Can a public employee under internal investigation get the full investigation file under Arkansas FOIA, even when other employees are named in it?

Plain-English summary

The City of Little Rock's FOIA coordinator, Ashley Boswell, sought the AG's review of a custodian's decision to release a complete internal-investigation file to the very employee who had been the subject of that investigation. The wrinkle: the file contained letters, a memorandum, and witness statements that named other city employees too, so the records were "mixed records" under Arkansas FOIA practice.

Attorney General Leslie Rutledge concluded that the decision to release the records was consistent with FOIA, but the underlying classification was not entirely right. The requesting employee had a statutory right under Ark. Code Ann. section 25-19-105(c)(2) to access his own personnel and employee-evaluation records. Where portions of the file also qualified as other employees' personnel records, the custodian still had to run the Young v. Rice balancing test for those people. After reviewing the file, the AG concluded that disclosing the other-employee portions did not constitute a clearly unwarranted invasion of personal privacy under that test. So the bottom line, full disclosure to the subject employee, matched what FOIA required. But the custodian had reasoned only from the "his own performance records" angle, without separately classifying the mixed-record portions, and the opinion flagged that gap.

The opinion also reminded the custodian that section 25-19-105(c)(3)(A) requires giving the subjects of personnel or evaluation records notice of the custodian's disclosure decision, which had not been confirmed in this exchange.

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.

Background and statutory framework

The Arkansas FOIA at section 25-19-105(c)(3)(B)(i) lets the custodian, the requester, or the subject of personnel or employee-evaluation records ask the AG whether a particular release decision is consistent with the Act. The AG's review is statutory and limited; the office does not act as a fact-finder beyond what is presented.

Two separate exceptions can come into play for employee-related files. Personnel records (everything employee-specific other than evaluations) are open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under section 25-19-105(b)(12). Employee-evaluation or job-performance records, defined by Thomas v. Hall as records created by or at the employer's behest to evaluate performance, are closed unless suspension or termination, finality, basis, and compelling public interest are all present per section 25-19-105(c)(1).

Layered on top of those two tests is the access right of the employee himself. Under section 25-19-105(c)(2), the personnel and evaluation records of an employee must be made available to the person about whom the records are maintained, even if those records are otherwise exempt from public disclosure. That right is what the custodian leaned on here.

The Arkansas Supreme Court's privacy framework comes from Young v. Rice. The Young test asks first whether the information is of a personal or intimate nature giving rise to more than a de minimis privacy interest, and second, whether that interest is outweighed by the public interest in disclosure, with the scale tipped in favor of disclosure. Stilley v. McBride confirmed that the burden falls on the person resisting disclosure.

Why the custodian's reasoning was incomplete

The custodian's stated basis was that the employee was "requesting his own performance records." That correctly identified the section 25-19-105(c)(2) self-access right, but it skipped a step. Internal-investigation files commonly include records that document the conduct of multiple employees: complaining witnesses, witnesses to incidents, and personnel actions taken or considered against more than one person. Each of those touchpoints can make a single document a "mixed record" subject to multiple classifications.

The proper path the AG outlined was: classify each document, or each portion of each document, as it relates to each employee named in it; then apply the right test for each employee separately. A record that must be disclosed to the subject employee may still need redaction of information about other employees if that information would clearly invade their privacy.

Here, after reviewing most of the file (the videos were not submitted), the AG concluded that the other-employee portions did not meet the privacy threshold. So full release was the right outcome. But the AG made clear that the custodian's classification work was the part that needed to be more careful next time.

Notice to subjects

Section 25-19-105(c)(3)(A) requires the custodian to notify subjects of personnel or evaluation records of the custodian's decision to release. The opinion flagged this in a footnote because it was not clear from the request whether the other employees named in the records had been notified. That notice triggers the subjects' own right to seek an AG opinion under section 25-19-105(c)(3)(B)(i).

Common questions

Did the requesting employee have a right to his own internal-investigation file?

Yes. Under section 25-19-105(c)(2), an Arkansas public employee can access his own personnel and evaluation records, even when those records are otherwise exempt. The opinion treated that right as the threshold reason the file had to be produced.

Why didn't the names of other employees mentioned in the file get redacted?

The AG ran the Young balancing test for the portions naming other employees and concluded that disclosure did not constitute a clearly unwarranted invasion of personal privacy. The privacy interest at stake did not outweigh the public interest in disclosure on these facts.

What is a "mixed record" under Arkansas FOIA?

A record that includes information about more than one person, where the right classification (personnel record vs. evaluation record) and the right test for disclosure differ depending on which person you are asking about. The AG's earlier Op. Att'y Gen. 2015-057 and other prior opinions describe the same idea. The custodian must run the analysis person by person.

Did the AG say the custodian got it wrong?

The AG said the result, full release to the subject, matched what the FOIA required. But the custodian had not done the mixed-records classification step, so the reasoning supporting the decision was incomplete. That distinction matters because the next investigation file may have different facts where skipping the step would lead to an incorrect release.

What about the witness statements and the memorandum portions about other employees?

The AG specifically identified the August 14, 2018 letters with certified mail numbers ending "3795" and "3887," paragraphs 2 through 4 of the memorandum, and both witness statements as portions also qualifying as personnel records of other named employees. After reviewing them, the AG concluded those portions still passed the Young test for disclosure.

Citations

Ark. Code Ann. sections 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(2), 25-19-105(c)(3)(A), 25-19-105(c)(3)(B)(i); 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.

Source

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

Original opinion text

Opinion No. 2018-103
September 5, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Ashley Boswell, FOIA Coordinator
City of Little Rock
Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Boswell:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made pursuant to 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 an employee has requested "copies of all documentation and recordings, and or videos" resulting from an internal investigation of a complaint filed against the employee by another employee. You have determined that the records should be disclosed "since [the employee] is requesting his own performance records." 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 most of the records at issue, it is my opinion that your decision to release the records to the requester is consistent with the FOIA. But the basis for your decision is not entirely consistent with the FOIA.

Your statement that the employee is "requesting his own performance records" suggests that you are aware that the FOIA specifically authorizes public employees to gain access to their own personnel records and employee evaluations. In this case, however, some of the records, or portions thereof, also qualify as personnel records of other employees named therein. Even though an employee has access to his own employee file under the FOIA, the custodian must consider whether information about other employees rises to the level of protection under the test for the release of personnel records.

In my opinion, the portions of the records in question that qualify as other employees' personnel records are not shielded from disclosure under the applicable test. That is why I have concluded that your decision to release all the records to the requester is consistent with the FOIA. However, you may have failed to consider the proper classification of some of the records at issue.

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 are clearly met. The request was made to the City of Little Rock, which is a public entity subject to the FOIA. And it appears clear from the face of the records that they were created as part of an internal investigation and thus are "public records," which the FOIA defines 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 . . . ."

Because the records are public records under this definition, they 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. Whether a particular record meets this definition 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 if such 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 the scale tipped in favor of 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. Additionally, 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));
• Employee personnel number;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

b. Employee-evaluation exception.

The second potentially relevant exception 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 other person's personnel record, or (3) more than one person's personnel record.

If a document meets the definition of employee-evaluation records, 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).

III. Application.

As indicated above, when custodians receive FOIA requests for employment-related records, they must make two initial determinations after considering all the relevant facts and circumstances. The first determination is whether the record being requested meets the definition of either a personnel record or an employee-evaluation record, and the second is whether the record should be disclosed after applying the appropriate test for that type of record.

Both types of records, personnel records and employee-evaluation records, are included in the internal-investigation records at issue here. Most of the records are either the personnel or evaluation records of the requesting employee. But several records or portions of records are also the personnel records of other employees named therein.

In my opinion, the records are subject to disclosure to the requester in their entirety because, as stated above, the FOIA specifically authorizes public employees to gain access to their own personnel records and employee evaluations. And in my opinion, the disclosure of the portions that are other employees' personnel records does not constitute a clearly unwarranted invasion of personal privacy under the relevant FOIA test.

Accordingly, it is my opinion that you have correctly decided that the records must be disclosed to the requester (who was the subject of the internal investigation) in their entirety. But the basis for your decision may not be entirely consistent with the FOIA because you may have failed to consider the proper classification of some of the records at issue.

Sincerely,

LESLIE RUTLEDGE
Attorney General