Can a city release a redacted record of disciplinary-interview conversations about a city supervisor who received a three-day suspension, over the supervisor's objection that witnesses will be identified?

Plain-English summary

Steve Glass, a Senior Engineer / City Planner with the City of Rogers, invoked his right under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG to review the City's decision to release a redacted record of "interview conversations" arising from an HR investigation that resulted in his three-day suspension. Glass made two arguments against disclosure:

1. He did not believe there was a "compelling public interest" in the record (the fourth prong of the § 25-19-105(c)(1) test).
2. He was concerned that disclosure would reveal the identities of employees who had reported the incidents to City HR in confidence.

AG Leslie Rutledge concluded the City's custodian had it right. The record was an employee-evaluation record under Thomas v. Hall (created by or at the behest of the employer, to evaluate the employee, detailing his conduct on the job). Three of the four conditions for release under § 25-19-105(c)(1) were undisputed: Glass was suspended, the proceeding had reached a final administrative resolution, and the record formed a basis for the suspension. Only the compelling-public-interest element was in dispute.

The custodian had concluded the element was met, citing Glass's supervisory position and the nature of the conduct. The AG signaled the relevant non-exhaustive factors from the Watkins & Peltz treatise: nature of the infraction (especially violations of public trust or gross incompetence), whether there is a public controversy related to the agency and its employees, and the employee's position within the agency (an interest is more likely when a high-level employee is involved than for rank-and-file workers). The AG saw "no reason to conclude that this is inconsistent with the legislative intent under Ark. Code Ann. § 25-19-105(c)(1)" and declined to second-guess the custodian's call.

On the witness-identity concern, the AG was direct: that concern does not justify withholding the entire evaluation record. The custodian can address the issue through targeted redactions, but cannot use it as a blanket basis to withhold a record that otherwise meets the four-part test. The AG also commented on the existing redactions of other employee names in the record. Without more information, the AG could not say whether those redactions were appropriately calibrated; the AG noted that a record disclosable as to one employee may contain content that is part of another employee's evaluation record and may need separate analysis.

Currency note

This opinion was issued in 2016. 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 an employee-evaluation record

Section 25-19-105(c)(1) sets a much tougher standard for evaluation records than the personnel-records exception. An evaluation record cannot be released unless every one of the following is true:

1. Level of discipline. The employee was suspended or terminated.
2. Finality. The administrative process resolving that suspension or termination has been completed.
3. Basis. The records formed a basis for the discipline decision.
4. Compelling public interest. The public has a compelling interest in disclosure.

If any single prong fails, the record stays closed. Glass conceded the first three by framing his objection around prong four.

What counts as "compelling public interest"

The FOIA does not define the phrase. The Arkansas Supreme Court has not given an exhaustive list. The AG followed the Watkins & Peltz treatise framework, which identifies three factors:

• Nature of the infraction, with particular concern about violations of public trust or gross incompetence.
• Existence of a public controversy related to the agency and its employees.
• Position of the employee within the agency (higher-level employees more easily meet the test).

The general public interest in seeing how government employees perform their jobs is not "compelling" by itself. Something specific has to anchor it. Here, the AG found that the custodian's reliance on Glass's supervisory position and the nature of the conduct gave the custodian a defensible basis for the conclusion. The AG's role under § 25-19-105(c)(3)(B) is to review consistency with the FOIA, not to substitute the AG's judgment for the custodian's on fact-specific calls.

Witness identity is not a global block

Glass's secondary argument was that other employees had reported him to HR in confidence and that disclosure would expose them. The AG distinguished between using that concern to withhold the whole record (not allowed) and using it to inform redaction decisions about specific witness-identifying content (potentially allowed, though the AG did not opine on which redactions were appropriate without more information).

This distinction matters in practice. The four-part test for evaluation records, once satisfied, requires disclosure. Witness concerns do not reopen the test. They feed into the separate question of which discrete pieces of information within the disclosable record should be redacted as not properly part of what the public needs to see.

Common questions

Q: I'm a public supervisor in Arkansas who got a short suspension. Can my employer release the investigation record under FOIA?
A: If the record is an employee-evaluation record under Thomas v. Hall, and the suspension is final, and the record formed a basis for the discipline, the only remaining question is whether there is a compelling public interest in disclosure. The custodian decides that initially. Supervisory rank and the nature of the conduct can both push toward "yes."

Q: My discipline was only a three-day suspension. Is that still enough to trigger the four-part test?
A: Yes. Section 25-19-105(c)(1) requires "a suspension or termination" without specifying minimum length. A three-day suspension counts.

Q: Witnesses reported me in confidence. Doesn't that protect the record from release?
A: No. Confidentiality concerns about witnesses do not block release of an evaluation record that meets the four-part test. They may justify targeted redactions of witness-identifying information within the record, but they are not a basis for withholding the entire record.

Q: What if the record also discusses other employees who were not disciplined?
A: The AG acknowledged this is a real issue. A record disclosable as to one employee may include content that is part of another employee's evaluation record (which has its own four-part test, possibly failing). The custodian has to apply the framework separately to each employee whose evaluation record is intertwined and redact accordingly. The AG did not opine on whether the specific redactions in this record were correctly done.

Q: Could the requester find out why they want the record?
A: Requester motive is irrelevant to FOIA analysis. The custodian decides on the record's status; the requester does not have to justify the request.

Citations and references

Statutes:

• A.C.A. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2015) (AG opinion procedure)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records exception)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (three-part definition of evaluation record)

Source

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

Official summary

Is the decision of the custodian of records to release the attached interview records in response to a Freedom of Information Act (FOIA) request consistent with the FOIA? The subject of the records objects to its release citing no compelling public interest in disclosure and a concern that releasing it would reveal the identities of those who reported the incidents (due to the nature of the conversations recorded). RESPONSE: It is my opinion, based on the information before me, that the custodian's decision is consistent with the FOIA. The custodian evidently has determined, based upon your supervisory position coupled with the nature of the conduct at issue, that there is a compelling public interest in disclosure of this evaluation record. I see no reason to conclude that this is inconsistent with the legislative intent under Ark. Code Ann. 25-19-105(c)(1). Nor is withholding the record justified based on a concern that the identity of those who reported the incidents may be revealed if the evaluation record is released. See Op. Att'y Gen. 2008-044.

Original opinion text

Opinion No. 2016-045
April 20, 2016
Steve R. Glass
Senior Engineer/City Planner
City of Rogers, Arkansas
301 W. Chestnut Street
Rogers, AR 72756
Dear Mr. Glass:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp.
2015). 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 the City of Rogers has decided to release a
record of several interview conversations, in response to a FOIA request. It is my
understanding that the record in question was created by or at the behest of your
employer to evaluate you. It is my further understanding that as a result of the
evaluation, you were suspended for three days and the record at issue was relied
upon to support the suspension decision. You have provided a copy of the record,
which has several redactions. You state that "the reason for the redaction is
because other employees are mentioned in the document, and they did not receive
a suspension or termination." You object to the release of the record, citing your
belief that there is no compelling public interest in the disclosure. You also
express concern that "if this document were released, due to the nature of the
conversations recorded, it would reveal the identity of individuals that reported the
incidents to the City's Human Resources Department in confidence, thereby
exposing them to risk."
You ask whether the custodian's decision to release the redacted record is
consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. It is my opinion, based on the information before me, that the custodian's
decision is 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
document is held by the City of Rogers, 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.
The document at issue 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 records 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.
I will focus only on the employee-evaluation exception which, given the
information before me, is the most relevant exception.
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. This office has consistently taken the position that any
records that were created at the behest of an employer and that detail the
performance or lack of performance of an employee with regard to a specific
incident or incidents are properly classified as employee evaluation or job
performance records.
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., relevance);
   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.
   II. Application.
   We can now apply the foregoing to the document at issue. As always, the first
   step in analyzing the employment-related records' disclosure is to classify them.
   The information before me indicates that the record in question constitutes your
   employee-evaluation record under the above definition. You object to its release
   because you believe there is no compelling public interest in disclosure (the last of
   the four elements in the above test), thus indicating that the first three elements for
   disclosure are met. However, the custodian evidently has determined, based upon
   your supervisory position coupled with the nature of the conduct at issue, that this
   part of the test is met and disclosure is required. Based on the information before
   me, I see no reason to conclude that this is inconsistent with the legislative intent
   under Ark. Code Ann. § 25-19-105(c)(1). I therefore conclude that the conditions
   for the release of the record as your employee-evaluation record have been met.
   With regard to your concern that the identity of individuals who reported the
   incidents will be revealed if the record is released (due to the nature of the
   conversations recorded), I must note that this concern does not justify withholding
   the employee-evaluation record where the test is met for the release of the latter
   record.
   In summary, based on the information before me, it is my opinion that the record
   you have submitted for my review is an employee-evaluation record and that the
   custodian's decision to disclose the record is consistent with the FOIA.
   Sincerely,
   LESLIE RUTLEDGE
   Attorney General