Were a custodian's FOIA decisions to release written reprimands and promotion-related letters from a former employee's file consistent with Arkansas FOIA?

Plain-English summary

Attorney Mike Owens, representing a public employee, asked the AG to review a custodian's FOIA decision to release records of his client. The client had been suspended for disciplinary reasons in March 2014 and resigned shortly after. A FOIA requester asked for the client's personnel file, including "written reprimands, letters of caution, documents supporting a recommendation for suspension or dismissal, letters relating to promotions or demotions, and any resignation letter." The custodian decided to release a 22-page set of documents. Owens objected, citing privacy concerns, the absence of a "suspension or termination proceeding," and procedural irregularities.

AG Dustin McDaniel's three-part conclusion: (1) the custodian's ultimate decision to disclose was consistent with FOIA; (2) the custodian's intermediate classification decisions were only partly right; and (3) the manner of redaction was probably not consistent with FOIA.

Classification. The custodian had labeled all 22 pages as employee-evaluation records. The AG worked through the Bates-stamped documents and split them:

• Evaluation records: Record 0002 (provided it was created by the subject's supervisor); Records 0003, 0004-0005, 0007 (created at the employer's behest, with 0006, 0011-0013 as duplicates); Records 0008-0010, 0016, 0018 (created by the subject's supervisor to evaluate her).
• Personnel records: Record 0001 (a letter accepting the resignation, with no recital of grounds); Records 0014-0015 (receipts) and 0022 (records of the subject's conduct); Records 0019-0021 (records pertaining to the subject's conduct, with the handwriting on 0019 appearing to qualify as an evaluation record).
• Record 0017: unclassifiable on the record before the AG. Would be an evaluation record if created at the employer's behest; otherwise a personnel record.

The AG flagged a common custodian mistake: assuming a record becomes an evaluation record simply because it was later folded into a disciplinary investigation or formed the basis for discipline. Op. Att'y Gen. 2012-080 holds the opposite: a record's classification at creation is fixed.

Disclosure. Owens's main argument was that there had been no "suspension or termination proceeding," so the four-part test for evaluation records could not be satisfied. The custodian responded that the client was "placed on administrative leave, which was a suspension." That is a factual question. The custodian had concluded the leave was disciplinary; Owens had not offered reasons to think otherwise, and the records supported the custodian. The AG accepted the custodian's factual determination and held the four-part test could be met.

For the personnel records, the AG applied the Young v. Rice balancing test. Owens offered no reason or argument to support the claim that release would be a clearly unwarranted invasion of personal privacy. Reviewing the records independently, the AG concluded the privacy interests were minimal, the public interest in seeing how the custodian had handled the disciplinary matter was significant, and the disclosure was sound.

Redaction. The custodian had redacted some information from Records 0003 and 0007 (and duplicates) using White-Out. A.C.A. § 25-19-105(f)(3) requires that redactions show both the "amount" and "place" of what was removed. The surest way to comply is a black marker. White-Out hides the fact that a redaction occurred at all, in addition to hiding the content. The AG flagged this as a probable noncompliance. The substance of the redactions could not be evaluated because the AG had not seen unredacted copies; only the manner was at issue.

Procedural irregularity. Owens also argued that his client had not received timely notice of the custodian's decision to release. The AG found no harm: even assuming a notice defect, the client successfully invoked the AG-opinion review process under A.C.A. § 25-19-105(c)(3), and the records had not yet been disclosed.

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 does the classification matter if the ultimate disclosure is the same?
Because the tests differ. Personnel records get the Young v. Rice privacy balancing; evaluation records get the four-part test. A misclassified record might end up disclosed under one test when it should not have been under the other (or vice versa). The AG insisted on accurate classification even when the outcome was the same in this case.

Can a record's classification change later if it's used in a disciplinary investigation?
No. The classification is fixed at creation. Op. Att'y Gen. 2012-080 (relied on here) holds that a record's nature as personnel or evaluation depends on who created it and why, not on how it is later used. A pre-existing personnel record drawn into an investigation stays a personnel record.

Why is White-Out a problem for redactions?
Because A.C.A. § 25-19-105(f)(3) requires the redaction to show both "amount" and "place." White-Out hides the redaction itself, so the reader cannot see that anything was removed or how much. A black marker shows the redaction's existence and approximate size while hiding the content.

What's the difference between a personnel record and an evaluation record again at the time of this opinion?
Evaluation records were (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). Everything else about an individual employee held by the employer is a personnel record. Receipts, conduct records, and resignation letters that don't recite grounds are personnel records. Reprimands and disciplinary support documents are evaluation records.

Is administrative leave with pay a "suspension"?
Sometimes. The AG noted in this opinion and in 2014-095 that administrative leave is not a suspension when it is routine, with no loss of benefits, and no disciplinary character. It is a suspension when it carries disciplinary character. The custodian decides as a factfinder. Here, the custodian concluded the leave was disciplinary and the AG accepted that finding.

Could a custodian get the redaction wrong on substance even with the right method?
Yes. The opinion addresses only manner, not merits, of the redactions on Records 0003 and 0007 because the AG had not seen unredacted copies. A subsequent challenger could attack the substance of the redactions (whether the redacted content was actually exempt).

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the AG-opinion procedure. A.C.A. § 25-19-105(b)(12) carried the personnel-records exemption with privacy balancing. A.C.A. § 25-19-105(c)(1) carried the employee-evaluation-records exemption with the four-part test. A.C.A. § 25-19-105(f)(3) required redactions to show both amount and place.

Young v. Rice, 308 Ark. 593 (1992), supplied the two-step privacy balancing test. Stilley v. McBride, 332 Ark. 306 (1998), placed the burden on the records subject. Thomas v. Hall, 2012 Ark. 66, fixed the definition of evaluation records.

Op. Att'y Gen. 2012-019 held that a letter accepting a resignation without recital of grounds is a personnel record. Op. Att'y Gen. 2012-080 held that a record's classification is fixed at creation.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG-opinion procedure)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (evaluation records four-part test)
• A.C.A. § 25-19-105(f)(3) (redaction amount and place)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2012-019 (resignation acceptance letter as personnel record)
• Op. Att'y Gen. 2012-080 (classification fixed at creation)
• Op. Att'y Gen. 2008-065 (four-part test)

Source

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

Original opinion text

Opinion No. 2014-071
July 10, 2014

Mike Owens
105 SE 14th Street
Bentonville, Arkansas 72712

Dear Mr. Owens:

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, together with correspondence received from the custodian, indicate that someone has submitted an FOIA request for your client's "personnel file." Though I have not been provided with the actual FOIA request or its wording, I understand that the request specifically seeks, among other things, the following records related to your client: written reprimands, letters of caution, documents supporting a recommendation for suspension or dismissal, letters relating to promotions or demotions, and any resignation letter.

The information I have been presented with indicates that your client was suspended for disciplinary reasons in March 2014. Soon after suffering that suspension, your client resigned. The custodian intends to disclose a 22-page set of documents that, according to the custodian, formed a basis for the March 2014 suspension. Your client objects to the release of these documents. First, you say that you "believe that the disputed documents are exempt from release" because "such an action would constitute an unwarranted invasion of personal privacy." You do not offer any arguments to support this claim. Second, you say that "there was no suspension or termination proceeding, and as such, Ark. Code Ann. § 25-19-105(c)(1) does not provide a lawful basis for releasing the disputed documents." Third, you say that the records should be withheld from disclosure due to some procedural irregularities associated with the custodian's handling of the underlying FOIA request.

You ask whether, in light of my review of the disputed documents and the foregoing objections, the custodian's decision to release the documents is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. At the broadest level, custodians must make two decisions in this context: first, they must classify the documents as either personnel or employee-evaluation records; and, second, they must then apply the tests for the disclosure of that specific category of employment-related records. Having reviewed the records in dispute, together with correspondence from you and the custodian, it is my opinion (1) that the custodian's ultimate decision to disclose these records is consistent with the FOIA; (2) that the custodian's intermediary decisions regarding classification are only partly consistent with the FOIA; and (3) that the manner in which the custodian has redacted from certain records is probably inconsistent with the FOIA.

DISCUSSION

I will set out the general rules governing all FOIA requests, the general rules governing the classification and disclosure of personnel and employee-evaluation records, and then, with these standards in place, I will assess your objections to disclosure.

(The opinion then proceeds through standard FOIA disclosure prerequisites, the personnel-records exemption with Young v. Rice balancing, and the employee-evaluation-records exemption with the four-part test. For brevity, those sections track the established AG framework also recited in companion 2014 opinions.)

III. Application

We can now apply the foregoing to the disputed documents, which are Bates stamped for ease of reference. I will refer to these Bates numbers below.

A. The classification decision

The custodian seems to have classified all these records as employee-evaluation records. I say "seems to" because the custodian says that "[a]lternatively, if the records are viewed as personnel records," they should still be disclosed. You do not dispute the custodian's general determination that the records qualify as employee-evaluation documents.

Based on my review of the documents, I have determined (1) that most of the documents are employee-evaluation documents; (2) that some of the documents are personnel records that were later drawn into a disciplinary investigation; and (3) that I lack sufficient information to assess the classification of one record.

The following records are, in my opinion, employee-evaluation records:

• Record 0002, provided that (as appears to be the case) the record was created by the subject's supervisor;
• Records 0003, 0004-0005, and 0007 because other documents make clear that these documents were created at the employer's behest (records 0006 and 0011-0013 appear to be duplicates of these records); and
• Records 0008-0010, 0016, and 0018 because these were created by the subject's supervisor to evaluate her.

The following records are, in my opinion, personnel records:

• Record 0001 because this document, which is a letter accepting your client's resignation, does not detail any of the grounds for the resignation or its acceptance (this office has opined that such records are personnel records);
• Records 0014-0015 (receipts) and 0022 because these documents are records of your client's conduct; and
• Records 0019-0021 because these records clearly pertain to the conduct of your client (but the handwriting on record 0019 appears to qualify as an evaluation record).

Perhaps part of the reason why the custodian is unclear on how to categorize some of these records is due to a misunderstanding. This office has opined that a document that was not an employee-evaluation record when created cannot be transformed into one simply because it was later made part of a disciplinary investigation or because it formed the basis for a disciplinary action.

I lack sufficient information to classify record 0017. This record should be classified as an employee-evaluation record if it was created at the employer's behest. If not, then it is a personnel record. I have not been provided with any information about the record's creation, nor is such information apparent on the face of the document.

B. The disclosure decision

Now that the records have been classified, the next question is whether the FOIA requires the records to be withheld or disclosed. Your only specific objection to the release of the evaluation records is that "there was no suspension or termination proceeding." Thus, you essentially object to the disclosure because, you argue, your client was never suspended or terminated, which would mean that the first element for the disclosure of evaluation records is not met. But the custodian says that your client suffered the disciplinary action of being "placed on administrative leave, which was a suspension." Whether this leave was a disciplinary suspension is a question of fact. I have no way to look behind the custodian's determination that the leave was, in fact, a disciplinary suspension, and you do not offer any reasons to think that the leave was not disciplinary in nature. Further, the records offer some support for the custodian's statement. Therefore, based on the information available to me, the custodian's decision to disclose the evaluation records is, in my opinion, consistent with the FOIA.

Regarding the personnel records, you assert that the release of any personnel records would constitute an unwarranted invasion of your client's personal privacy. But you do not give any reason or argument to support that assertion. Further, based on a review of the records at issue, there is, in my opinion, no reason to think that the release of these personnel records would constitute a clearly unwarranted invasion of personal privacy. There is little to no privacy interest in the conduct recorded in these documents. And even if there were a greater than de minimus privacy interest in this conduct, there is a significant public interest in the documents because they shed a great deal of light on how the custodian has handled the matters discussed in the documents. Therefore, in my opinion, the decision to disclose these records is consistent with the FOIA.

As I noted above, I lack sufficient information to assess the classification of record 0017. If it is an evaluation record, then it should be disclosed for the same reasons that apply to the other evaluation records at issue here. Similarly, if it is a personnel record, then it must be disclosed for the same reasons that apply to the other personnel records at issue.

C. Redactions

I should note that the custodian has redacted some information on records 0003 and 0007 (and, of course, their duplicates). The propriety of redactions must be evaluated according to both the merits and the manner of the redaction. I cannot evaluate the merits of the redactions because I have not seen unredacted copies. But the manner of the redactions is problematic. When custodians make redactions, the FOIA requires that the redactions be made in such a way that one can see both the "amount" and "place" of the redaction. The surest way to comply with these requirements when redacting from paper documents is to use a black marker to redact the material. The manner of redaction at issue here, which appears to be White-Out, is not in compliance with the FOIA.

D. Summary

In summary, the custodian's ultimate decision to disclose these records is consistent with the FOIA. But the intermediary decisions regarding classification and manner of redaction are, in my opinion, not consistent with the FOIA.

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

Sincerely,
DUSTIN MCDANIEL
Attorney General
DM/RO:cyh