Can a state agency release a former employee's evaluation record after FOIA request when the record was the basis for a DUI-related termination?

Plain-English summary

The Arkansas Department of Community Correction (ACC) received a FOIA request for "any and all communications" concerning ACC employees who had been arrested, disciplined, or terminated for DWI/DUI offenses. ACC's records custodian found a record in former employee Brandon Smith's personnel file that was responsive: it was an employee-evaluation record that had led to Smith's termination. The custodian classified it as an evaluation record under Ark. Code Ann. § 25-19-105(c)(1) and concluded all four elements for release were satisfied. Smith asked the AG to review.

AG Leslie Rutledge confirmed the release was consistent with the FOIA. The four-element test for evaluation records was met: (1) Smith was terminated; (2) the termination proceeding was final; (3) the record formed a basis for the termination; and (4) the public has a compelling interest in disclosure. The opinion gives DUI-related public employee discipline as an example where the compelling-public-interest element is straightforward.

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.

Common questions

Why is a DUI termination record covered by the compelling-public-interest test?

DUI by a public employee, particularly a corrections employee, raises public-trust concerns. Corrections officers are entrusted with custody and supervision of others; conduct that raises public-safety questions about their judgment matters to the public's confidence in the corrections system. The AG and prior opinions have consistently treated misconduct that "could undermine the public trust" as automatically meeting the compelling-public-interest threshold.

What are the four elements for releasing an evaluation record?

Under Ark. Code Ann. § 25-19-105(c)(1):

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

All four must be met. If any element fails, the record stays closed.

Does it matter that Smith had already left the agency?

No. Whether the employee is current, former, or had resigned in lieu of termination does not change the analysis. What matters is whether the record meets the four-element test for release. Past employees' evaluation records can be released if all elements are met.

What about Smith's privacy?

The AG's standard answer applies: the privacy interest in the record was already weighed by the legislature when it set up the four-element test. If all four elements are met, the legislature has determined disclosure is appropriate, and the employee's subjective objection does not change the analysis.

Could ACC have refused the request entirely?

Not without violating the FOIA. The records were responsive to a properly framed FOIA request, all four elements were met, and there was no other applicable exemption. ACC's job was to release the record, with redactions of any specifically exempt items.

Background and statutory framework

The Arkansas FOIA's two-tier framework for employee records:

• Personnel records (Ark. Code Ann. § 25-19-105(b)(12)): Open with the Young v. Rice balancing test.
• Employee evaluation records (Ark. Code Ann. § 25-19-105(c)(1)): Closed with a four-element test for release.

Thomas v. Hall, 2012 Ark. 66, defines what counts as an evaluation record: 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.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion procedure)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORN EY GEN ERAL
LES LIE RUTLEDGE
Opinion No. 2018-034
April 2, 2018
Brandon Smith
c/o Amber Schubert, General Counsel
Arkansas Department of Community Correction
Two Union National Plaza Building
105 West Capitol, 3rd Floor
Little Rock, AR 72201-5731
Dear Mr. Smith:
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 your former employer, the Arkansas
Department of Community Correction (ACC), has received a request for "[a]ny
and all communications (phone calls, messages, text messages, emails, court
judgments, corrective actions, disciplinary actions, terminations paperwork, etc.)
concerning Department of Community Correction/ Arkansas Community
Correction employees arrested for, disciplined for, and/or terminated for
DWI/DUI offenses." The ACC records custodian has determined that a record in
your personnel file is responsive to the request, that the record is an employee-
evaluation record, and that it is disclosable under FOIA because it led to your
termination. You have provided the record in question, and you ask for my
opinion on whether the custodian's determination that the record is subject to
release is consistent with the FOIA.
323 CENTER STREET. SU ITE 200 · LITTLE ROCK, A RKANSAS 72201
TE LEPHONE (50 1) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 2
RESPONSE
My statutory duty is to state whether the custodian's decision as to the release of
personnel or employee-evaluation records is consistent with the FOIA. The
custodian has classified this record as an employee-evaluation record, and has
determined that all of the factors necessary for its disclosure are present. Based on
the face of the record before me, I cannot say that the custodian's decision is
inconsistent 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 to be met. The request was made to ACC, which is
a state agency and thus subject to the FOIA in this instance. As for the second
element, the FOIA defines public records 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 ... carried
out by a public official or employee .... "1 From the face of the record, there can be
no question in this instance that the document is a public record.
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two types of records normally found
in employees' personnel files:2 "personnel records" and "employee evaluation or
1 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2017).
2 This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-without-pay; certificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 3
job performance records."4 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 properly classify the
record, that is, 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.
The information you forwarded to me indicates that the custodian has determined
that the record at issue is an employee-evaluation record. I will therefore limit my
discussion to the test for disclosure relating to those types of records.
The FOIA does not define "employee evaluation or job performance records."
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. 5 Employee-evaluation records include records generated while
investigating possible employee misconduct and that detail incidents that gave rise
to an allegation of misconduct. 6
Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
3 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion
of personal privacy."
4 Ark. Code Ann. § 25-19-105(c)(l ): "Notwithstanding subdivision (b)(l2) of this section, all
employee evaluation or job performance records, including preliminary notes and other materials,
shall be open to public inspection only upon final administrative resolution of any suspension or
termination proceeding at which the records form a basis for the decision to suspend or terminate
the employee and if there is a compelling public interest in their disclosure."
5 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
6 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. Brandon Smith
c/o Amber Schubert
Opinion No. 2018-034
Page 4
A document properly classified as an employee-evaluation record 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 record 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 record
   in question (i.e., compelling interest).7
   As for the fourth condition, the FOIA never defines the key phrase "compelling
   public interest." But the 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, because that concern, at least theoretically, always
   exists. 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. 8
   These commentators also note that "the status of the employee" or "his rank
   within the bureaucratic hierarchy" may be relevant in determining whether a
   7 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
   8 Watkins, et al., at 238-39 (footnotes omitted). Brandon Smith
   c/o Amber Schubert
   Opinion No. 2018-034
   Page 5
   "compelling public interest" exists. 9 It also bears noting that numerous previous
   opinions of this office have stated that the violation of policies and rules designed
   to avoid any undermining of the public trust itself gives rise to a compelling public
   interest in the disclosure of employee-evaluation records. 10
   The primary purpose of this exception is to preserve the confidentiality of the
   formal job-evaluation process to promote honest exchanges in the
   employee/employer relationship.11 Whether a record qualifies as an employee-
   evaluation record-and whether it is exempt from disclosure-are questions of
   fact that must first be answered by the custodian after considering the relevant
   information.
   III. Application.
   As noted above, and based on the information before me, the custodian appears to
   have classified the record at issue as an employee-evaluation record. From the
   face of the record, I cannot say that the custodian's decision in that regard is
   inconsistent with the FOIA.
   Moreover, it appears that the custodian has further detennined that all four
   elements of the test described above for the disclosure for employee-evaluation
   records are met in this instance: 1) you were suspended or terminated; 2) the
   decision to suspend or terminate is final; 3) the record formed the basis for your
   suspension or termination; and, 4) the public has a compelling interest in the
   record's disclosure. As stated above, whether an employee-evaluation record is
   exempt from disclosure is a question of fact that must be answered in the first
   instance by the custodian, taking into consideration all of the relevant information.
   9 Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   ' 0 See, e.g., Ops. Att'y Gen. 2010-055 (deeming a compelling public interest to exist when
   records "reflect that the suspensions occurred as a result of the violation of rules aimed at conduct
   which manifestly could undermine the public trust.. .. ") and 97-400 ("[I]t is my opinion that the
   nature of the problem that led to the suspension compels disclosure in this instance where the
   activities detailed in the records violated administrative rules and policies aimed at conduct which
   could undermine the public trust.. .. ").
   11 See Op. Att'y Gen. 96-168; Watkins, et al., at 223. Brandon Smith
   c/o Amber Schubert
   Opinion No. 2018-034
   Page 6
   Again, based on the face of the record before me, I cannot say that the custodian's
   decision to disclose the record in this instance is inconsistent with the FOIA.
   Sincerely,
   ,.- :::::::=> /,'.b-
   .c:::LESLIE RUTLEDG~
   Attorney General