Can a Saline County personnel-records custodian withhold an investigative report on a former Circuit Clerk employee from a FOIA request when the employee was never suspended or terminated based on the report?

Plain-English summary

Christy Peterson, Director of Human Resources for Saline County, received an FOIA request for records in the personnel file of a former employee of the Circuit Clerk's office. The custodian had identified one record (an investigative report) that she believed was not subject to disclosure, and asked the AG to confirm her decision.

The AG agreed. The reasoning was a clean application of the four-element test for employee-evaluation records.

First, classify the record. The investigative report was an employee-evaluation record under the definition the Arkansas Supreme Court adopted in Thomas v. Hall (2012): 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. The investigative report on the Circuit Clerk employee fit that definition.

Second, apply the four-element test for releasing employee-evaluation records under § 25-19-105(c)(1):

1. The employee was suspended or terminated.
2. There was a final administrative resolution of the suspension/termination proceeding.
3. The records formed a basis for the suspension/termination decision.
4. The public has a compelling interest in disclosure.

All four elements must be met before an employee-evaluation record can be released. They are conjunctive, not alternative. And the first element (suspension or termination) is the threshold: if the employee was not suspended or terminated, the analysis stops there.

Custodian Peterson had not stated explicitly whether the Circuit Clerk employee was suspended or terminated, but the AG inferred from the record itself that no suspension or termination occurred. With the threshold element unmet, the FOIA required the record to be withheld. The custodian's decision was consistent with the FOIA.

The opinion is short because the case was simple. Once the record is classified as an employee evaluation and the suspension-or-termination element fails, the conclusion follows automatically. The AG did not need to reach the other three elements.

Currency note

This opinion was issued in 2015. 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

Arkansas FOIA's framework for employee records distinguishes between "personnel records" and "employee evaluation or job performance records."

Personnel records under § 25-19-105(b)(12) are disclosable unless the release would constitute a "clearly unwarranted invasion of personal privacy." That triggers the Young v. Rice balancing test, which usually favors disclosure.

Employee-evaluation records under § 25-19-105(c)(1) work the opposite way. The default is non-disclosure. The records become disclosable only if all four elements are met. The drafting choice reflects a policy judgment that internal performance evaluations and disciplinary investigations should be confidential unless the discipline reached a serious final outcome (suspension or termination) and the public has a compelling interest in seeing the underlying records.

The threshold element (suspension or termination) is sometimes called the "level of discipline" requirement. It is conjunctive with finality, basis, and compelling-interest, and is logically prior: if there is no suspension or termination, there is no decision for which the records formed a basis, and the test cannot be satisfied.

The Thomas v. Hall (2012) definition of employee-evaluation records is foundational. Records are evaluations if (1) the employer created them (or had them created by an agent), (2) they were created to evaluate the employee, and (3) they detail performance or lack of performance. Investigative reports about employee conduct typically satisfy all three prongs.

The AG's standard procedure under § 25-19-105(c)(3)(B)(i) is to review the custodian's classification of the records and decision on disclosure. The custodian provides the records; the AG reviews them; the AG opines on whether the decision is consistent with FOIA. The opinion does not bind the parties (the requester can still litigate), but it provides authoritative guidance.

Common questions

What was the investigative report about?
The opinion does not say. The custodian provided the document to the AG for confidential review, but the AG did not describe the contents in the public opinion. The AG opined on the legal framework's application without disclosing the underlying facts.

Could the report have been released if the employee had been disciplined less severely than suspension?
No. § 25-19-105(c)(1) sets the floor at "suspension or termination." A written reprimand, oral counseling, or other lesser discipline is not enough.

What if the employee was terminated, but for reasons unrelated to the investigation?
The third element requires that the records "formed a basis for the decision to suspend or terminate." If the records were not the basis, they cannot be released even if a termination occurred.

What if there was no compelling public interest?
Even with suspension or termination plus finality plus basis, the records remain exempt without a compelling public interest. The Watkins and Peltz factors for compelling-interest analysis include nature of the infraction, existence of a public controversy, and the employee's position.

Could the former employee themselves obtain the record?
Yes, under § 25-19-105(c)(2), the subject of personnel or employee-evaluation records can obtain copies of their own records even when those records are exempt from public disclosure.

Why is this opinion shorter than typical FOIA opinions?
Because the analysis hits a threshold stop. Once the AG confirmed the record was an employee-evaluation record and that no suspension or termination occurred, the conclusion followed automatically. There was no need to discuss the other three elements or the balancing test.

Source

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

Original opinion text

Opinion No. 2015-060
June 5, 2015

Christy Peterson, Director
Human Resources
Saline County Courthouse
200 No. Main, Room 112
Benton, Arkansas 72015

Dear Ms. Peterson:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act (the "FOIA"). The FOIA 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 as to the release of such records is consistent with the act.

Your letter indicates that you, as records custodian for the Saline County HR/Personnel Office, have received a FOIA request for records contained in the personnel file of a former employee of the Circuit Clerk's office. You state that you have preliminarily determined that one record, which you have provided for my review, is not subject to disclosure. You seek my opinion on that determination.

RESPONSE

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

DISCUSSION

A document must be disclosed in response to an FOIA request if three conditions are met: first, the FOIA request is directed to an entity subject to the act; second, the requested document constitutes a "public record"; and third, the document does not fall within an express exception to disclosure requirements.

The first element is clearly met in this case, inasmuch as the Saline County HR/Personnel Office is clearly a public entity.

With respect to the second element, the FOIA defines the term "public records" as follows:

"Public records" means 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.

Based upon my review of the record here at issue, I conclude that it clearly qualifies as a "public record" under this definition and must be disclosed unless some specific exception provides otherwise.

Under certain conditions, the FOIA exempts from disclosure two distinct types of employee-related records: "personnel records" and "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly. It is my conclusion that the relevant exemption in this case is the one for employee-evaluation records.

The FOIA does not define "employee evaluation or job performance records." However, the Arkansas Supreme Court has adopted this office's view that this 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.

Based upon my review of the requested document, I conclude that it constitutes an employee-evaluation record under this definition. Accordingly, it 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., relevance); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

Suspension or termination is thus a threshold requirement for the release of employee-evaluation records. Although you have not indicated whether the former employee was suspended or terminated, I gather from the face of the record at issue that there was no suspension or termination in this case. The FOIA therefore requires that the record be withheld from public disclosure.

Accordingly, it is my opinion that your decision is consistent with the FOIA.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh