Can an Arkansas city withhold witness statements from an open internal harassment investigation under FOIA, when no suspension or termination has occurred yet?

Plain-English summary

A FOIA requester asked the City of Little Rock for "copies of all statements from the investigation" of a specific internal harassment complaint. Labor and Employee Relations Manager Shella Atlas, acting as records custodian, decided the requested statements were employee-evaluation records that could not yet be released because the investigation had not been completed. She asked the Arkansas AG to confirm.

AG Leslie Rutledge agreed. Witness statements taken during an internal investigation of an employee complaint are employee-evaluation records under the Thomas v. Hall test: they are created by or at the behest of the employer, to evaluate the employee, and detail the employee's performance or lack of performance. To release such records under Arkansas FOIA, a custodian needs all four of: suspension or termination, final administrative resolution, the records as the basis for that decision, and a compelling public interest. With the investigation still open, prongs one through three could not yet be satisfied, so the records had to stay closed.

The opinion includes an important footnote: the analysis above governs disclosure to the public. Under § 25-19-105(c)(2), an employee who is the subject of personnel or evaluation records can still get them even when the public cannot. So if the requester was the subject of the statements, the custodian needed to separately analyze that pathway.

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.

The Arkansas FOIA framework for personnel and evaluation records has been the target of legislative attention since 2016, so check the current text of § 25-19-105 before applying these rules to a present-day investigation.

Background and statutory framework

Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., creates a strong presumption that public records are open. A document must be released if it is held by an entity subject to FOIA, qualifies as a public record, and no specific exception applies.

Two exceptions matter for anything in a personnel file:

Personnel-records exception (§ 25-19-105(b)(12)). Open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under Young v. Rice's two-step balancing test (thumb on the scale for disclosure).

Employee-evaluation-records exception (§ 25-19-105(c)(1)). Closed unless all four of these are true: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed the basis for the discipline, and (4) there is a compelling public interest in disclosure.

Why open-investigation statements are evaluation records

Under Thomas v. Hall, 2012 Ark. 66, evaluation records are 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 Court expressly said this includes records generated while investigating allegations of employee misconduct that detail the underlying incidents. The AG noted that this category specifically includes transcripts of internal investigations and witness statements.

A practical implication: witness statements gathered for an internal investigation start their life as closed evaluation records. They become releasable only if (and after) the investigation reaches a discipline outcome serious enough to meet all four prongs of the test.

The subject-of-record carveout

§ 25-19-105(c)(2) creates a separate access path for the person about whom the records are maintained. Even if the public cannot see a personnel or evaluation record, the subject employee usually can. The AG flagged this because if the FOIA requester happened to be a subject of the witness statements (whether the complainant or the accused), the custodian had to make a separate factual determination about that requester's right of access.

Common questions

Q: Can my city release internal investigation witness statements while the investigation is still open?
A: No, generally. Under this opinion, those statements are evaluation records, and the four-prong test for release requires (among other things) a suspension or termination that has reached final administrative resolution. While the investigation is open, that condition cannot be satisfied.

Q: What if the investigation closes with no discipline at all?
A: If no suspension or termination results, the four-prong test for public disclosure of those evaluation records is still not met, even after the investigation concludes. The records remain closed to public requests, though the subject employee may still have access under § 25-19-105(c)(2).

Q: What if discipline does happen, but it is less than suspension or termination (a reprimand, for example)?
A: A reprimand alone does not satisfy prong one. The statute reads "suspension or termination," and the AG has consistently applied that wording strictly.

Q: Am I the subject of an investigation entitled to see the statements about me?
A: Probably yes, under § 25-19-105(c)(2), but that depends on a factual determination by the custodian about whether the records "are maintained about" you. If you are denied access, you can seek your own AG opinion or pursue a FOIA action in circuit court.

Q: Does the Whistle-Blower Act change anything?
A: The AG flagged the Arkansas Whistle-Blower Act (Ark. Code Ann. § 21-1-601 et seq.) as potentially relevant for a different but related set of disclosure issues, while expressly noting it falls outside the AG's FOIA-only review jurisdiction. A custodian or litigant should consult local counsel.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(c)(1), employee-evaluation-records exception
• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exception
• Ark. Code Ann. § 25-19-105(c)(2), subject-of-record access
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG-opinion review process
• Ark. Code Ann. § 25-19-103(7)(A), definition of "public record"

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of evaluation records
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), personnel-records balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), burden on party resisting disclosure

Source

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

Original opinion text

Opinion No. 2016-111
October 31, 2016
Shella Atlas
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Labor and Employee Relations Manager
City of Little Rock Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-4496
Dear Ms. Atlas:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as custodian of the records, is based
on Ark. Code Ann. § 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 a FOIA request has been made to the City of
Little Rock for "copies of all statements from the investigation" of a particular
"internal harassment complaint." As the custodian, you have determined that the
requested documents are employee-evaluation records that are not releasable at
this time because the investigation has not been completed. You have provided
the records for my review and have asked whether your decision to withhold them
is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. In my opinion, your decision is consistent with the FOIA. The statements
taken during the internal investigation are properly classified as employee-
evaluation records because they were generated by or at the behest of an employer
in the course of investigating a complaint against an employee. Suspension or
termination is a threshold requirement for the release of such records. Because
you state that the investigation is not yet complete, I assume that there has been no
final administrative resolution resulting in suspension or termination of any
personnel. If this is accurate, you have correctly determined that the records are
not releasable at this time.

(In reaching this conclusion, it is my assumption, based on the face of the statements at issue, that the records were not created for the purpose, in whole or in part, of evaluating the person who has submitted the FOIA request. However, you should be aware of a section of the FOIA, Ark. Code Ann. § 25-19-105(c)(2), that makes personnel or evaluation records that are otherwise exempt from disclosure (to the public) available to "the person about whom the records are maintained." You, as custodian, must make the factual determination whether the statements in this case are also evaluation records of the requester, such that the requester is entitled to access under this Code section.)

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 City of Little Rock, 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.

In my opinion, the records at issue are public records under this definition.
Accordingly, they 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 minimis
privacy interest. If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis 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:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. 2001-080);
• 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 (Ark. Code Ann. § 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); and
• Payroll deductions (Op. 98-126); banking information (Op. 2005-194).

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. More specific to the request at hand, it includes
transcripts of internal investigations, including witness statements.

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.

As noted above, the first step in analyzing the records' disclosure is to classify
them. According to my review, the records requested are statements taken during
the course of the internal investigation. As such, in my opinion, they are properly
classified as employee-evaluation records. Your decision in this respect is
therefore consistent with the FOIA.

As explained above, suspension or termination is a threshold requirement for the
release of evaluation records. You have stated that the internal investigation is not
yet complete in this case. I thus assume for purposes of this opinion that there has
been no final administrative resolution resulting in suspension or termination of
any personnel. It is therefore my opinion that you have correctly decided that the
records are not releasable at this time.

Sincerely,

LESLIE RUTLEDGE
Attorney General