When the records custodian is unsure whether a UAMS research-misconduct report is a personnel or evaluation record, can the AG opine on whether the FOIA release is proper?

Plain-English summary

The University of Arkansas for Medical Sciences (UAMS) received a FOIA request for "the final report from the UAMS Office of Research Compliance as delivered to Fusun Kilic, formerly a UAMS professor, ... on Oct. 2, 2018." The records custodian determined the report was subject to release. Dr. Kilic, the subject of the report, objected on three grounds: that such reports are "strictly confidential under UAMS and federal law related to research misconduct"; that release would be an unwarranted invasion of privacy; and that she was never disciplined, suspended, or terminated, and resigned of her own volition.

Attorney General Leslie Rutledge declined to issue a substantive opinion. Her statutory review under § 25-19-105(c)(3)(B)(i) is contingent on the custodian first classifying the record as either a personnel record or an employee-evaluation record. UAMS's custodian had sent mixed signals: the email forwarding the FOIA request to Dr. Kilic stated that "[u]nder certain circumstances, employees have the right to challenge the release of records under the FOIA by requesting an opinion from the Arkansas Attorney General. I do not believe that this type of report requires providing you such notice but am doing so out of an abundance of caution." That language combined the procedural step that follows a personnel/evaluation classification with an assertion that no such classification applied. The AG could not resolve that ambiguity and could not act as a fact-finder on the threshold question.

The AG also flagged in a footnote that whether a record is exempt under federal law is outside her FOIA review and should be addressed by the custodian, perhaps with input from counsel.

Currency note

This opinion was issued in 2019. 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.

Historical context

Why this is a "threshold" case (as of 2019)

Section 25-19-105(c)(3)(A) requires the custodian, on receiving a request for personnel or evaluation records, to determine within 24 hours whether the records are exempt from disclosure. Section 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject the right to seek an AG opinion on whether the custodian's release decision is consistent with FOIA. Both procedures presuppose the custodian has classified the record. If the custodian has not, the AG cannot run her review.

Here, UAMS's custodian sent Kilic the formal subject-notice email but added a sentence saying she did not believe "this type of report requires providing you such notice." That is a contradiction. Either the report is the kind that triggers notice (because it is a personnel or evaluation record) or it is not. The custodian needed to pick a lane.

What Kilic argued, and how each argument would have come out under the framework

Argument 1: Federal confidentiality. Whether the report is exempt under federal research-misconduct rules is outside FOIA review under § 25-19-105(c)(3)(B)(i). The AG flagged this and pointed Kilic to the custodian and to counsel.

Argument 2: Unwarranted invasion of privacy. This is the personnel-records standard under Young v. Rice. If the record is a personnel record, the balancing test would apply. The AG laid out the framework but did not run the balance because the custodian had not made the personnel-records classification.

Argument 3: She resigned, was never disciplined. This is the level-of-discipline issue. If the record is an employee-evaluation record, the four-part Thomas v. Hall test requires suspension or termination. Resignation defeats the threshold. The AG laid out the framework and noted the implication, but again, the custodian had not classified the report as an evaluation record.

What the custodian needed to do

The custodian had to make a clean classification decision. Three possibilities:

1. Personnel record. Apply Young v. Rice balancing. Possibly release, with mandatory redactions.
2. Employee-evaluation record. Apply the four-part Thomas v. Hall test. If Kilic resigned and was not disciplined, the level-of-discipline prong fails and the report cannot be released as an evaluation record.
3. Neither. The report is something else (a research-misconduct finding, perhaps, regulated by federal grant rules and state policy). In that case, the analysis is different and the AG opinion procedure under § 25-19-105(c)(3)(B)(i) does not directly apply.

The custodian's email tried to occupy two of these positions simultaneously, which broke the procedural framework.

Common questions

Q: Why couldn't the AG just opine on whether the report should be released?
A: Because § 25-19-105(c)(3)(B)(i) only authorizes AG review of a custodian's classification-and-release decision. If the custodian has not made a classification decision, there is nothing for the AG to review.

Q: Are research-misconduct reports automatically exempt under federal law?
A: That is outside the AG's FOIA review under this statute. The custodian and the agency's lawyers have to evaluate federal grant-related confidentiality rules and any specific federal regulations governing research-misconduct findings.

Q: If Kilic resigned, can the report be released as an evaluation record?
A: Per the four-part Thomas v. Hall test, if she was never suspended or terminated, the level-of-discipline prong fails. The report cannot be released as an evaluation record. Whether it can be released as a personnel record depends on the Young v. Rice balancing.

Q: What if the custodian comes back with a clean classification later?
A: The subject can submit a new request to the AG under § 25-19-105(c)(3)(B)(i) once the custodian has made the threshold determination. The AG would then review.

Background and statutory framework

This opinion applies the standard FOIA framework but turns on a procedural threshold: the custodian must classify the record before the AG can review. The framework parallels Ops. Att'y Gen. 2019-028, 2019-030, and 2019-031, but the disposition here is different because the custodian's classification was unclear.

Federal confidentiality rules (which were not analyzed in this opinion) might independently exempt research-misconduct findings from disclosure. Anyone advising on a similar situation today should look at the Public Health Service / NIH research-misconduct procedures (42 C.F.R. Part 93) and any specific federal grant agreements.

Citations and references

Statutes:

• 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(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(A) (custodian must determine exemption status within 24 hours)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), Ark. Supreme Court, balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), Ark. Supreme Court, burden on resisting party

Related AG opinions:

• Op. Att'y Gen. 2019-026 (similar threshold-classification problem)
• Op. Att'y Gen. 2019-028, 2019-030, 2019-031 (companion FOIA personnel/evaluation opinions)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-023
March 19, 2019

Fusun Kilic, Ph.D.
c/o Leslie Taylor, Vice Chancellor
Office of Communications & Marketing
University of Arkansas for Medical Sciences
4301 W. Markham, #890
Little Rock, AR 72205-7199

Dear Dr. Kilic:

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).

Your correspondence indicates that the University of Arkansas for Medical Sciences ("UAMS") has received a request under the FOIA for "the final report from the UAMS Office of Research Compliance as delivered to Fusun Kilic, formerly a UAMS professor, ... on Oct. 2, 2018." The records custodian has determined that the report is subject to release under the FOIA. You object to release of the report alleging that you were told that such reports are "strictly confidential under UAMS and federal law related to research misconduct." You further cite an "unwarranted invasion of privacy that would subject [you] and your family members to embarrassment and threaten [your] future employments." You go on to state that you were never disciplined, suspended, or terminated from UAMS; you also state that your resignation was not the result of any negotiations with UAMS, but done on your own volition.

RESPONSE

My statutory duty is to state whether the custodian's decision regarding the release of personnel or employee-evaluation records is consistent with the FOIA. That duty is contingent upon the custodian having first determined that the record at issue is, in fact, either a personnel or an employee-evaluation record. It is not apparent in this instance that the custodian has made this threshold determination. Accordingly, my statutory review under the FOIA has not been triggered.

[Standard FOIA framework: personnel records under § 25-19-105(b)(12), employee-evaluation records under § 25-19-105(c)(1), the Young v. Rice balancing test, the four-part Thomas v. Hall evaluation-records test, and the mandatory redactions list.]

III. Application.

My duty under the FOIA to issue an opinion is only triggered if, as a threshold matter, a custodian has decided that the record(s) in question is either a personnel or an employee-evaluation record based on the above definitions. It is not apparent in this case that the custodian has made this threshold decision.

In an email sent to you on March 12, 2019, the custodian of records for UAMS wrote the following (emphasis added):

Under certain circumstances, employees have the right to challenge the release of records under the FOIA by requesting an opinion from the Arkansas Attorney General. I do not believe that this type of report requires providing you such notice but am doing so out of an abundance of caution.

The quoted excerpt, at best, creates substantial ambiguity as to whether the custodian believes the record at issue falls within the scope of an Attorney General opinion. On the one hand, providing you notice of the FOIA request, standing alone, seems to suggest that the custodian has determined that the report is either a personnel or an employee-evaluation record. On the other hand, in the emphasized sentence, the custodian expressly states her view that the record at issue is not the "type of report" that requires providing notice. This statement indicates that the custodian does not believe that the record constitutes either your personnel or your employee-evaluation record.

I cannot act as a factfinder in issuing opinions. I, therefore, cannot resolve the custodian's apparent ambivalence in this case on the threshold question of whether the record qualifies as the type of record that falls within the scope of my review. My review under the FOIA is only triggered if a custodian has made a determination that (1) a record is either a personnel or employee-evaluation record, and (2) the applicable test requires it to either be disclosed or withheld. Because of the fundamental ambiguity as to the custodian's position regarding the record at issue in this case, I am unable to render an opinion, pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i), on whether the custodian's decision is consistent with the FOIA.

One of your stated objections to the report's release is that you were told that the report is "strictly confidential under ... federal law ...." Whether a particular record is exempt from disclosure under federal law is a question that is beyond the scope of my review under section 25-19-105(c)(3)(B)(i). That type of question must be addressed by the custodian, perhaps with input from counsel to whom he or she ordinarily looks for advice.

Sincerely,

Leslie Rutledge
Attorney General