Is a school district's decision to withhold employee-evaluation records under the Arkansas FOIA proper when the employee was never suspended or terminated?

Plain-English summary

The North Little Rock School District (NLRSD) received a FOIA request for certain records concerning a school district employee. Cheryl Reinhart, the district's HR Executive Director, classified the records as employee-evaluation records and decided to withhold them because the threshold level-of-discipline requirement (suspension or termination) was not met. She asked the AG to confirm her decision was consistent with FOIA.

Attorney General Leslie Rutledge confirmed the decision. The classification as employee-evaluation records was correct on the face of the records. The four-part Thomas v. Hall test for releasing evaluation records includes a threshold requirement of suspension or termination, and "[a]lthough I cannot resolve disputes regarding the validity and/or effectiveness of a suspension or termination decision, I believe it is readily apparent that this threshold requirement is not met with respect to the requested records in this instance."

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 the cleanest application of the four-part test (as of 2019)

The four-part Thomas v. Hall test for releasing employee-evaluation records:

1. The employee was suspended or terminated.
2. Final administrative resolution.
3. The records formed the basis for the discipline.
4. Compelling public interest.

These prongs are sequential. If prong 1 fails, the analysis stops. NLRSD told the AG that the employee had not been suspended or terminated, and the AG concluded that was "readily apparent" from the records. With prong 1 unmet, the records cannot be released. No need to analyze the other three prongs.

This pattern is common: a FOIA requester asks for records about a school district employee who was the subject of an internal investigation but was never disciplined to the suspension or termination level. Under the AG's framework, those records are evaluation records and cannot be released, period.

What this opinion does not say

It does not say the records would be releasable if the employee had been suspended or terminated. The other three prongs (finality, basis, compelling public interest) would still need to be satisfied. The opinion just says that prong 1 alone disposes of the case.

It does not address whether the records contain any portions classifiable as personnel records (for which the Young v. Rice balancing test would apply). The custodian's classification as evaluation records appeared to cover the entire request, and the AG accepted that classification.

Why the custodian sought confirmation

Withholding records under FOIA is procedurally riskier than releasing them. A FOIA requester who is denied can sue. A subject who objects to release can ask the AG to review under § 25-19-109(c)(3)(B)(i). Custodians often seek AG opinions before withholding to ensure the withholding decision is defensible.

Common questions

Q: When can a public employer withhold employee-evaluation records?
A: Under § 25-19-105(c)(1) and Thomas v. Hall, when at least one of the four prongs (suspension/termination, finality, basis, compelling public interest) is not met. The most common defeat is the level-of-discipline threshold: if the employee was not suspended or terminated, the records cannot be released as evaluation records.

Q: What if the employee was disciplined at a lower level (e.g., a written warning)?
A: Per the AG's framework, written warnings, oral reprimands, performance improvement plans, and similar lesser discipline do not satisfy the level-of-discipline requirement. Only suspension or termination triggers the four-part test for release.

Q: Could the requester sue to force release?
A: A requester who is denied could file a FOIA suit. The court would apply the same statutory framework. If the level-of-discipline element is clearly unmet, the suit would likely fail.

Q: What if the records also contain personnel information?
A: Personnel records and evaluation records are distinct categories. If a single document contains both, the custodian must classify each portion and apply the right test. Personnel-records portions might be releasable under the Young v. Rice balancing test even when evaluation-records portions are not.

Background and statutory framework

This opinion applies the four-part Thomas v. Hall test to a clean fact pattern: NLRSD's employee was not suspended or terminated, so the threshold level-of-discipline element fails. The framework is identical to companion 2019 FOIA opinions (Ops. Att'y Gen. 2019-022, 2019-028, 2019-030, 2019-031).

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)(B)(i) (AG opinion procedure)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records

Related AG opinions:

• Op. Att'y Gen. 2019-022 (level-of-discipline disputed; AG cannot resolve)
• Op. Att'y Gen. 2012-077 (custodian decides effectiveness of discipline)
• Op. Att'y Gen. 2008-065 (four-part test articulated)
• 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. 2019-024
March 21, 2019

Cheryl L. Reinhart, Executive Director
Human Resources
North Little Rock School District
2700 N. Poplar Street
North Little Rock, AR 72114

Dear Ms. Reinhart:

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 North Little Rock School District ("NLRSD") has received a request under the FOIA for certain records concerning a school district employee. As the records custodian, you have determined that the requested records are employee-evaluation records. You have further determined that the records are exempt from disclosure under Ark. Code Ann. § 25-19-105(c)(1) because the level-of-discipline requirement for the release of employee-evaluation records is not met.

You ask whether your decision to withhold the records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, your decision to withhold the requested records is consistent with the FOIA. You have properly classified the records as employee-evaluation records. And based on the information before me, your decision to withhold the records is consistent with the FOIA because it appears clear the threshold, so-called level-of-discipline, requirement for the release of employee-evaluation records is not met.

[Standard FOIA framework, focused on the employee-evaluation exception under § 25-19-105(c)(1) and the four-part test from Thomas v. Hall. See companion Ops. Att'y Gen. 2019-028, 2019-030, 2019-031 for the full framework.]

III. Application.

As reflected by the above test, records that were created by (or at the behest of) the employer and that detail the employee's performance or lack of performance on the job are properly classified as employee-evaluation records. Applying this test, it is my opinion, based on the face of the requested records at issue, that your decision to classify the records as employee-evaluation records is consistent with the FOIA.

As also reflected by the above test, suspension or termination is a threshold requirement for the release of an employee-evaluation record. This is the so-called "level-of-discipline" requirement. Although I cannot resolve disputes regarding the validity and/or effectiveness of a suspension or termination decision, I believe it is readily apparent that this threshold requirement is not met with respect to the requested records in this instance.

In sum, it is my opinion, based on the face of the records and the other information before me, that your decision to withhold the requested records is consistent with the FOIA.

Sincerely,

Leslie Rutledge
Attorney General