Can a state agency release a former employee's evaluation record when the employee resigned 'in lieu of termination'?

Plain-English summary

Michael Morgan, a former Arkansas Department of Correction (ADC) employee, objected to the release of one specific document from his personnel file: a written statement he created on October 31, 2006, apparently at his employer's request. The custodian had decided to release the document. Morgan invoked his right under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to seek an AG opinion on whether the release was consistent with the FOIA.

The AG could not give a definitive answer, because the custodian had not explained the basis for the release decision, and the central question (whether Morgan's resignation was voluntary or amounted to a forced/constructive termination) was a question of fact beyond the scope of an AG opinion.

The AG laid out the analytical framework: the document appeared to be an employee-evaluation record under Thomas v. Hall (created by or at the employer's behest, evaluating performance, detailing performance or lack of performance). If so, the four-prong test for release applied, and the threshold prong (suspension or termination) became the pivotal issue. ADC's records said Morgan resigned "in lieu of termination." The AG noted that this office has long held a "voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination," but a resignation tendered in the face of a "more certain, impending termination" can be deemed a constructive termination. That distinction had to be made by the custodian on the facts.

Currency note

This opinion was issued in 2018. 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.

Why "in lieu of termination" is not conclusive

The opinion's most useful contribution is its careful treatment of the voluntary-vs-forced resignation distinction. The AG identified two competing strands of prior AG opinions:

Strand 1 (default rule): "[A] voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination" (Op. Att'y Gen. 2011-078). Under this rule, an evaluation record cannot be released because the threshold suspension/termination prong fails.

Strand 2 (constructive-termination exception): A resignation can amount to a forced, coerced, or constructive termination if it was tendered "in the face of a more certain, impending termination" (Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044, 2007-322; Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act at 231). In that case, the suspension/termination prong is met and the rest of the four-prong test runs.

The AG noted that as of 2018, Arkansas's appellate courts had not yet addressed this distinction with respect to the FOIA. So the question fell to the custodian to decide based on the surrounding facts: how immediate was the threatened termination, what choices did the employee have, what other circumstances suggest coercion?

Common questions

I'm a state employee being asked to resign 'in lieu of termination.' What does that mean for my records?
Under the law as it stood in 2018, the answer depended on whether your resignation was truly voluntary or was a forced/constructive termination. A purely voluntary resignation generally protects evaluation records from release. A constructive termination does not. The custodian decides this based on the facts surrounding your departure.

As a custodian, how do I tell the difference?
Look at: how immediate was the threatened termination, what alternatives were given, the documentary record of any disciplinary process, and the timing. The opinion does not provide a bright-line test.

What if I'm the requester and the agency says the records are exempt?
You can ask the AG for an opinion under § 25-19-105(c)(3)(B)(i). You can also bring a FOIA enforcement action in court.

Why did the AG not just say 'release it' or 'don't release it'?
Because the custodian had not explained the basis for the release decision, and because the voluntary-vs-forced question is a question of fact. AG opinions cannot do fact-finding (per Op. Att'y Gen. 2016-032).

What is an "employee evaluation record" exactly?
Thomas v. Hall, 2012 Ark. 66: any record (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that details the employee's performance or lack of performance on the job. Includes records generated while investigating possible misconduct.

Background and statutory framework

The Arkansas FOIA splits employment-related records into "personnel records" (open unless clearly unwarranted privacy invasion) and "employee evaluation or job performance records" (closed unless all four prongs of § 25-19-105(c)(1) are met). The four prongs are:

1. The employee was suspended or terminated.
2. There has been a final administrative resolution.
3. The records formed a basis for the discipline.
4. There is a compelling public interest in disclosure.

The threshold prong is the gatekeeper here. If the employee resigned voluntarily, an evaluation record cannot be released even if everything else points to disclosure. The "constructive termination" doctrine creates a narrow path to treat a forced resignation as the legal equivalent of termination.

The opinion also lists redactions that personnel records typically require even when releasable: home address, employee personnel number, marital status and dependents, date of birth, SSN, medical info, identifying info for undercover law enforcement, driver's license number, insurance coverage, tax info, payroll deductions, and banking information.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion authority)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ops. Att'y Gen. 2011-078, 2008-044, 2014-103, 2013-016, 2007-322 (constructive-termination doctrine)

Source

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

Original opinion text

Opinion No. 2018-024
March 6, 2018
Michael Morgan
c/o Lucy Cockrell, Asst. HR Administrator
Arkansas Department of Correction
2403 East Harding Avenue
Pine Bluff, AR 71601

Dear Mr. Morgan:

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. 2017). 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 Arkansas Department of Correction (ADC) has received a FOIA request for a copy of your personnel file, "including but not limited to F-1 forms, F-4 forms, training history, etc." You have attached several documents that the custodian of records has determined to be responsive to the request and must be released. You object to the release of one record only, your written statement dated October 31, 2006 (the "Record"). Accordingly, I will limit my discussion to this Record.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I lack sufficient information to definitively determine whether the custodian's decision to release the Record is consistent with the FOIA. The Record appears to be an employee-evaluation record, based upon the face of the Record and the very sparse information before me. If that classification is correct, then the custodian's decision to release the Record would be contrary to the FOIA if you voluntarily resigned. But I do not know on what basis the custodian classified the Record, and it seems from the face of the records available to me that there may be a fact question whether your resignation was voluntary. I cannot resolve these factual questions in an attorney general's opinion. I will, however, lay out the general standards regarding employee-related records and the appropriate tests governing their disclosure.

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 Record is held by the ADC, 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.

Based on the information you have provided, you created the Record at the request of your employer, ADC, which kept it with your employee records. Accordingly, in my opinion, the Record reflects the performance or lack of performance of an official function during your employment with ADC. Therefore, in my opinion, the Record is a public record and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

III. Application.

As discussed above, when custodians receive FOIA requests for employment-related records, they must make two determinations: 1) whether the record being requested meets the definition of a personnel record or an employee-evaluation record, and 2) whether the record should be disclosed after applying the appropriate test. The proper classification of an employee-related record is a determination the custodian must make in the first instance, taking into account all of the relevant facts and circumstances.

While I understand that the custodian believes the Record should be disclosed, as redacted, I have not been apprised of the custodian's decision regarding the Record's classification. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. Unfortunately in this case, ADC simply informed you of its decision to release the Record, without providing any explanation regarding the basis for that decision. This is insufficient information, for both the employee and for this office in issuing opinions. As I cannot act as a fact-finder in the issuance of opinions, I cannot definitively opine on whether the custodian's decision with respect to the Record is consistent with the FOIA.

Based on the face of the Record, and your comment in your request for my opinion that your employer requested that you create the Record, it seems likely that the Record is an employee-evaluation record. If so, then it cannot be released unless all four prongs of the test for the disclosure of evaluation records listed above are met. With that in mind, a question appears to exist whether the first prong, the "level of discipline," has been satisfied in this case.

As explained above, a suspension or termination is a key element that must be present for the release of employee-evaluation or job-performance records under section 25-19-105(c)(1). One of the records before me (the release of which is not at issue here) states that you resigned without notice "in lieu of termination." In your request for my opinion, you repeat that language verbatim. An employee's resignation ordinarily will not meet the "level of discipline" prong of the test for disclosure of an employee-evaluation record. This office has on numerous occasions stated that "a voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination." On the other hand, this office has opined that, under certain circumstances, a resignation tendered in the face of a more certain, impending termination could be deemed to be a forced, coerced, or constructive termination for the purposes of the FOIA.

I cannot answer the question of whether your resignation was forced or voluntary with the little information before me. You state in your request for my opinion that you resigned "in lieu of termination." But even this language, without more, is not conclusive of a forced or constructive termination. Meanwhile, other information in the records provided to me suggests that your resignation may well have been voluntary. If that is the case, then the Record cannot be released because there was no suspension or termination, and thus the test for disclosure of employee-evaluation records has not been met. However, resolving this question requires fact finding that I cannot undertake in an attorney general's opinion.

In conclusion, I lack sufficient information to determine whether the custodian's decision to release the Record is consistent with the FOIA. The Record appears to be an employee-evaluation record, based upon the face of the Record and the very sparse information before me. If that classification is correct, then the Record should not be disclosed if you were not in fact suspended or terminated. The circumstances surrounding both the creation of the Record and your subsequent resignation are issues of fact that are beyond the scope of an attorney general's opinion. The custodian must properly classify the Record and then apply the appropriate test for its disclosure, taking into account all of the relevant surrounding facts and circumstances.

Sincerely,

LESLIE RUTLEDGE
Attorney General