If I'm the subject of a Little Rock internal investigation, am I entitled to the investigation file under Arkansas FOIA?

Plain-English summary

A Little Rock police employee filed a FOIA request for all email, mail, text messages, and other correspondence involving "any aspect" of an internal Little Rock harassment investigation. The City's labor and employee relations manager, Shella Atlas Evans, decided the documents were employee-evaluation records and, because no suspension or termination had occurred, were not subject to release. She asked the AG to confirm.

This time, the AG disagreed in part. The AG explained that the FOIA requester was apparently the subject of the records, and a different FOIA provision, § 25-19-105(c)(2), gives the subject of personnel or evaluation records access even when the public does not. So the City's decision to withhold the file from this requester was inconsistent with FOIA, except for portions of the investigative file that exclusively concerned another employee.

The AG went through the documents (which Atlas Evans had attached and Bates-stamped) and identified specific paragraphs and sentences that pertained only to a separate employee under investigation. Those portions had to stay redacted (because the four-prong evaluation-records test for public disclosure was not met, and they were not "about" the requester). The rest of the file had to be turned over to the requester under the subject-access provision.

The AG also flagged a separate body of law, the Arkansas Whistle-Blower Act (Ark. Code Ann. § 21-1-601 et seq.), as potentially relevant but outside the FOIA-only review jurisdiction.

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 subject-access pathway under § 25-19-105(c)(2) and the related notice requirements in § 25-19-105(c)(3)(A) have been refined by later statutory amendments and AG opinions. A custodian today should re-verify the current text and review recent AG opinions on mixed records.

Background and statutory framework

Arkansas FOIA divides personnel-related records into two mutually exclusive groups:

Personnel records (§ 25-19-105(b)(12)). Open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test.

Employee evaluation or job performance records (§ 25-19-105(c)(1)). Created by or at the behest of the employer to evaluate the employee and detailing performance or lack of performance (Thomas v. Hall, 2012 Ark. 66). Closed to the public unless all four prongs are met: suspension or termination, final administrative resolution, the records as the basis for the discipline, and a compelling public interest.

The mixed-records concept

Some records do not fit cleanly into a single category. The AG references a body of prior opinions (Ops. 2015-129, 2015-057) recognizing "mixed records": records that may simultaneously be (1) more than one person's evaluation, (2) at least one person's evaluation and at least one person's personnel record, or (3) more than one person's personnel record. A custodian dealing with a mixed record has to sort each portion into the correct category and apply each category's rules.

The subject-access pathway in § 25-19-105(c)(2)

Buried in the personnel/evaluation exemption framework is a critical employee-rights provision: "[a]ny personnel or evaluation records exempt from disclosure . . . shall nonetheless be made available to the person about whom the records are maintained." In other words, the subject of the records can get them, even when the public cannot.

That is the core of this opinion: the custodian was applying the public-disclosure test (four-prong evaluation test) to a subject-access request. The right framework was § 25-19-105(c)(2), which grants the subject access subject to limited carveouts for portions exclusively about other employees.

Specific redactions the AG identified

Working through the Bates-numbered file the custodian had attached, the AG specified the following redactions for the portions that pertained exclusively to a different employee under investigation:

• Bates 014: the final full paragraph.
• Bates 015, in the paragraph immediately following the first italicized subheading: the first, second, seventh, and 13th sentences; also the final full paragraph.
• Bates 016: in the first paragraph, the first six sentences and the final three sentences; in the second paragraph, the first sentence; in the third paragraph, sentences two through five.
• Bates 027 in its entirety.

For documents at Bates 020 through 022, the AG could not classify them from their face. If they are evaluation records, the same redaction approach applies (release to the subject under (c)(2), redact other-employee evaluation portions). If they are personnel records, they go to the requester in full because the personnel records of another employee mixed in do not, in the AG's view, create a clearly unwarranted invasion of privacy under Young v. Rice.

The notice trap for custodians

The opinion also reminds custodians that under § 25-19-105(c)(3)(A), the custodian must notify the subject of personnel or evaluation records of the decision about disclosure. Some of the attached file portions were also evaluation records of other employees. If those subjects had not been notified that records about them were being considered for release, the custodian had to deal with that separately.

Common questions

Q: I am under investigation at work. Can I get the investigation file?
A: Under this opinion, yes, generally, for the portions that are about you. Section 25-19-105(c)(2) gives you a subject-access right even when the file would otherwise be closed to the public. Portions that are exclusively about other employees can be redacted.

Q: My employer says the investigation is ongoing, so nothing is releasable. Is that right?
A: For the public, that is correct under § 25-19-105(c)(1): the four-prong test cannot be met until there is a final administrative resolution of a suspension or termination. But for you as the subject, § 25-19-105(c)(2) is a separate path that the open-investigation status does not block.

Q: What about co-workers who provided statements about me?
A: Their statements concerning your conduct are part of the records about you and are accessible to you under (c)(2). Statements that exclusively concern a different employee under investigation are not.

Q: What is a "mixed record"?
A: A record that contains both your personnel/evaluation information and another employee's. The custodian must do paragraph-by-paragraph or sentence-by-sentence sorting and apply the correct release rule to each portion.

Q: How does the Whistle-Blower Act fit in?
A: The AG flagged Ark. Code Ann. § 21-1-601 et seq. (especially § 21-1-607) as potentially relevant but expressly outside the FOIA-only review jurisdiction. If retaliation or whistleblower concerns are in play, get separate legal advice.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(c)(2), subject-access to otherwise-exempt records
• Ark. Code Ann. § 25-19-105(c)(1), evaluation-records four-prong test
• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exemption
• Ark. Code Ann. § 25-19-105(c)(3)(A), subject-notification requirement
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG-opinion review process
• Ark. Code Ann. § 21-1-601 et seq., Arkansas Whistle-Blower Act

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of evaluation records and mixed 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

Related AG opinions on mixed records:

• Op. Att'y Gen. 2015-129
• Op. Att'y Gen. 2015-057
• Op. Att'y Gen. 2002-326 (employee-instigated complaint records)

Source

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

Original opinion text

Opinion No. 2016-112
October 28, 2016
Ms. Shella Atlas Evans
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. Evans:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the 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 someone within the Little Rock Police
Department has requested documents under the FOIA relating to an internal City
of Little Rock complaint and subsequent investigation. You have attached several
documents to your request for my opinion that you believe are responsive to the
FOIA request. You state that the records are, in your opinion, employee-
evaluation records, but are ones that did not form the basis for a suspension or
termination of an employee. You have asked for guidance regarding the records'
release. Although you have not explicitly said whether you, as custodian, have
decided to release the records, I take it from your statement that there was no
suspension or termination decision that you have determined the records are not
subject to disclosure under the test for the release of employee evaluation records.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Based on the face of the records and the limited facts before me, it is my
opinion that your decision is in part inconsistent with the FOIA. With the
exception of certain portions of the investigative file that pertain exclusively to
another employee and are determined as a factual matter to be the other
employee's evaluation record, the records in question are either the personnel or
evaluation records of the employee who has made the records request under the
FOIA. As such, with the exception of any evaluations of the other employee, the
records must be disclosed to the requestor pursuant to Ark. Code Ann. § 25-19-
105(c)(2). This portion of the FOIA states that "[a]ny personnel or evaluation
records exempt from disclosure . . . shall nonetheless be made available to the
person about whom the records are maintained . . . ."

(Another body of law, the Arkansas Whistle-Blower Act Ark. Code Ann. § 21-1-601 et seq. (Repl. 2004 and Supp. 2015), could possibly come into play in connection with the disclosure of the records at issue. See id. at § 21-1-607 (Supp. 2015). This other law is outside the scope of my review under the FOIA, which only extends to the applicability of the exemptions for personnel and employee-evaluation records. See Ark. Code Ann. § 25-19-105(c)(3). You may wish to consult your local counsel regarding this other body of law.)

(As will be discussed herein, it appears from the face of the records that some portions are also either the personnel or evaluation records of other employees named therein. I do not know what notice has been provided to the subjects of these records, but you should be aware that the FOIA requires the custodian to notify the subject of personnel or evaluation records of the custodian's decision as to whether the records are exempt from disclosure. See Ark. Code Ann. § 25-19-105(c)(3)(A).)

I will set out all the definitions and standards and then apply them to the records
you have attached. I have Bates numbered the records for ease of identification.

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:

[W]ritings, 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.

As I understand it, all the attached documents were created or collected leading to
or as part of an informal, internal City of Little Rock investigation. Accordingly,
in my opinion, all of the attached documents clearly reflect the performance or
lack of performance of official functions. 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. Employee-complaint
records created on an employee's own initiative, and not by or at the behest of
the employer, are considered personnel records.

Whether a particular record meets the definition of a personnel record 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. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 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. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

b. Employee-evaluation exemption.

The second potentially relevant exemption is for "employee evaluation or job
performance records," which the FOIA likewise does not define. But the
Arkansas Supreme Court has 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.

Additionally, some employee-related records constitute "mixed records," i.e.,
records that constitute (1) more than one person's evaluation, (2) at least one
person's evaluation and at least one person's personnel record, or (3) more than
one person's personnel record.

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.

I can now apply the foregoing to the documents you have sent. As noted above,
the first step in analyzing these records' disclosure is to properly classify them.

• (Bates numbers 002-019, 023-029) In my opinion, based on the face of these investigation records, these records are employee evaluations. With the exception of certain portions of these records that pertain exclusively to another employee who was also the subject of the investigation, the records must be made available to the requestor pursuant to Ark. Code Ann. § 25-19-105(c)(2). Because there was no suspension or termination decision, the test for the release of evaluation records has not been met with respect to those portions pertaining to the other employee. Those portions must therefore be redacted as follows:

  • Bates number 014: the final full paragraph.
  • Bates number 015, in the paragraph immediately following the first italicized subheading: The first, second, seventh, and 13th sentences. Also, the final full paragraph.
  • Bates number 016: In the first paragraph, the first six sentences and the final three sentences. In the second paragraph, the first sentence. In the third paragraph, sentences two through five.
  • Bates number 027 in its entirety.

• (Bates numbers 20-22) I have no factual information regarding your apparent determination that it is an evaluation record, and I am unable to definitively classify this record from its face. Assuming it is properly classified as an evaluation record, then it must be disclosed to the requestor, pursuant to Ark. Code Ann. § 25-19-105(c)(2), after redacting portions that constitute only the evaluation record of the other employee who was subject of the investigation.

If, on the other hand, it is a personnel rather than an evaluation record under the test set out above, then, in my opinion, it is subject to disclosure to the requestor in its entirety. This is because the requestor is entitled (pursuant to Ark. Code Ann. § 25-19-105(c)(2)) to the portions of this record that constitute his own personnel record. And in my opinion, the disclosure of the portions that are the other employee's personnel record does not constitute a clearly unwarranted invasion of personal privacy under the Young test discussed above.

In conclusion, based on the face of the records and the limited facts before me, it is
my opinion that your decision is in part inconsistent with the FOIA. With the
exception of certain portions of the investigative file that pertain exclusively to
another employee and are determined as a factual matter to be the other
employee's evaluation record, the records in question are either the personnel or
evaluation records of the employee who has made the records request under the
FOIA. As such, with the exception of any evaluations of the other employee, the
records must be disclosed to the requestor pursuant to Ark. Code Ann. § 25-19-
105(c)(2).

Sincerely,

LESLIE RUTLEDGE
Attorney General