Can a city withhold internal-investigation records about a supervisor where the supervisor was investigated but neither suspended nor terminated, even when the complainant herself requests them?

Plain-English summary

Sharre Brooks, Labor and Employee Relations Manager for the City of Little Rock, asked the AG to bless her decision to deny a FOIA request. A public employee had filed a complaint against a superior. The City conducted an internal investigation, generating ten distinct records: audio recordings of the complainant, witnesses, and the person complained against; written notes of two interviews; scheduling notes and interview questions for the person complained against; and complaint-disposition letters to the complainant, the person complained against, and that person's supervisor. The complainant (who is also the FOIA requester) asked for the entire file.

Brooks wanted to withhold seven of the ten items (numbers 2, 3, 5, 6, 7, 9, and 10) as employee-evaluation records of the person complained against. Because that person had not been suspended or terminated, the four-part FOIA test for releasing evaluation records would fail at element one. Brooks released the other three items (the recording of the complainant's interview, the complainant's interview notes, and the disposition letter sent to the complainant), which the AG opinion does not analyze in depth.

AG Dustin McDaniel agreed with the withholding decision. The withheld documents were created by or at the behest of the employer for the purpose of evaluating an employee (the supervisor), placing them squarely inside the employee-evaluation records exemption. With no suspension or termination, the threshold disclosure trigger was never met, and the records had to stay sealed.

This opinion also makes clear that the identity of the requester does not change the analysis. The fact that the complainant was the one seeking the records does not unlock evaluation records that would otherwise be off limits. The four-part test runs against the substance of the records and the employer's discipline outcome, not against any particular requester's interests.

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

Why are interview recordings and disposition letters about the person complained against treated as that person's evaluation records?
Because the test focuses on who created the records and why. Records created by or at the employer's behest to evaluate an employee (here, the supervisor against whom the complaint was lodged) are evaluation records under Thomas v. Hall. Interview recordings of witnesses asked to describe the supervisor's conduct, and interview questions prepared for the supervisor herself, were all generated to evaluate her. The complainant's own interview recording (item 1 in this opinion) sits in a different category because it documents the complainant, not the supervisor.

Does it matter that the complainant is the one filing the FOIA request?
No. FOIA treats requester identity as irrelevant under the four-part evaluation-records test. Some Arkansas cases consider requester motive when assessing objective public interest in close personnel-records cases, but the four-part evaluation-records test has no such window.

Why was the complainant given some of the records but not all?
The complainant's own interview recording (item 1), her own interview notes (item 4), and the disposition letter sent to her (item 8) likely qualify as her records, not as employee-evaluation records of the supervisor. Disclosing them to her does not raise the same problem the supervisor's evaluation records do.

What if the investigation later concludes with a suspension or termination?
Then the four-part test could move forward, with the records remaining sealed unless the records formed a basis for the discipline decision, the discipline was finalized, and there was a compelling public interest in disclosure. Each new prong is its own analytical hurdle.

Could a compelling-public-interest argument unlock these records?
Only if the first three prongs of the four-part test were met. Compelling public interest does not, on its own, override the requirement of an actual suspension or termination. In this fact pattern, neither happened, so the question never reaches the fourth prong.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the custodian, requester, or record subject to seek an AG opinion on FOIA release decisions.

A.C.A. § 25-19-105(c)(1) (Supp. 2013) set the four-part test for employee-evaluation records: (1) the employee was suspended or terminated; (2) final administrative resolution; (3) the records formed a basis for the discipline decision; (4) compelling public interest.

The opinion implicitly relies on Thomas v. Hall, 2012 Ark. 66 (the Arkansas Supreme Court's adoption of the "created by or at the behest of the employer" definition) and on the line of AG opinions classifying internal-investigation records of an employee's conduct as evaluation records of that employee.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG-opinion procedure)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (four-part test for evaluation records)
• Op. Att'y Gen. 2008-065 (foundational statement of four-part test)

Source

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

Original opinion text

Opinion No. 2014-093
August 19, 2014

Sharre A. Brooks
Labor and Employee Relations Manager
City of Little Rock
500 W. Markham, Suite 130W
Little Rock, Arkansas 72201-1428

Dear Ms. Brooks:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian, 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.

Your correspondence indicates that a public employee filed a complaint against a superior. The complaint led to an internal investigation that generated the following records:

1. A digital recording of an interview with the complainant/FOIA requester;
2. A digital recording of interviews with witnesses;
3. A digital recording of an interview with the person complained against;
4. Written notes from the interview with the complainant;
5. Written notes from the interview with one witness;
6. Notes related to scheduling the interview with the person complained against;
7. Written interview questions for the person complained against;
8. A complaint disposition letter that was already sent to the complainant;
9. A complaint disposition letter that was already sent to the person complained against; and
10. A complaint disposition memo that was sent to the supervisor of the person complained against.

The complainant has requested the file that contains the foregoing records. You ask about items 2, 3, 5, 6, 7, 9 and 10, which you classify as employee-evaluation records of the person complained against that are exempt from disclosure because they did not form the basis for a termination or suspension. Therefore, you have decided not to disclose these documents, and you ask whether that decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen the records at issue, I cannot opine about any specific document. But I can say that after reviewing the facts as you have conveyed them, together with the brief description of the documents, I believe your decisions are consistent with the FOIA.

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 require the document to be withheld.

These documents were all generated as part of an internal investigation conducted by the City. Therefore, elements one and two are clearly met. So the only remaining question is whether any exceptions require the documents be withheld.

The documents you intend to withhold are properly classified as "employee-evaluation records." A record qualifies for this classification when it was (1) created by or at the behest of (2) the employer (3) to evaluate an employee. The documents you intend to withhold were created by or at the behest of the employer to evaluate the employee complained against. Accordingly, these records cannot be disclosed unless all the following elements are 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., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

You indicate that the employee complained against was not suspended or terminated based on the facts reflected in the records at issue here. Therefore, the first element (above) is not met, which means that the records cannot be disclosed.

In summary, based on the limited information available to me, I believe the custodian has properly classified the records at issue and has properly determined that the records cannot be disclosed.

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