darden, an employee of the Texarkana Arkansas School District, was involved in an incident with another district employee. Darden submitted an Arkansas FOIA request for his own personnel file, the other employee's entire personnel file, and the entire investigation file of the incident. The district's records custodian denied the request, claiming the other employee's personnel file was "exempt from disclosure under Arkansas' Freedom of Information Act."

Darden invoked his right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the custodian's blanket denial was consistent with FOIA. The AG said no. The FOIA does not contain a blanket exemption for personnel records. Some records in a personnel file are "personnel records" under A.C.A. § 25-19-105(b)(12), and some are "employee evaluation or job performance records" under A.C.A. § 25-19-105(c)(1). Each type has its own test for release, and most records in a personnel file will fail to meet the threshold for nondisclosure.

The AG could not opine on whether any specific record had to be released because he had not seen the records. He laid out the legal standard the custodian had to apply: personnel records get the Young v. Rice balancing test (privacy interest weighed against public interest in disclosure, with a thumb on the scale favoring disclosure); employee evaluation or job performance records are nondisclosable unless the employee was suspended or terminated and there is a compelling public interest in their release.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Can an Arkansas school district refuse to release any part of an employee's personnel file?
A: No, not as a blanket denial. The AG said "a blanket denial of access to records normally kept in an employee's personnel file is inconsistent with the FOIA. The FOIA does not provide a blanket exemption for every personnel record and employee-evaluation record maintained by a school district."

Q: What is the difference between a "personnel record" and an "employee evaluation record" under FOIA?
A: "Personnel records" are all records that pertain to individual employees other than evaluation and job performance records (Op. Att'y Gen. No. 1999-147). Examples: employment applications, school transcripts, payroll documents, transfer records, insurance forms, recommendation letters, disciplinary records. "Employee evaluation or 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 (Thomas v. Hall, 2012 Ark. 66).

Q: How does a custodian decide whether a personnel record must be released?
A: Under A.C.A. § 25-19-105(b)(12), personnel records must be released except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Young v. Rice, 308 Ark. 593 (1992), test has two steps. Step one: does the record contain information of a "personal or intimate nature" giving rise to a greater than de minimis privacy interest? If not, disclose. Step two: if yes, does the public interest outweigh the privacy interest? "Public interest" is measured by how much disclosure would "shed light on an agency's performance of its statutory duties."

Q: How does the test work for employee evaluation or job performance records?
A: These records get a tougher test. They cannot be released unless (1) there has been final administrative resolution of a suspension or termination proceeding, (2) the records formed a basis for that decision, and (3) there is a compelling public interest in their disclosure. A.C.A. § 25-19-105(c)(1). If the employee was not suspended or terminated, the records stay sealed.

Q: Who has the burden of proof when someone wants to keep records sealed?
A: The person resisting disclosure. The Arkansas Supreme Court has held the exceptions must be narrowly construed and the resister carries the burden (Stilley v. McBride, 332 Ark. 306 (1998)). The fact that the subject of the records considers their release an unwarranted invasion is irrelevant; the test is objective.

Q: What information always gets redacted before release?
A: Dates of birth of public employees, personal contact information (A.C.A. § 25-19-105(b)(13)), social security numbers, and medical information. The opinion pointed to AG Opinion No. 2012-063 for a more complete list.

Q: What happens if the records custodian and the requester disagree about the call?
A: The Arkansas FOIA gives any of three parties (the custodian, the requester, or the subject of the records) the right to ask the AG for an opinion on whether the custodian's decision is consistent with FOIA. A.C.A. § 25-19-105(c)(3)(B)(i). This opinion is the AG's formal advisory response, not a court order.

Background and statutory framework

The Arkansas Freedom of Information Act, codified at A.C.A. § 25-19-101 et seq., presumes public access to government records and identifies specific exceptions. Personnel files sit at the intersection of two such exceptions: subsection (b)(12) for "personnel records" and subsection (c)(1) for "employee evaluation or job performance records."

A document falls within FOIA's scope if (1) the request is directed to a covered entity, (2) the document is a "public record" under A.C.A. § 25-19-103(5)(A), and (3) no exception applies. A school district is a covered entity, and personnel files clearly qualify as public records ("[a]ll records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records").

The personnel-records exception under (b)(12) requires release unless disclosure would be "a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court interpreted this phrase in Young v. Rice, 308 Ark. 593 (1992). The test asks first whether the record contains information of a "personal or intimate nature" giving rise to more than a de minimis privacy interest. If not, the record must be disclosed (the thumb on the scale always favors disclosure). If there is a greater privacy interest, it is weighed against the public's interest in disclosure, which the court measures by reference to how much the disclosure would shed light on the agency's performance of its duties (Stilley v. McBride, 332 Ark. 306 (1998), quoting Dept. of Defense v. FLRA, 510 U.S. 487 (1994)).

The employee-evaluation exception under (c)(1) is narrower but offers stronger protection when it applies. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defined "employee evaluation or job performance records" as 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. This includes records generated while investigating allegations of employee misconduct that detail incidents giving rise to the allegations. Even where the (c)(1) definition is met, the records remain nondisclosable unless the employee was suspended or terminated, the records formed a basis for that discipline, and there is a compelling public interest in disclosure.

Some specific data points within otherwise-disclosable records must be redacted. A.C.A. § 25-19-105(b)(13) shields personal contact information. Other AG opinions identify dates of birth (Op. 2007-064), social security numbers (Ops. 2006-035, 2003-153), and medical information (Op. 2003-153) as required redactions. Op. 2012-063 collects the list.

The AG's role under A.C.A. § 25-19-105(c)(3)(B)(i) is advisory. He issues an opinion on whether the custodian's decision is consistent with FOIA. The opinion is persuasive but not binding on the custodian or on a reviewing court. In practice, custodians who receive an AG opinion contrary to their initial position typically reconsider, both because litigation risk is real and because the AG's reading carries weight in the courts.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2014-006
January 28, 2014

Eric P. Darden
Texarkana Arkansas School District
3435 Jefferson Avenue
Texarkana, Arkansas 71854

Dear Mr. Darden:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation 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.

Specifically, your letter states that you requested records related to an incident involving you and another Texarkana Arkansas School District ("TASD") employee. You state that, in addition to your own personnel file, you also requested the entire personnel file of the other TASD employee, as well as the entire investigation file of the aforementioned incident. The custodian has concluded that the other TASD employee's personnel file is "exempt from disclosure under Arkansas' Freedom of Information Act." You ask whether this decision is consistent with the FOIA.

RESPONSE

My duty under subsection 25-19-105(c)(3)(B)(i) is to state whether the decision of the custodian of records is consistent with the FOIA. In my opinion, a blanket denial of access to records normally kept in an employee's personnel file is inconsistent with the FOIA. The FOIA does not provide a blanket exemption for every personnel record and employee-evaluation record maintained by a school district. Because I have not seen any of the records at issue, however, I cannot opine on whether any specific record must be disclosed in this case. Nor can I opine on whether any specific redactions are needed for the sub-set of records that almost certainly must be disclosed in response to your FOIA request. I can only set out the legal standard the custodian must apply in making this determination.

DISCUSSION

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 are clearly met in this case. As for the first element, the documents are held by the school district, which is a public entity. As for the second element, the FOIA defines "public record" 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 which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records."

All the documents clearly meet this definition. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

Exceptions to disclosure

Under certain conditions, the FOIA exempts two items 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 make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

Personnel-records exception

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. But this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, has provided some guidance. To determine whether the release of a personnel record would constitute a "clearly unwarranted invasion of personal privacy," the court applies a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing takes place with a thumb on the scale favoring disclosure.

This balancing test has two steps. 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. If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. 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. According to the Arkansas Supreme Court, the public's interest is measured by the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties" or otherwise let citizens know "what their government is up to."

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

Finally, 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. Some items include dates of birth of public employees (Op. 2007-064), personal contact information (A.C.A. § 25-19-105(b)(13)), social security numbers (Ops. 2006-035, 2003-153), and medical information (Op. 2003-153). (Please see Opinion No. 2012-063 for a more complete list.)

Employee-evaluation exception

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But, as the Arkansas Supreme Court has recently held, 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless, among other things, the employee, whose records they are, was suspended or fired. In the present case, if the employee was neither suspended nor terminated, the threshold level-of-discipline element for the release of employee evaluation or job performance records has not been met. The custodian's decision to withhold the record summarizing the results of the investigation would therefore likely be consistent with the FOIA, in my opinion.

In conclusion, the records you have requested are clearly public records and, further, likely qualify as either personnel records or employee-evaluation records. The custodian's blanket denial is therefore in all likelihood inconsistent with the FOIA. The foregoing tests must be applied to the employee's personnel file, which means that every public record should be disclosed unless some specific exemption shields it from disclosure.

Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I hereby approve.

Sincerely,
DUSTIN McDANIEL
Attorney General
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