Under Arkansas FOIA, must a county disclose a former employee's settlement agreement and emails but withhold the termination letter when the termination was later vacated and the employee resigned by agreement?

Plain-English summary

George Spence, attorney for a county records custodian, asked the AG to review the custodian's split decision on a FOIA request seeking records of a former county employee. The employee had originally been terminated. That termination was later vacated during the administrative grievance process, and the parties reached a settlement under which the employee resigned. A FOIA requester then asked for the settlement agreement, the termination letter, and related documents and emails.

The custodian decided to disclose the settlement agreement and the related documents/emails, but to withhold the termination letter "due to the fact that the matter was settled with a resignation." AG Dustin McDaniel agreed with both halves of the decision.

The settlement agreement and related emails: personnel records, disclose. The AG analyzed these documents as personnel records (records about an individual employee that are not evaluation records). Personnel records are presumptively open under the Young v. Rice two-step privacy balancing test, with the thumb on the scale favoring disclosure. The custodian's conclusion that disclosure of these documents would not constitute a clearly unwarranted invasion of personal privacy was sound; the AG agreed.

The termination letter: employee-evaluation record, withhold. The AG agreed with the custodian's classification: a termination letter that recounts the grounds for the termination is an employee-evaluation record. Under A.C.A. § 25-19-105(c)(1) and the four-part test (Thomas v. Hall), evaluation records can only be released if the employee was suspended or terminated, the proceeding reached a final administrative resolution, the records formed a basis for that resolution, and a compelling public interest justifies disclosure. Here, the original termination was vacated during the grievance process. The termination never became administratively final. The "finality" prong of the four-part test was therefore unmet, and the termination letter had to be withheld regardless of any compelling public interest.

This opinion is notable for clarifying that a vacated termination resets the FOIA analysis. Even when an employee originally fired ends up leaving the agency, if the firing was withdrawn and replaced by a settlement-and-resignation, the disciplinary side of the evaluation-records test is reopened, the four-part test fails at the finality element, and the disciplinary documents stay sealed.

The opinion also previews (by listing them) the standard categories of information that must be redacted from any personnel record that is otherwise disclosable: dates of birth, social security numbers, medical information, undercover law enforcement identifiers, driver's license numbers, insurance coverage, tax/withholding information, payroll deductions, banking information, unlisted phone numbers, home addresses, personal email addresses, and marital/dependent status. Custodians applying the Young v. Rice balancing test still need to handle those mandatory redactions before releasing a record.

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 a vacated termination shield the termination letter from disclosure?
Because the four-part test for releasing employee-evaluation records requires "final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee." If the termination was vacated as part of an administrative settlement, there was no final administrative resolution of a termination, so the records that documented the (now-vacated) termination stay sealed.

Why is the settlement agreement disclosable when the termination letter isn't?
Because they fall into different FOIA categories. The settlement agreement is a personnel record (an agreement between the employer and employee that doesn't evaluate job performance). The termination letter is an evaluation record (it documents grounds for adverse action). Personnel records get the Young v. Rice test, which favors disclosure here. Evaluation records get the four-part test, which bars disclosure because the termination was vacated.

What if the employee says the settlement agreement is private?
Doesn't matter under FOIA. The privacy test for personnel records is objective. The records subject can't veto disclosure based on personal preference. The custodian assesses whether release would be a clearly unwarranted invasion of personal privacy as a matter of fact, not based on the subject's feelings.

What mandatory redactions apply to the disclosable documents?
The opinion lists: dates of birth (Op. 2007-064); social security numbers (Ops. 2006-035, 2003-153); medical information (Op. 2003-153); undercover law enforcement identifiers (A.C.A. § 25-19-105(b)(10)); driver's license numbers (Op. 2007-025); insurance coverage (Op. 2004-167); tax/withholding information (Ops. 2005-194, 2003-385); payroll deductions (Op. 98-126); banking information (Op. 2005-194); unlisted phone numbers (Op. 2005-114); home addresses of most public employees (A.C.A. § 25-19-105(b)(13)); personal email addresses (Op. 2004-225); and marital status/dependents information (Op. 2001-080).

Does this opinion limit a public employer's ability to settle disputes confidentially?
Practically, yes. If a public employer settles a termination dispute with a vacatur and a resignation, the underlying evaluation records (termination letter, investigation notes) stay confidential under FOIA. But the settlement agreement itself, including any payment terms, is generally disclosable as a personnel record. Negotiators should expect the financial side of any settlement to be public.

What if the records request had come before the termination was vacated?
The analysis might have differed. With a then-extant termination, the four-part test could potentially be satisfied (the AG addressed similar scenarios in companion opinions). But facts on the ground at the time of the request control. By the time the requester filed this FOIA request, the termination had been vacated.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the AG-opinion procedure.

A.C.A. § 25-19-103(5)(A) (Supp. 2013) defined "public record."

A.C.A. § 25-19-105(b)(12) carried the personnel-records exemption (with Young v. Rice balancing); § 25-19-105(c)(1) carried the employee-evaluation-records exemption (with the four-part test). § 25-19-105(b)(10) shielded undercover law enforcement identifiers; § 25-19-105(b)(13) shielded home addresses.

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

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013)
• A.C.A. § 25-19-103(5)(A) (Supp. 2013)
• A.C.A. § 25-19-105(b)(10) (undercover law enforcement)
• A.C.A. § 25-19-105(b)(12) (personnel records)
• A.C.A. § 25-19-105(b)(13) (home addresses)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (evaluation records four-part test)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2006-026 (termination letter as evaluation record)
• Op. Att'y Gen. 2008-065 (four-part test)
• Op. Att'y Gen. Nos. 2007-064, 2006-035, 2003-153, 2007-025, 2004-167, 2005-194, 2003-385, 98-126, 2005-114, 2004-225, 2001-080 (mandatory redaction categories)

Source

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

Original opinion text

Opinion No. 2014-084
August 1, 2014

George R. Spence
121 South Main Street
Bentonville, Arkansas 72712

Dear Mr. Spence:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 former employee of the county was initially terminated from employment, though that termination was later vacated and the employee resigned as part of an agreement reached during the administrative grievance process. Someone has now requested the following documents related to that former county employee: her "settlement agreement," a "termination letter," and "related documents and emails." You have determined (1) that the settlement agreement and the "related documents and emails" must be disclosed, and (2) that the termination letter must not be disclosed "due to the fact that the matter was settled with a resignation." You ask whether these decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the custodian's decisions are consistent with the FOIA.

DISCUSSION

I. General standards 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.

The first two elements appear met in this case. As for the first element, the documents are held by the county, 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 attached documents clearly qualify as public records. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

II. 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 record be disclosed.

a. 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.

The balancing test elaborated by Young v. Rice 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 minimus privacy interest. If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. 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.

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 that must be redacted include:

• dates of birth of public employees (Op. 2007-064);
• social security numbers (Ops. 2006-035, 2003-153);
• medical information (Op. 2003-153);
• any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));
• driver's license numbers (Op. 2007-025);
• insurance coverage (Op. 2004-167);
• tax information or withholding (Ops. 2005-194, 2003-385);
• payroll deductions (Op. 98-126);
• banking information (Op. 2005-194);
• unlisted telephone numbers (Op. 2005-114);
• home addresses of most public employees (A.C.A. § 25-19-105(b)(13));
• personal e-mail addresses (Op. 2004-225); and
• marital status of employees and information about dependents (Op. 2001-080).

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has recently adopted this office's view 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.

If a document meets the above definition, the document 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).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two 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 exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

III. Application.

We can now apply the foregoing to the attached documents. The first step, as noted above, is to categorize the three groups of documents. I take it that the custodian has categorized the settlement agreement and "related documents and emails" as personnel records. In my opinion, this decision is consistent with the FOIA. Further, the custodian seems to have categorized the termination letter as an employee-evaluation record. This is also, in my opinion, consistent with the FOIA where (as here) the termination letter recounts the grounds for the termination.

The next step is to apply the appropriate test for disclosure. The custodian has determined that the personnel records (i.e., the settlement agreement and the emails) are subject to disclosure because their disclosure would not constitute an unwarranted invasion of the former employee's personal privacy. I agree.

The custodian's decision to withhold the termination letter from disclosure is also consistent with the FOIA. As an employee-evaluation record, the termination letter cannot be disclosed unless the former employee suffered a termination that was administratively final. While the employee was initially terminated, the termination never became administratively final because it was vacated as part of the administrative-appeal process. Hence, the termination letter cannot be disclosed. Therefore, the custodian's decision is, in my opinion, consistent with the FOIA.

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

Attorney General
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