When does the Arkansas FOIA require a city to release disciplinary records of a senior public employee, even over the employee's objection?

Plain-English summary

The City of Fort Smith received a FOIA request for "any and all disciplinary action taken against a supervisor/manager in the City of Fort Smith between November 15, 2017, and December 15, 2017." The request specifically called out information about Michelle Dodroe, the Deputy Director of Engineering for the city's Utilities Department, but was not limited to her. The city's records custodian decided the responsive disciplinary record should be released. Dodroe objected, arguing there was no compelling public interest in releasing it because her actions did not involve public money, public interaction, breach of public trust, or gross incompetence.

AG Leslie Rutledge declined to override the city's decision. The record at issue was an employee evaluation/job performance record, which under Ark. Code Ann. § 25-19-105(c)(1) is releasable only after a final administrative resolution of a suspension or termination proceeding the records formed the basis for, AND when there is a compelling public interest in disclosure. The first three elements were not in dispute. On the fourth, the AG looked at the face of the record and concluded the city's compelling-public-interest determination was reasonable: Dodroe was a "deputy director" and "senior management" employee with multiple incidents in the record, including one involving what appeared to be a financial software change, which "could be said to involve the public fisc and that could undermine the public trust."

The opinion is one of the cleaner statements of how the AG applies the compelling-public-interest test to senior-management discipline records.

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 are disciplinary records normally closed under Arkansas FOIA?

Because Arkansas treats them as employee evaluation/job performance records under Ark. Code Ann. § 25-19-105(c)(1), and that exemption is much narrower than the personnel records exemption. Evaluation records are released only when (1) the employee was suspended or terminated, (2) there has been a final administrative resolution of that proceeding, (3) the record formed the basis for the suspend/terminate decision, AND (4) there is a compelling public interest in disclosure. The default is closed.

What counts as "compelling public interest"?

The AG and leading commentators look at three factors: (1) the nature of the infraction (especially whether it involves violations of public trust or gross incompetence), (2) the existence of a public controversy related to the agency, and (3) the employee's position within the agency. Senior-management positions tip the scale toward disclosure, since their decisions carry more public weight. Violations of policies designed to prevent undermining public trust are also categorically compelling.

Does the AG actually decide which records get released?

No. Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the records custodian makes the call. The AG only opines on whether that call is consistent with the FOIA. The AG's review here was deferential: the custodian's determination was reasonable, so the AG did not second-guess it.

Could Dodroe have stopped the release?

She could have challenged it in court. The AG's advisory opinion is persuasive but not binding. If Dodroe believed the compelling-public-interest analysis was wrong, court was the next forum. The opinion does not say whether she pursued that.

Does this rule mean every senior city employee's discipline file is public?

Not automatically. The four-element test still applies. The employee has to have been suspended or terminated, the proceeding has to be final, the record has to form the basis for the discipline, and there has to be a compelling public interest. What this opinion adds is that for senior management with multiple incidents, the compelling-public-interest threshold is easier to meet, especially when public funds are involved.

Background and statutory framework

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

• Personnel records under Ark. Code Ann. § 25-19-105(b)(12): presumptively open, with the Young v. Rice balancing test for "clearly unwarranted invasion of personal privacy."
• Employee evaluation/job performance records under Ark. Code Ann. § 25-19-105(c)(1): presumptively closed, with the four-element test for release.

The Arkansas Supreme Court's Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, 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 on the job. Records generated while investigating possible employee misconduct fall within that definition.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion procedure)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2008-065 (four-element test articulation)
• Op. Att'y Gen. 2010-055 (compelling public interest where rules aimed at avoiding undermining of public trust)
• Op. Att'y Gen. 97-400 (compelling public interest standard)

Source

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

Original opinion text

Opinion No. 2018-042
April 17, 2018
Michelle Dodroe, PE
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
Deputy Director of Engineering
Utilities Department, City of Fort Smith
801 Carnall Avenue, #500
Fort Smith, AR 72901
Dear Ms. Dodroe:
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 City of Fort Smith received a request under
the FOIA for "any and all disciplinary action taken against a supervisor/manager
in the City of Fort Smith between November 15, 2017, and December 15, 2017."
The request specifically mentions "information pertaining to [you], but not limited
to that one employee." You have attached a document that the custodian has
determined to be responsive to the request and releasable pursuant to the FOIA.
You object to this decision because you say "no compelling public interest would
be served by [its] release." You point to your position and you assert that your
"actions or lack thereof did not involve a misuse of public money, ... any
interaction with the public[,] . . . [or] a breach of the public trust or gross
incompetence." You ask whether the custodian's determination is consistent with
the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
323 C ENTE R SHEET. SUITE 200 · LITTLE ROCK. AH.KANSAS 72201
TE LEPHO NE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 2
FOIA. I cannot say the custodian's decision in this instance 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 seem to be met. The request was made to the City of Fort
Smith, which is a public entity subject to the FOIA. The request appears to pertain
to public records. 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 There is a rebuttable presumption that
documents kept by an entity subject to the FOIA are public records.2
It is apparent from the face of the document in question that it is a record of the
performance or lack of performance of a public employee. Accordingly, in my
opinion, it is a public record and must be disclosed unless some specific exception
provides otherwise.
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two types of records normally found
in employees' personnel files:3 "personnel records" and "employee evaluation or
1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2 See Op. Att'y Gen. 2010-044.
3 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-Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 3
job performance records."5 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.
In this instance, I believe it is clear from the face of the record at issue that the
relevant exception is the one for employee-evaluation records. 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.6 Employee-evaluation records include records generated while
investigating possible employee misconduct and that detail incidents that gave rise
to an allegation of misconduct. 7
Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
4 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."
5 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(12) 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."
6 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.
7 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. Michelle Dodroe, PE
Deputy Director of Engineering
Opinion No. 2018-042
Page 4
The record is question was plainly created by the employer to evaluate you, and it
plainly details your job performance. It therefore qualifies as an evaluation record
under the FOIA. 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).8
   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. 9
   These commentators also note that "the status of the employee" or "his rank
   within the bureaucratic hierarchy" may be relevant in determining whether a
   8 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
   9 Watkins, et al., at 238-39 (footnotes omitted). Michelle Dodroe, PE
   Deputy Director of Engineering
   Opinion No. 2018-042
   Page 5
   "compelling public interest" exists. 10 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.11
   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. 12 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.
   Your objection to the record's release is based on your contention that there is no
   compelling public interest in its disclosure (the fourth element noted above). I
   therefore gather that you agree the other three elements for release are met.
   This office has repeatedly opined that, in certain situations, a compelling public
   interest exists in the disclosure of documents pertaining to the categories of
   information you have identified. However, neither I nor any of my predecessors
   have opined that these are the only categories of information that could give rise to
   a compelling public interest favoring disclosure. In my opinion, regardless of
   what category of information a document contains, the custodian must conduct a
   detailed review of the document-considering all of the surrounding facts and
   circumstances-in order to determine whether a compelling public interest exists
   in its disclosure.
   10 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.").
   11 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 .... ").
   12 See Op. Att'y Gen. 96-168; Watkins, et al., at 223. Michelle Dodroe, PE
   Deputy Director of Engineering
   Opinion No. 2018-042
   Page 6
   In this instance, I have no information other than the record at issue by which to
   gauge the custodian's apparent determination that the public has a compelling
   interest in its disclosure. From the face of the record, it seems reasonable to
   surmise that the custodian decided the public interest is compelling in light of the
   number of actions or inactions listed, and their cumulative effect in your role as a
   "deputy director" and a member of "senior management," as you are referred to in
   the record. Additionally, among the actions mentioned in the record is an incident
   concerning a change in what appears (from the face of the record) to be financial
   software. The issue raised in that matter could be said to involve the public fisc
   and that could undermine the public trust.
   In light of the foregoing, I cannot say that the custodian's decision to disclose the
   record is inconsistent with the FOIA.
   Sincerely,
   "'~;;~~- L. / ;...R"fo
   LESLIE RUTLEDGE
   Attorney General