Could Faulkner County withhold investigation records when the employee wasn't suspended or fired?

Plain-English summary

Twentieth Judicial District Prosecuting Attorney J. Cody Hiland was asked, in an unusual posture, to act as Faulkner County's records custodian. The county HR director and county civil attorney had recused from a personnel investigation, and Hiland was appointed acting county civil attorney to finish it. Once it was complete, someone made a FOIA request for "the report and recommendations you gave the county regarding your findings in the now-complete investigation" of a county employee.

Hiland concluded he could not release the records because no termination or suspension had resulted from the investigation. He asked the AG to confirm that decision was consistent with FOIA. The AG agreed.

The reasoning is straightforward once you have the FOIA framework in hand. Internal investigation records that detail an employee's job performance qualify as "employee evaluation or job performance records" under the Thomas v. Hall test. Those records can only be released if all four conditions are met: (1) the employee was suspended or terminated; (2) there was a final administrative resolution; (3) the records formed a basis for that suspension or termination; and (4) the public has a compelling interest in disclosure. The first prong was not met here. Without a suspension or termination, the records stay closed.

Hiland flagged a wrinkle: one of the records contained a recitation of certain county personnel policies. Could that portion be released even if the rest of the document was withheld? The AG said no. Because the policy recitation was created as part of the evaluation record and is part of that document, it shares the document's protected status. There is no severability rule that breaks an evaluation record into release-by-release pieces.

The opinion has a wider lesson for custodians: classification first, then test. Step one is deciding whether a record is a personnel record under § 25-19-105(b)(12) or an evaluation record under § 25-19-105(c)(1). Step two is applying the right test for that category. Hiland's correspondence showed he had done both correctly: he classified the closed-investigation reports and supporting exhibits as evaluation records, then applied the four-prong test and found it not satisfied.

Currency note

This opinion was issued in 2017. 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 two key FOIA exemptions for employee-related records are:

Personnel records under Ark. Code Ann. § 25-19-105(b)(12), which are 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 under Ark. Code Ann. § 25-19-105(c)(1), which are closed unless all four conditions are met: suspension or termination, final administrative resolution, records formed a basis for the discipline, and compelling public interest. The Arkansas Supreme Court in Thomas v. Hall (2012) defined these records as those "(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," explicitly including investigation records about employee misconduct.

The four conditions are conjunctive. Failing any one keeps the record closed. The most common reason for failure is the first condition: no suspension or termination. Internal investigations that conclude with no formal discipline keep the resulting records confidential.

The "compelling public interest" element is not defined by statute. The leading FOIA commentators (Watkins, Peltz-Steele, and Steinbuch) suggest factors: nature of the infraction (especially public-trust violations or gross incompetence), existence of related public controversy, and the employee's position within the agency. Higher-ranking employees and serious misconduct are more likely to clear the bar. Rank-and-file misconduct typically does not.

The point of this exemption is to keep the formal evaluation process honest. If supervisors knew their evaluation drafts could be FOIA'd, they'd be more cautious about being candid. The exemption protects that candor.

Common questions

Could the requester get the closed-investigation report from Faulkner County?
No. The employee was not suspended or terminated, so the four-prong test for releasing evaluation records was not met.

What if the investigation found wrongdoing but didn't result in formal discipline?
Same answer. The first prong of the test asks about suspension or termination, not about the substance of the investigation's conclusions.

What about the part of the report that just recited county personnel policies?
The AG said it was still part of the evaluation record. There's no rule that lets you carve out a "neutral" portion of an otherwise-protected document for release.

Why protect investigation reports if the employee wasn't disciplined?
The AG's reasoning, drawn from the FOIA's structure, is that the evaluation process needs candor. Releasing critical assessments of employees who were ultimately cleared could chill internal candor and harm the people being evaluated.

Could the employee themselves get the report?
Yes. Under Ark. Code Ann. § 25-19-105(c)(2), the employee or their designated representative is entitled to their own personnel and evaluation records, regardless of the four-prong public-disclosure test. That avenue is separate from the public FOIA path.

Source

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

Original opinion text

Opinion No. 2017-102
September 27, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable J. Cody Hiland
Prosecuting Attorney
Twentieth Judicial District
Faulkner County Courthouse
Post Office Box 550
Conway, AR 72033
Dear Mr. Hiland:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). This subsection authorizes the custodian, a 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 your office has received a FOIA request for "the report and recommendations you gave the county regarding your findings in the now-complete investigation of [a Faulkner County employee]." You have attached several documents that you believe are responsive to the request, and you have stated that you are "of the opinion that [you] are unable to release the enclosed documentation and supporting exhibits ... since no termination or suspension occurred as a result of [your] investigation and assessment." You have thus determined that the test for the release of the requested records has not been met. You ask whether your decision is 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 you have properly classified the records presented as employee evaluation/job performance records. Because, as I understand it, the employee in question has not been suspended or terminated, these records are shielded from disclosure under the applicable test. It is therefore my opinion that your decision is consistent with the FOIA.

However, you noted that a portion of one of the records you plan to withhold as an employee evaluation record recites certain specific county personnel policies. You suggest, without directly stating so, that this portion of the evaluation record might be releasable under FOIA. In my opinion, it is clear from the face of the record that this portion was created as part of the employee evaluation record and is fully a part thereof. Accordingly, it should not be released because the applicable test for disclosure is not met.

[Full FOIA framework discussion preserved in the original opinion text. Application: documents at issue were created at the behest of the employer to evaluate and detail an employee's job performance, meeting the Thomas definition of evaluation records. Because the first prong of the four-part test (suspension or termination) was not met, the documents were properly withheld. The portion of one record reciting county personnel policies was created as part of the evaluation record and was not severable for release.]

In conclusion, you, as the custodian, have properly classified all the attached documents as employee evaluation records, and you have properly determined that the documents are exempt from disclosure because the employee being evaluated has not been suspended or terminated. In my opinion, given the foregoing analysis, your decision is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General