When an Arkansas school district investigates and suspends an employee for misconduct involving a student, can the district withhold the investigative records by saying there's no compelling public interest?

Plain-English summary

Jeremy Lasiter, the Bryant Public School District's Director of Human Resources and Legal Affairs, asked the AG to review his decision as records custodian. The District had received a FOIA request for investigative records about a District employee who was suspended without pay following the investigation. Lasiter classified the records as employee-evaluation records under § 25-19-105(c)(1), determined the level-of-discipline, finality, and basis prongs were met, but concluded he could not find a "compelling public interest" in disclosure. He withheld the records.

The AG disagreed on the compelling-public-interest prong.

Classification was correct. Under Thomas v. Hall, 2012 Ark. 66, employee-evaluation records are those (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance. Records generated during an internal investigation of alleged misconduct that detail the incidents giving rise to the allegation are within the exception. The District's investigation was at the Superintendent's direction, so the classification was correct.

Three of the four release elements were met.

• Level of discipline: yes (suspension).
• Finality: yes.
• Basis: the records reflected the conduct underlying the suspension.

The compelling-public-interest prong was the contested one. Lasiter argued there was none, because the employee held no leadership role and the conduct involved a single student. The AG rejected that argument:

The activities of teachers and other public school employees are of particular import, especially when students are directly affected... The position of the employee... is akin to that of a teacher because of the trust and authority and regular student interaction. And because the conduct for which the employee was disciplined occurred during school hours and directly affected a student, [Lasiter is] unlikely to prevail in claiming that there is no compelling public interest.

The AG cited a line of opinions (Ops. 2013-104, 2007-061, 2005-236, 2018-104, 2014-121, 2001-146) that recognize the public's interest in school employee misconduct as "heightened" and "particularly compelling," especially when student safety is implicated.

Bottom line. Likely all four prongs met; the records likely must be released. Lasiter still had to review each individual document for releasability and apply standard redactions for personal contact information, dates of birth, Social Security numbers, medical info, and similar items.

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.

Common questions

Q: What is "compelling public interest" in Arkansas FOIA?
A: The phrase comes from § 25-19-105(c)(1) and is the fourth prong of the test for releasing employee-evaluation records. The leading FOIA treatise (Watkins, Peltz-Steele & Steinbuch) and AG opinions identify three factors: (1) nature of the infraction (especially public-trust violations or gross incompetence), (2) existence of a public controversy, (3) employee's position. A general interest in public-employee performance is not enough; a specific link between conduct and harm strengthens the case.

Q: Why does conduct involving students get special treatment?
A: Because the AG (and the cases) recognize a "heightened" or "particularly compelling" public interest when school employees in positions of trust act in ways that affect students. The reasoning is institutional: schools occupy a unique relationship to children's safety and the public has a corresponding interest in transparency about misconduct.

Q: The employee held no leadership role. Why does it still trigger the public-interest analysis?
A: The AG's reasoning is that position of trust, not formal leadership, drives the analysis. A bus driver, a paraprofessional, a coach, or a custodian who interacts regularly with students holds a position of trust, and misconduct affecting a student is the same kind of harm regardless of the employee's title.

Q: Does this mean every school misconduct investigation is automatically releasable?
A: No. The AG carefully said the conduct in this case "occurred during school hours and directly affected a student." If the alleged misconduct was about something else (financial impropriety, off-duty personal conduct), the analysis would shift. The student-affecting nature of the conduct is what makes the public interest compelling.

Q: What about the absence of a public controversy?
A: The AG cited Op. 2016-117 for the proposition that "[t]he absence of a public controversy may be of minimal significance" when the case involves school employee misconduct affecting students. The student-trust factor can carry the day even without media attention or public outcry.

Q: Did the AG order the records released?
A: The opinion is advisory. The AG concluded that release was likely required. Lasiter still had to make the actual decision and apply redactions. If he disagreed, the requester could pursue judicial review under § 25-19-107.

Background and statutory framework

The four-prong test for releasing employee-evaluation records under § 25-19-105(c)(1) requires all of:

1. Suspension or termination;
2. Final administrative resolution;
3. Records formed a basis for the discipline;
4. Compelling public interest in disclosure.

For element (4), the Watkins/Peltz-Steele/Steinbuch treatise (6th ed. 2017) at 238-39 supplies the three factors: nature of infraction, public controversy, employee position. The AG and prior case law have refined this framework.

The school-employee gloss has been consistent across many opinions:

• Op. 2013-104, Op. 2007-061: heightened interest when students are affected.
• Op. 2005-236: "the public's interest in school employee misconduct affecting students is 'heightened' and 'particularly compelling.'"
• Ops. 2018-104, 2014-121: public has a particularly heightened interest in conduct of school teachers and authorities during school hours, school events, and especially when students are affected.
• Op. 2016-117: absence of public controversy may be of minimal significance in school cases.
• Ops. 2013-104, 2001-146: the position-of-trust principle.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. §§ 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception, four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG-opinion review procedure)
• 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

Source

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

Original opinion text

Opinion No. 2019-042
June 7, 2019

Jeremy Lasiter, Director of Human Resources and Legal Affairs
Bryant Public School District
200 NW Fourth Street
Bryant, AR 72022

Dear Mr. Lasiter:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of records, 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 Bryant Public School District ("District") has received a FOIA request for investigative records pertaining to a District employee. The employee was suspended without pay as a result of the investigation. Attached to your request for my opinion are un-redacted records that you have identified as responsive to the FOIA request. You have determined that the records are job-performance records, and you state that you have decided they are exempt from disclosure because you cannot conclude that a compelling public interest exists in their disclosure.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, your decision that the records are exempt from disclosure under the employee-evaluation exception is likely inconsistent with the FOIA. As a general matter, you have properly classified the records as job-performance records. But in my opinion, the public in all likelihood has a compelling interest in the disclosure of the records that formed the basis for the decision to suspend the employee.

I will set out the applicable definitions and standards, but this opinion is limited to a review of the decision before me involving your determination that there is no compelling public interest in disclosure. As the custodian, you must review each record to decide whether it is subject to release under the applicable test and whether any redactions are required.

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 District, 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 ...." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

As I understand it, all the attached documents were created or collected during an internal investigation conducted by the District. Accordingly, in my opinion, the documents reflect the performance or lack of performance of official functions. The documents, therefore, are public records and must be disclosed unless some specific exception provides otherwise.

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.

You have stated that the records in question were created at the direction of the Superintendent in the course of investigating an allegation of employee misconduct. As noted above, such records are generally properly classified as employee-evaluation records when they detail incidents that gave rise to the allegation of misconduct. Having reviewed the records, and based on the information provided regarding their creation, it is my opinion that your decision to classify them as employee-evaluation records is generally consistent with the FOIA.

As employee-evaluation records, the records cannot be released unless all four elements listed above are met. It appears clear that the level-of-discipline and finality elements have been met. Regarding the "formed a basis" element, this is generally interpreted to mean that the records in question reflect or detail the incidents or conduct that led to the suspension (or termination). You state that you have determined that the records at issue in fact formed the basis for the suspension, and that determination appears consistent upon the face of the records.

The inquiry, therefore, turns to the compelling-interest element. The existence of a "compelling public interest" in disclosure will necessarily depend upon all of the surrounding facts and circumstances. Although I cannot undertake this factual review, I will note that the issue in this instance involves actions undertaken in a public-school context. This office has repeatedly opined that the activities of teachers and other public school employees are of particular import, especially when students are directly affected. The absence of a public controversy may be of minimal significance in such cases. Many of these opinions involved teachers and school officials in significant positions of authority. But the principal reason for the view this office has expressed is the position of trust held by the employee whose conduct directly affected a student.

In this case, you cite the position of the employee (who holds no leadership role), together with the fact that the alleged conduct involved one student, as the basis for your stated inability to find a compelling public interest in disclosure. For purposes of the compelling-interest element, however, I believe the employee's position is akin to that of a teacher because of the trust and authority and regular student interaction. And because the conduct for which the employee was disciplined occurred during school hours and directly affected a student, I believe you are unlikely to prevail in claiming that there is no compelling public interest.

Therefore, it is my opinion that all of the conditions for the release of the records are likely met in this case. As the custodian of the records, however, you must review each individual record in detail to determine whether it is subject to release under the applicable test and whether any redactions are required.

Sincerely,

LESLIE RUTLEDGE
Attorney General