If an Arkansas teacher resigns mid-appeal of a suspension, are the suspension records still FOIA-disclosable?

Plain-English summary

Clayton Blackstock, attorney for a former Springdale School District teacher, asked the AG to find that the Springdale custodian's plan to release records about the teacher's suspension was inconsistent with FOIA. The superintendent had suspended the teacher with a recommendation for termination under A.C.A. § 6-17-1508. The teacher initiated an appeal to the school board but resigned before the board ruled.

Blackstock made three objections:

1. The suspension wasn't disciplinary because it was with pay.
2. The suspension never became final because the school board never ruled.
3. The records weren't responsive to the request (which sought "termination procedures").

The AG rejected all three:

1. Disciplinary suspension. A § 6-17-1508 suspension is disciplinary by definition because it arises from the same factual basis that supports the termination recommendation. The "with pay" feature doesn't change that. Suspensions can be disciplinary (cause-based) or non-disciplinary (paid administrative leave during investigation, like after a police officer discharges a firearm). § 6-17-1508 is clearly disciplinary. The text of A.C.A. § 6-17-1503(c) confirms it by listing "suspension" alongside "termination" and "other disciplinary action."

2. Final administrative resolution. When an employee abandons an internal appeal before getting a ruling, the underlying adverse action is final for FOIA purposes. The AG had been clear about this in Op. 2009-095. The reason is structural: if the rule were otherwise, every employee could short-circuit FOIA by filing an appeal and then withdrawing it the next day. The AG followed Watkins & Peltz's view that "final" in the FOIA refers to "the final decision-making step taken by" the employer "regardless of the bureaucratic level at which the decision is made."

3. Scope of the request. A.C.A. § 25-19-105(c)(3)(B)(i) doesn't give the AG authority to decide whether records are responsive to a request; that's a separate question for the custodian. But the AG noted that the request was for "termination procedures" and § 6-17-1508 makes immediate suspension an "integral part of termination procedures," so suspension records were properly identified as responsive.

The opinion contains a corrective footnote noting that an earlier version contained a typo identifying the custodian's decision incorrectly. The current text correctly approves the 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.

Background and statutory framework

The four-part test for releasing employee-evaluation records under A.C.A. § 25-19-105(c)(1):

1. Level of discipline: the employee was suspended or terminated.
2. Finality: there has been final administrative resolution.
3. Basis: the records formed the basis for the discipline.
4. Compelling interest: the public has a compelling interest in disclosure.

This opinion is a careful walkthrough of elements 1 and 2 in a tricky procedural posture: suspension with appeal abandoned via resignation.

The Teacher Fair Dismissal Act, A.C.A. § 6-17-1501 et seq., gives a teacher who is suspended or recommended for termination the right to a hearing before the school board. § 6-17-1508 specifically authorizes immediate suspension without notice or hearing when the superintendent has "reason to believe that cause exists for the termination of a teacher and that immediate suspension for the teacher is necessary." Because the predicate for a § 6-17-1508 suspension is suspected cause for termination, the suspension is inherently disciplinary.

The compelling-interest prong was not in dispute here; Blackstock did not contest elements 3 and 4. So the opinion focuses tightly on the threshold finality question.

Common questions

What's the difference between disciplinary suspension and paid administrative leave?

A disciplinary suspension arises from the employer's belief that the employee did something wrong. A non-disciplinary or "administrative" suspension (often called "paid administrative leave") is initiated without regard to whether the employee did anything wrong; it's a pause in duty during an investigation that could later result in discipline or commendation. Police officers commonly go on paid administrative leave after using force. The key marker isn't the paycheck; it's whether the employer thinks the employee broke a rule.

Could a teacher win this argument in court?

A circuit court is not bound by the AG's opinion. But the structural argument is strong: allowing employees to escape disclosure by abandoning appeals would gut the evaluation-records framework. Most courts would likely follow the AG's reasoning. Blackstock's better play was probably the responsiveness argument, but the AG explained why that doesn't bar the records here.

What about a teacher who resigns before even appealing?

That's an easier case for finality. If the teacher never starts an appeal, there's no later step that could overturn the suspension. The suspension is final the moment the resignation is accepted (or earlier, depending on the school district's procedure). The records become disclosable subject to the compelling-interest test.

Why does the suspension being "with pay" not change the analysis?

The "with pay" feature affects the financial sting of the suspension. It does not affect whether the suspension was prompted by misconduct, which is what makes it disciplinary. A paid disciplinary suspension is still discipline. A useful comparison: a school employee on paid administrative leave after a single complaint with no superintendent finding of cause would be non-disciplinary. A teacher on paid suspension because the superintendent has decided cause exists for termination is disciplinary.

Could the school board have overturned the suspension if it had ruled?

Yes, in theory. The board could have found that the superintendent's basis for suspicion was inadequate, that the procedures were not followed, or that the underlying conduct didn't warrant the discipline imposed. But the teacher resigned before any such ruling. The FOIA framework treats the suspension as a freestanding action that became final at the highest level reached.

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. 2014-110
October 2, 2014

Mr. Clayton Blackstock
Mitchell Blackstock Ivers Sneddon, PLLC
1010 West Third Street
Little Rock, Arkansas 72201

Dear Mr. Blackstock:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the records, 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 and attachments indicate that someone has submitted an FOIA request for "any documentation or correspondence, including e-mail, regarding termination procedures that took place under the Springdale School District for [your client] . . . ." The district superintendent (pursuant to A.C.A. §§ 6-17-1507 and -1508) notified your client in writing that he was immediately suspended and recommended for termination. You say that your client made a timely appeal to the board for a hearing on the adverse employment action. But your client resigned before the board was able to take any action.

The custodian has determined that the records at issue constitute employee-evaluation records and that the test for the disclosure of such records has been met. You appear to give three reasons for your objection to the custodian's decision to disclose the letter of suspension and recommendation for termination. First, though you grant that your client was suspended, you seem to argue that the suspension was not disciplinary in nature. Second, you argue that the suspension never became final because the school board never ruled on your client's appeal after he abandoned it. Third, you argue that records related to the suspension are not encompassed in the language of the underlying FOIA requester.

In light of these objections, you ask whether the custodian's decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Not having seen the records at issue, I cannot opine about the disclosure of any specific record. But I can address whether your objections show that the custodian's release decision is inconsistent with the FOIA. It is my opinion that the custodian has properly classified the superintendent's written notice of suspension as an employee-evaluation record and that your client clearly suffered a disciplinary suspension that became final when he abandoned his appeal by resigning. And given the nature of disciplinary action under A.C.A. § 6-17-1508, the custodian has properly construed the FOIA request as encompassing documents related to the suspension. Therefore, I am not persuaded that the custodian's decision is inconsistent with the FOIA.

DISCUSSION

I. General Rules Governing Disclosure

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. There is no question that the first two elements are met in this case. Thus, I will only analyze the final element: whether there are any exceptions that shield the documents from disclosure.

a. Exceptions to Disclosure

Under certain conditions, the FOIA exempts two groups of 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 the record be disclosed.

b. Employee-Evaluation Records

Because the records at issue have been classified as "employee evaluation or job performance records," and because that classification is uncontested, I will only focus on that exception. While the FOIA does not define the term "employee evaluation or job performance records," the Arkansas Supreme Court has held that 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.

The custodian has determined that records in dispute qualify as the former employee's employee-evaluation records. Not having seen the records, I cannot say whether that decision is correct. But I will assume, for the foregoing reasons, that it is.

Having settled the question whether the records meet the definition of an employee evaluation record, we must move to the question whether the FOIA requires that the record be withheld from disclosure. The FOIA states that employee evaluation records cannot be released unless all the following elements have been 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).

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

Application

We are now in a position to apply the elements of the foregoing test to the type of facts as they have been conveyed to me.

You make three objections to the custodian's decision. First, you seem to make a two-pronged argument that your client did not suffer the kind of suspension that would satisfy Elements 1 and 2, above. Your arguments to support this objection incorrectly collapse Elements 1 and 2, above. The clearest way to address your objection is to simply move sequentially through the four steps.

The first question is whether your client suffered a disciplinary suspension. He clearly did. For purposes of the FOIA, suspensions can be classified as disciplinary or non-disciplinary (the latter is sometimes called "administrative leave"). A suspension is non-disciplinary when it occurs as a result of a routine, departmental policy that is initiated without any regard for the propriety of the employee's conduct. For example, it is common for police officers to be suspended with pay after discharging a firearm. During the period of this non-disciplinary suspension, the police department investigates the circumstances. The investigation could result in some kind of disciplinary action. Or it might result in commendation. The key factor is that a non-disciplinary suspension is initiated without regard to whether the employee's conduct fell below expectations. In contrast, a disciplinary suspension is always initiated precisely because the employee's conduct allegedly fell below expectations.

Here, the custodian says your client was suspended, and you concede that your client was "technically suspended." So the critical question for purposes of Element 1 is whether the suspension was disciplinary (thus meeting the element). Suspensions under A.C.A. § 6-17-1508 are clearly disciplinary in nature: "Whenever a superintendent has reason to believe that cause exists for the termination of a teacher and that immediate suspension for the teacher is necessary, the superintendent may suspend the teacher without notice or a hearing." Under section -1508, the suspension arises from the same state of affairs that, in the superintendent's mind, justifies the termination recommendation. An action under section -1508 is clearly disciplinary in nature.

Another section of the Teacher Fair Dismissal Act refers to suspension as being a disciplinary act. See A.C.A. § 6-17-1503(c) ("A nonrenewal, termination, suspension, or other disciplinary action . . . shall be void unless the school district substantially complies with all provisions of this subchapter . . . .").

The only basis for your claim that the suspension was not disciplinary is that your client continued to be paid:

"[H]e continued to be paid, and thus lost no benefit of employment. Without any indicia of adverse action, this type of suspension is not the type considered to be relevant to disclosures of [employee-evaluation records] under the FOIA."

This view of the matter is deficient for two reasons. First, it incorrectly identifies the dispositive fact. The fact that the suspension was with pay, though relevant in some cases, is not dispositive. Rather, the critical question is whether the suspension was due to performance that failed to meet performance criteria or policies. Second, the argument fails to acknowledge that a suspension under A.C.A. § 6-17-1508 is itself "indicia of adverse action."

Therefore, in my opinion, and contrary to your objection, Element 1 is met. Your client clearly suffered a disciplinary suspension.

The next question is whether that disciplinary suspension ever became final. It clearly did. This office has consistently said that when an employee abandons an internal-appeals process before obtaining a ruling, the underlying adverse action is final for purposes of the FOIA. The manner in which the employee abandoned the appeal, whether by withdrawing the appeal or by resigning, as in this case, is irrelevant. If the rule were otherwise, then an employee could render every adverse employment action non-final (and thus prevent the release of evaluation records) by simply initiating and then, a day later, terminating an internal-appeals process. This office, together with two scholarly commentators on the FOIA, have long opined that when the FOIA uses the term "final," it refers to the "final decision-making step taken by" the employer "regardless of the bureaucratic level at which the decision is made."

You argue that the suspension never became final because the school board never had a chance to rule on it. But this is irrelevant. The lack of a school-board ruling, by itself, does not render suspensions non-final because, if it did, then every suspension that was not appealed to the board would also be non-final. Further, this office has already addressed this precise question in the area of Teacher Fair Dismissal. In Opinion No. 2009-095, I opined on a scenario in which a teacher was suspended, initiated an appeal to the school board, and then abandoned the appeal before a ruling. I said that these facts indicated that, "for purposes of the FOIA, the initial suspension decision is 'final' because your administrative remedies are exhausted and the board did not take action to overturn the suspension." Therefore, in my opinion, and contrary to your objection, Element 2 is met. Your client's suspension became final when he resigned.

The custodian has determined that Elements 3 and 4 are satisfied, and you do not contest those determinations.

Therefore, Elements 1 through 4 being met, it is my opinion that the custodian's decision is consistent with the FOIA.

Your final objection seems to be that the custodian has gathered records that are not responsive to the request. The scope of my review under section 25-19-105(c)(3)(B)(i) does not extend to determining whether a custodian has properly identified responsive documents. I will nevertheless note that the FOIA request in this instance seeks records "regarding termination procedures," and that it is apparent from A.C.A. § 6-17-1508 that an immediate suspension is an integral part of termination procedures. Accordingly, to the extent the custodian has identified records relating to the suspension as falling within the scope of the FOIA request, that decision appears proper.

In summary, based on the information before me, it is my opinion that the custodian has correctly classified the records as employee-evaluation records and correctly decided to disclose the records.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh

[Note: An earlier version of this opinion contained a typo in the final paragraph that incorrectly identified the custodian's decision. That typo has been corrected.]