Are employee-initiated harassment complaints exempt from Arkansas FOIA as employee-evaluation records?

Plain-English summary

The City of Little Rock received a FOIA request for harassment complaints filed against any employee in the Housing & Neighborhood Program over the prior three years. The Labor and Employee Relations Manager classified those complaints as employee-evaluation records and declined to release them, noting that the underlying conduct had not led to any suspension or termination. She asked the AG whether the call was consistent with the FOIA.

The AG declined to second-guess the classification because she had not seen any of the records. She did, however, flag a key piece of doctrine: employee-evaluation records, under Arkansas Supreme Court precedent in Thomas v. Hall, are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's job performance. Records that an employee initiates on their own, without the employer asking for them, generally do not satisfy that first prong.

If the complaints were employee-initiated rather than employer-solicited, the AG suggested they would more likely qualify as personnel records of both the complaining employee and the employee being complained about. That switches the legal test entirely. Personnel records are open under Arkansas Code Annotated § 25-19-105(b)(12) unless release would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. By contrast, employee-evaluation records are closed unless the employee was suspended or terminated, the proceeding is final, the records formed a basis for that decision, and there is a compelling public interest in disclosure.

The practical consequence in 2018 was that the custodian had to take a second look. If the complaints were unsolicited employee submissions, the no-suspension-no-termination shortcut to withholding did not apply.

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 FOIA, codified at Ark. Code Ann. § 25-19-101 et seq., presumes that records held by public entities are public unless an exception applies. The two exceptions most often involved in employment-related disputes are at § 25-19-105(b)(12) (personnel records) and § 25-19-105(c)(1) (employee-evaluation or job-performance records). Section 25-19-105(c)(3)(B)(i) gives the custodian, the requester, or the subject of the records the right to ask the AG for a written opinion on whether the custodian's release decision is consistent with the FOIA.

Personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court in Young v. Rice set the analysis: weigh the privacy interest, with the scale tipped toward disclosure; if the privacy interest is more than de minimis, weigh it against the public's interest in access. The party resisting disclosure bears the burden, per Stilley v. McBride.

Employee-evaluation records are closed by default. Release requires all four of: (1) the employee was suspended or terminated, (2) the proceeding is final, (3) the records formed a basis for the discipline, and (4) there is a compelling public interest in disclosure. The structural purpose, per the AG and the leading FOIA commentators, is to protect the candor of the formal evaluation process.

The threshold question for any harassment complaint is which exception is even on the table. The 2018 opinion's main contribution is to remind custodians that the answer turns on who created the record and why, not on the subject matter alone. Complaints generated at the employer's behest as part of an investigation can be evaluation records under the Thomas v. Hall framework. Complaints filed by an employee without the employer asking generally cannot.

Common questions

Did the AG rule that the harassment complaints had to be released?

No. The AG could not opine on any specific document because the office never sees the records, only the custodian's letter. The opinion set out the legal framework and pointed out the classification issue the custodian needed to revisit.

Why does it matter whether a record is a "personnel record" or an "evaluation record"?

Different default rules. Personnel records are open with redactions unless the privacy invasion is clearly unwarranted under Young v. Rice. Evaluation records are closed entirely unless suspension or termination has occurred, the matter is final, the records formed the basis for the decision, and there is a compelling public interest. The presumption flips depending on classification.

What is the Thomas v. Hall test for an employee-evaluation record?

A record is an employee-evaluation record only if it was (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) details the employee's performance or lack of performance on the job. All three prongs must be met. A complaint that an employee writes up on their own, without the employer asking for it, fails the first prong.

If a harassment complaint is treated as a personnel record, what is the test for disclosure?

The Young v. Rice balancing test. The custodian first asks whether the information is personal or intimate enough to give rise to a more-than-de-minimis privacy interest. If yes, the custodian weighs that privacy interest against the public's interest in disclosure, with the burden on the party resisting release. The custodian also has to redact specific items that are categorically protected: home addresses, personal contact information, dates of birth, social security numbers, banking information, marital status, medical information, and so on.

Did the AG say anything about whose privacy is at stake when an employee files a complaint about another employee?

Yes. Per a long line of AG opinions, a complaint that an employee initiates and conveys to the employer is the personnel record of both the complaining employee and the employee complained about. Both individuals' privacy interests have to be considered in the balancing test, not just the subject's.

Citations

Ark. Code Ann. §§ 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)(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; AG Ops. 2017-057, 2016-055, 2015-072, 2014-094, 2012-074, 2010-044, 2009-067, 2008-065, 2008-004, 2007-225, 2007-070, 2007-064, 2006-176, 2006-038, 2006-035, 2005-194, 2005-030, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2003-073, 2002-326, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-006, 98-001, 97-368, 97-222, 96-168, 95-351, 94-306, 94-198, 93-055; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Source

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

Original opinion text

Opinion No. 2018-133
October 15, 2018

Sheila A. Evans, Ed.D.
Labor & Employee Relations Manager
Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Evans:

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 Little Rock has received a request under the FOIA "to inspect or obtain copies of public records regarding harassment complaints made regarding any employee of the Housing & Neighborhood Program (last 3 calendar years)." You have determined that the test for disclosure you deemed was the relevant test has not been met because "these are evaluation records not subject to FOIA." You stated, additionally, that you "don't know if these documents will form the basis for suspension or termination, mainly as these are employee initiated complaints against other employees…." 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. Because I have not seen any records that would be responsive to the FOIA request, I cannot opine on whether any specific document is releasable in whole or in part. I can only set out the relevant legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. In this regard, you have determined that the requested complaints are evaluation records. I have no factual information regarding this determination, and I cannot definitively opine on the records' proper classification. But your statement that the records are "employee initiated complaints" prompts me to emphasize that a record must be created by or at the behest of the employer to qualify as an employee-evaluation record. It is your responsibility in the first instance to properly classify the responsive records and apply the applicable test for 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 seem to be met. The request was made to the City of Little Rock, 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 …."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

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 "to the extent that 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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

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 (Ops. Att'y Gen. 2014-094, 2007-070);
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license number and photocopy of driver's license (Op. Att'y Gen. 2017-125, 2013-090);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

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.

If a document meets the above definition, 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).

As for the final prong, 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.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

III. Application.

As explained above, documents created by or at the behest of the employer to evaluate an employee qualify as employee-evaluation records. And suspension or termination is a threshold requirement for the release of evaluation records. If you have correctly determined that the requested complaints are employee-evaluations, then your decision not to release them is consistent with the FOIA, given that it seems there has been no suspension or termination decision as a result of any complaint.

Because I have not reviewed the requested complaints at issue, and I have no factual information regarding their creation, I cannot definitively opine on whether your decision to classify them as employee-evaluations is consistent with the FOIA. However, your statement that the records are "employee initiated complaints" prompts me to note that if a complaint is unsolicited by the employer, it is not an employee-evaluation record. Rather, as this office has consistently stated, it is the personnel record of both the complaining employee and the employee being complained about. In that case, the inquiry turns to whether the complaint's release would constitute a clearly unwarranted invasion of the personal privacy of either the complainant or the employee who is the subject of the complaint. (See the discussion above regarding personnel records.)

In sum, because I have not seen any records that would be responsive to the FOIA request, I cannot opine on whether any specific document is releasable in whole or in part. As the custodian, you must properly classify the responsive records and apply the appropriate test for disclosure based on the legal standards set out above.

Sincerely,
LESLIE RUTLEDGE
Attorney General