When the custodian asks the AG to decide whether interview statements are an employee's personnel record or another employee's evaluation record, can the AG make that classification?

Plain-English summary

Sean Nadji, the City of Little Rock's FOIA Coordinator, asked the AG three questions about an active internal harassment investigation:

1. The complainant in the investigation had submitted a FOIA request for "the statements of an interviewee" taken during the still-open misconduct case. The custodian withheld the statements. Was that withholding consistent with FOIA?
2. Should the statements be maintained in the complainant's personnel file or the interviewee's file?
3. Do documents created during an agency investigation become subject to disclosure after the investigation is closed?

Attorney General Leslie Rutledge could not answer any of them as a formal AG opinion. Question 1 required AG review under § 25-19-105(c)(3)(B)(i), which is contingent on the custodian first classifying a record as either a personnel or an employee-evaluation record. Nadji's letter acknowledged uncertainty: he asked the AG to determine whether the statements were the complainant's personnel records or the interviewee's evaluation records. The AG cannot make that threshold classification for the custodian. Questions 2 and 3 were outside her FOIA-review authority and outside her general statutory opinion authority under § 25-16-706 (which limits opinions to specific officials and county election commissions). Nadji had to direct those questions to his city attorney.

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

The procedural mismatch (as of 2019)

The complainant in an internal harassment investigation requested the statements of an interviewee. That triggered three classification questions:

• Are the interview statements the complainant's personnel records? (Probably not, since the complainant was not interviewed in this part.)
• Are they the interviewee's evaluation or personnel records? (Probably yes for evaluation, since the records were generated to evaluate someone, possibly the alleged harasser.)
• Are they pure investigation records, separate from any one employee's file?

The custodian's framing of the question to the AG indicated indecision: "the witness testimony 'may be considered a component of evaluation records that ... have not resulted in the suspension or termination of said employee.'" That is a hedge, not a classification. The AG could not run her review without a definitive classification.

Why the AG cannot answer ancillary policy questions

Section 25-19-105(c)(3)(B)(i) authorizes the AG to opine on a custodian's specific release decision regarding personnel or evaluation records. It does not authorize the AG to opine on:

• File-organization questions (which file should hold which document).
• Post-investigation disclosure timing.
• Other general FOIA-policy questions.

Nadji's general AG-opinion authority under § 25-16-706 is also limited. That provision authorizes the AG to issue opinions on requests from specific state officials and county election commissioners. A municipal FOIA coordinator is not on the list. The AG had to refer Nadji to his city attorney.

What might have happened next

The custodian likely had to:

1. Decide which classification each interview statement falls into. If the statements detail the alleged harasser's conduct, they are likely the harasser's evaluation records under Thomas v. Hall.
2. Apply the four-part test for evaluation records. If the alleged harasser had not been suspended or terminated, the level-of-discipline prong fails and the statements are not releasable.
3. If part of a statement is the complainant's own narrative of the events, that part might be the complainant's personnel record under Young v. Rice. The custodian would need to apply the balancing test to that subset.
4. Document the classifications and the test outcomes, because subsequent litigation often turns on whether the custodian made a defensible record.

A practical note about ongoing investigations

The custodian withheld the statements while the investigation was still open. That is a sensible default: releasing witness statements during an active investigation can chill cooperation, expose witnesses to retaliation, and contaminate the fact-finding. Whether the statements become releasable after the investigation closes depends on the same four-part test. If the investigation does not result in suspension or termination, the evaluation-records prong fails and the statements remain protected as evaluation records.

Common questions

Q: When can a complainant in an internal investigation see witness statements about themselves?
A: It depends on classification. If the statements are the complainant's own personnel records, Young v. Rice balancing applies. If they are the alleged wrongdoer's evaluation records, the four-part test applies (and the complainant gets no preference, the test is the same as for any other requester). The custodian must classify each statement.

Q: Can the AG decide whether documents are personnel records or evaluation records?
A: No. That threshold classification is the custodian's decision. The AG reviews the custodian's release decision after classification, not before.

Q: Where should witness statements live in a city's records system?
A: That is a records-management policy question, not a FOIA-classification question. The AG's FOIA review does not extend to records-management policy. The custodian and the city attorney decide.

Q: Are documents released automatically once an investigation closes?
A: No. The same four-part test applies after the investigation closes. If the investigation did not result in suspension or termination, the level-of-discipline prong is unmet and the records cannot be released as evaluation records, regardless of the investigation's status.

Q: Why doesn't the AG just answer general policy questions about records management?
A: Because the AG's authority to issue opinions is limited by statute. Under § 25-19-105(c)(3)(B)(i), AG review is limited to specific custodian decisions. Under § 25-16-706, general AG opinions are limited to specific state officials and county election commissioners. A municipal FOIA coordinator is not on either list.

Background and statutory framework

This opinion combines several procedural rules:

• § 25-19-105(c)(3)(A): custodian must determine within 24 hours whether records are exempt.
• § 25-19-105(c)(3)(B)(i): AG review is contingent on custodian classification and release decision.
• § 25-16-706: general AG opinion authority is limited to specific officials.

The functional result: when a custodian is undecided about classification, the AG opinion procedure cannot run. The custodian must decide, then ask the AG to review.

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) (24-hour custodian determination)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-16-706 (general AG opinion authority)

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

Related AG opinions:

• Op. Att'y Gen. 2019-023 (similar threshold-classification problem)
• Op. Att'y Gen. 2019-028, 2019-030, 2019-031 (companion FOIA personnel/evaluation opinions)
• Op. Att'y Gen. 2016-073, 2016-054 (AG cannot act as factfinder)

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. 2019-026
April 1, 2019

Sean Nadji, FOIA Coordinator
City of Little Rock, Human Resources
500 W. Markham, Suite 130W
Little Rock, AR 72201

Dear Mr. Nadji:

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 the City of Little Rock has received a FOIA request from a City employee for "the statements of an interviewee ... that were taken during a still open employee misconduct case." According to your letter, the requesting employee is the complainant ("Complainant") in an ongoing internal harassment investigation. The Complainant contends that the interviewee's statements made to the investigator are "part of [the Complainant's] personal [sic] file" and as such are accessible by the Complainant.

You further state that the witness testimony "may be considered a component of evaluation records that ... have not resulted in the suspension or termination of said employee" (emphasis added). The custodian of records has determined that the Complainant is not entitled to receive a copy of these statements during an active internal investigation. Your cover letter also expresses uncertainty as to whether the statements at issue should be maintained in the Complainant's personnel file or the file of the interviewee. You seek clarity on the above-referenced issues and also ask whether documents created in an agency investigation become subject to disclosure after the investigation is closed.

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 classified the record at issue as either a personnel or an employee-evaluation record. Based on your request for my opinion, it appears that the custodian has not made this threshold determination in this instance, but is instead asking me to make that determination. This is not a decision I am authorized to consider or make for the custodian pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i). Accordingly, my statutory review under the FOIA has not been triggered.

Your other two questions, in whose personnel file the statements at issue should be maintained, and whether documents created during an agency investigation become subject to disclosure after the investigation is closed, should be directed to your city attorney for counsel. Answering questions of this nature are beyond the scope of my authority under the FOIA.

[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. Based on your request for my opinion in this matter, it is not apparent that the custodian has made this threshold decision. Instead, the request evinces equivocation and indecision by the custodian as to whether the record at issue, which was not provided for my review, is the personnel record of the Complainant or the evaluation record of the employee who is the subject of the internal investigation.

I cannot act as a factfinder in issuing opinions. Nor is this office authorized by the FOIA to make threshold decisions for the custodian. My statutory review under the FOIA is to state whether or not the custodian's decisions are consistent with the FOIA. Because the custodian in this instance does not appear to have made the requisite decisions with respect to the record at issue, based upon the opinion request before me, my statutory mandate under section 25-19-105(c)(3)(B)(i) has not been triggered. I am thus unable to render an opinion in this instance.

Finally, your other two questions, that is, in whose personnel file the statements at issue should be maintained, and whether documents created during an agency investigation become subject to disclosure after the investigation is closed, should be directed to your city attorney for counsel. Answering questions of this general nature are beyond the scope of my authority under the FOIA. Neither am I authorized to opine on these questions under my general statutory mandate to issue opinions upon request. See Ark. Code Ann. § 25-16-706 (Repl. 2014). That authority is limited to opinion requests from specific state officials or county boards of election commissioners. Id. at § 25-16-706(a)-(b).

Sincerely,

Leslie Rutledge
Attorney General