Can a former Arkansas school employee block release of his personnel file when an FOIA requester asks for grievances, suspension letters, and termination records?

Plain-English summary

The Pulaski County Special School District received a FOIA request for the personnel file of former employee Brent S. Mitchell, including grievances, investigations, suspension letters, and termination/resignation letters. The custodian determined that some of the records were subject to disclosure and others were not, but did not specifically identify which were which when forwarding the matter to the AG.

Mitchell objected and asked the AG, as the records subject under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), to review whether the custodian's release decision was consistent with the FOIA.

The AG could not give a definitive answer. Without the actual records to review, the AG could not say which documents were personnel records (subject to the privacy-balancing test) and which were employee-evaluation records (subject to the four-prong test). What the AG could and did say:

1. The records are public records. They were held by a public entity (PCSSD) and presumed public under § 25-19-103(7)(A).
2. Mitchell's objections are not sufficient reasons to withhold. Invasion of privacy claims must run through the Young v. Rice balancing test (privacy interest is not just whatever the records subject feels). And there is no general "harassment exception" in the FOIA. Requester motive is generally irrelevant.
3. The custodian must classify each record carefully. Personnel records and employee-evaluation records get different tests. Once classified, the custodian applies the right test.
4. Standard redactions still apply. Even when a document overall is releasable, certain items must be redacted (personal contact info, SSN, DOB, medical info, etc.).

The opinion is procedural rather than substantive. It tells the custodian and the records subject what framework to apply once the actual records are examined.

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: Why did the AG decline to opine specifically when many similar cases get definitive answers?
A: The AG saw no records. The standard procedure under § 25-19-105(c)(3)(B)(i) is for the custodian to forward the proposed-release records to the AG for review. Here, "the custodian has not specifically identified any of the records she plans to withhold or disclose." Without the documents, the AG cannot run the Young v. Rice balancing test or the four-prong evaluation-records test. The AG can only set out the legal framework for the custodian to apply.

Q: What's special about a "former" employee?
A: Nothing for FOIA purposes. The opinion explicitly cites Op. Att'y Gen. 2016-023: records normally maintained in an employee's personnel file remain subject to FOIA "even after the employee leaves a public agency." Leaving employment does not pull records out of the public-records framework.

Q: What types of records typically appear in a school district personnel file?
A: The opinion lists them: employment applications, school transcripts, payroll records (reclassifications, promotions, demotions), transfer records, health and life insurance forms, performance evaluations, recommendation letters, disciplinary-action records, leave requests, certificates of advanced training, legal documents like subpoenas. Each one needs to be classified individually.

Q: When are evaluation records actually releasable?
A: All four conditions must be met: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution of that suspension or termination; (3) the records formed a basis for the discipline decision; and (4) there is a "compelling public interest" in disclosure. The opinion notes that "compelling public interest" is itself a high bar that turns on the nature of the infraction (especially breaches of public trust or gross incompetence), the existence of a related public controversy, and the employee's position within the agency.

Q: Are investigation records always evaluation records?
A: No, but they often are when the investigation pertains to alleged employee misconduct. Thomas v. Hall, 2012 Ark. 66, recognized that records generated while investigating misconduct that detail the incidents giving rise to the allegation fall within the evaluation-records exception. The classification still has to be made document by document.

Q: What happens after this opinion in practice?
A: The custodian uses the framework to classify each responsive record, applies the appropriate test, and then makes a release determination. If Mitchell remained dissatisfied, the next step would typically be a court proceeding under § 25-19-107 for judicial review.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) lets three categories of people request an AG opinion on a custodian's release decision: the custodian, the requester, or the records subject. Mitchell, as the subject, was within the third category.

Section 25-19-103(7)(A) defines "public record" broadly. The presumption that public-office records are public records is rebuttable, but it is the starting point.

The FOIA recognizes two main employment-record exceptions:

• (b)(12) personnel records. Disclosable except to the extent disclosure would constitute "a clearly unwarranted invasion of personal privacy."
• (c)(1) employee-evaluation or job-performance records. Open only on the four-prong test.

The classification matters enormously because the tests are very different. The Arkansas Supreme Court adopted the AG office's three-element definition of evaluation records in Thomas v. Hall, 2012 Ark. 66: 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.

For personnel records, the Young v. Rice two-step balancing test controls. The records subject bears the burden under Stilley v. McBride, 332 Ark. 306 (1998), and the test is objective, not subjective.

The "compelling public interest" prong of the (c)(1) test is the AG-recognized factor list from the leading FOIA treatise: nature of the infraction (especially public-trust violations or gross incompetence), public controversy, and employee position.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer redaction)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• 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. 2019-048
July 12, 2019

Brent S. Mitchell
c/o Alana Jill Clark
Communications Legal Associate
Pulaski County Special School District
925 East Dixon Road
Little Rock, AR 72206

Dear Mr. Mitchell:

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 your former employer, the Pulaski County Special School District (PCSSD), has received a request under the FOIA for your personnel file, including grievances, investigations, letters of suspension, and letters of termination/resignation. The custodian has determined that the requested records are subject to disclosure in part, while other requested records are not subject to disclosure and considered exempt under the act. The custodian has not specifically identified any of the records she plans to withhold or disclose. You object to the release of any records from your personnel file, stating that disclosure would be an "unwarranted invasion of privacy." You also state that you have no connection to the requester, and that the requester is "basically harassing" you. You ask whether the custodian's release 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 the custodian has determined to be responsive to the FOIA request, I cannot specifically opine about whether the records, or any specific record, must be disclosed or withheld, or whether any specific item of information from an otherwise releasable document should be redacted. Accordingly, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, 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 PCSSD, which is a public entity subject to the FOIA. Moreover, 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 … ." Additionally, "[a]ll records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records."

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 considering 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.

When dealing with employment-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) if so, whether, under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure discussed above. Because I have not seen the records at issue in this instance, I cannot definitively opine about either of these determinations.

Moreover, I do not believe that your stated objections to the records' release would, as a general matter, be legally sufficient reasons to withhold records that are subject to disclosure under the FOIA. First, as to your objection that the release of the records is an "unwarranted invasion" of your privacy, please remember that personnel records of public employees, active or former, are subject to disclosure except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Thus, as to your personnel records, the custodian must apply the balancing test for personnel records discussed above by determining (1) whether information on the records gives rise to a greater than de minimis privacy interest, and (2) whether that interest outweighs the public's interest in disclosure, keeping in mind that the balancing test is weighted in favor of disclosure. As the subject of the records, you bear the burden of showing that your privacy interest is greater than the public's interest in disclosure.

As to any records the custodian has classified to be evaluation records, remember that such records cannot be released unless all four elements of the test for disclosure have been met. Whether all four elements have been met are questions of fact for the custodian to determine.

Second, regarding your concern about the harassing nature of the request, I have previously observed that the General Assembly has not established a generalized "harassment exception" to the release of otherwise disclosable employee-related records. In addition, please note that this office has long maintained that a FOIA requester's motive for making the request is generally irrelevant to the analysis of whether a non-exempt public record should be released.

In sum, I have not reviewed the actual records at issue and, therefore, I cannot definitively opine on whether the custodian's decisions in this matter are consistent with the FOIA. Moreover, your stated objections to the records' release generally would not appear to serve as sufficient reasons for the custodian to withhold records that are otherwise subject to disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General