Can the Little Rock School District release a former employee's eligibility-for-continued-employment file under Arkansas FOIA over the subject's privacy objection?

Plain-English summary

In September 2018, attorney William Almand wrote to Attorney General Leslie Rutledge on behalf of his client, a former Little Rock School District employee. The LRSD had received a FOIA request for the former employee's personnel file. The custodian had decided to release several records, redacted, after concluding they were employee-evaluation records meeting the four-prong test under Ark. Code Ann. § 25-19-105(c)(1). Almand asked the AG whether that release decision was consistent with the FOIA.

The AG mostly affirmed. Reviewing the actual records, the AG concluded that most were properly classified as employee-evaluation records, meaning records (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that detail performance or lack of performance on the job. They were created or collected to assess the former employee's eligibility for continued employment with LRSD, which fits squarely inside the Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of employee-evaluation records.

For an employee-evaluation record to be releasable, four prongs must all be met: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for the suspension/termination decision, and (4) the public has a compelling interest in disclosure. The AG found the first three clearly satisfied here. As for compelling public interest, the AG said it lacked sufficient information to challenge the custodian's compelling-interest determination. So the four-prong test was met (or at least not clearly failing), and the records were releasable as redacted.

The AG also corrected a legal-framework mistake in Almand's submission. Almand had argued his client's "privacy interest outweighs any public interest" under § 25-19-105(b)(12), the personnel-records exception. But § 25-19-105(b)(12)'s clearly-unwarranted-invasion-of-personal-privacy balancing test is for personnel records, not for employee-evaluation records. Personnel records and employee-evaluation records are mutually exclusive categories. Once the custodian properly classified these as employee-evaluation records, the personnel-records balancing test was simply the wrong analytical tool. The applicable test was the § 25-19-105(c)(1) four-prong test, and that test was met.

Two narrower notes. First, some of the records postdated the former employee's termination. Records created after the employee left LRSD might not qualify as "employee records" at all, in which case they could be outside the AG's § 25-19-105(c)(3)(B)(i) review scope. The AG did not opine on those. Second, the AG declined to second-guess the custodian's apparent decisions not to redact certain information about the client's ineligibility for continued employment with LRSD. Some of that information might be confidential under other Arkansas laws, but those non-FOIA confidentiality questions fall outside the AG's FOIA review.

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

Arkansas's FOIA presumes public records are open. The personnel-records exception (§ 25-19-105(b)(12)) and the employee-evaluation exception (§ 25-19-105(c)(1)) cover two mutually exclusive categories of employment records. The personnel-records exception uses the Young v. Rice balancing test. The employee-evaluation exception uses the four-prong test (level of discipline, finality, basis, compelling public interest).

Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines employee-evaluation records as records (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that detail the employee's performance or lack of performance on the job. Records assembled to evaluate an employee's eligibility for continued employment fit that definition.

Section 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject seek AG review. The scope of the AG's review under that provision is limited to personnel and employee-evaluation 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 doesn't privacy outweigh public interest for employee-evaluation records?
Because the legislature made a different policy choice for that category. Once an employee has been suspended or terminated, there has been a final resolution, the records formed the basis for that decision, and the public has a compelling interest in disclosure, the records come out. The legislature did not also build in a separate privacy-balancing layer for that category. Privacy balancing applies to personnel records under § 25-19-105(b)(12), not to employee-evaluation records under § 25-19-105(c)(1).

What's the difference between a personnel record and an employee-evaluation record?
Personnel records are everything in an employment file other than evaluation/job-performance records. Personnel records include applications, payroll information, transfer records, insurance forms, leave records, training certificates, disciplinary actions, and similar items. Employee-evaluation records are records created by the employer to evaluate the employee's performance, including investigation files prepared to support disciplinary decisions. The two are mutually exclusive.

What does "compelling public interest" mean?
The FOIA does not define it. Leading commentary says factors include the nature of the infraction (especially violations of the public trust or gross incompetence), the existence of a public controversy related to the agency, and the employee's rank within the bureaucratic hierarchy. A general interest in employee performance is not, by itself, compelling. A specific link between a public controversy and a serious breach of trust by the involved employee usually is.

What about records created after the employee left?
The AG flagged this as potentially outside the AG's FOIA review scope. Records that postdate termination may not be "employee records" at all under the FOIA's framework. They could still be public records subject to FOIA on a different basis, or they could be confidential under other Arkansas laws.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (right to seek AG opinion)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)
• Ops. Att'y Gen. 2018-060, 2014-094, 2007-070, 2007-064, 2006-035, 2003-153, 96-168
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 202-39 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2018-115
September 21, 2018
William G. Almand, Esq.
708 West 2nd Street, Suite 101
Little Rock, AR 72201

Dear Mr. Almand:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the records, 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 the Little Rock School District ("LRSD") has received a FOIA request for the personnel file of a former employee. You have attached several redacted records that LRSD has identified as being responsive to the request. You ask whether the custodian's decision to release these records 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 most of the records have been properly classified as employee-evaluation records that are subject to disclosure, as redacted. However, some records and some information contained in records may or may not be shielded from disclosure for reasons that fall outside the scope of my review and opinion under section 25-19-105(c)(3)(B)(i).

DISCUSSION

III. Application.

As I understand it, the custodian has classified the records at issue as your client's employee-evaluation records that were used to determine your client's eligibility for continued employment with LRSD. The custodian has further determined that the records should be released, as redacted. In my opinion, the custodian has properly decided that most of the records are employee-evaluation records that are subject to disclosure, as redacted. (Some of the records at issue postdate your client's termination with LRSD, which may take them out of the realm of "employee records," and thus beyond the scope of an opinion from this office under section 25-19-105(c)(3)(B)(i).)

The custodian apparently believes the four-prong test in section 25-19-105(c)(1) for the records' disclosure is met, but that certain redactions must be made. (I am not opining herein on the custodian's apparent decision not to withhold certain records and not to redact certain information contained in records that relate to your client's apparent ineligibility for continued employment with LRSD. These records and pieces of information may be confidential and thus not disclosable pursuant to other Arkansas laws. However, such a determination is beyond the scope of an opinion from this office under the FOIA.) In my opinion, the first three prongs of the test are clearly satisfied, and I lack sufficient information to challenge the custodian's decision that there is a compelling public interest in the records' disclosure.

In your letter seeking my opinion, you state that your client's "privacy interest outweighs any public interest," citing Arkansas Code section 25-19-105(b)(12). That section of the FOIA relates to "personnel records," which are shielded from disclosure "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." However, because the custodian has properly classified most of the records as employee-evaluation records and applied the four-prong test for the disclosure of those types of records, the balancing test for the disclosure of personnel records is inapposite here. (Determining whether the release of a personnel record would constitute a "clearly unwarranted invasion of personal privacy" is a balance that weighs the public's interest in accessing the records against the individual's interest in keeping them private with the scale tipped in favor of disclosure. See Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).)

In sum, I believe that the decisions of the custodian regarding the records' classification as employee-evaluation records that should be disclosed, as redacted, are mostly correct.

Sincerely,
Leslie Rutledge
Attorney General