Are an Arkansas teacher's employment contract, license, termination recommendation letter, and resignation letter all releasable under FOIA when someone requests the file?

Plain-English summary

Charles Harwell, attorney for the Huntsville School District, asked the AG to review the District's planned release of five categories of records pertaining to a former employee in response to a FOIA request:

1. The 2018-19 School Employee Contract
2. The 2019-20 Teacher's contract
3. The employee's certificate of licensure (effective 2016-2020)
4. The Superintendent's letter to the employee recommending termination
5. The employee's letter of resignation

The District had classified all five as personnel records and was prepared to release with redactions of personal information. The subject of the records had objected without articulating a specific legal reason. The AG's review hit different conclusions for different records:

• Items 1, 2, 3 (employment contracts and licensure certificate): Routine employment-related documents that are generally personnel records subject to disclosure with appropriate redactions of personal contact info and other sensitive personal details. The AG saw no problem with releasing these.

• Item 4 (termination recommendation letter): Classification depends on the content. If the letter details the teacher's performance, it is an evaluation record (Thomas v. Hall test) and runs through the four-part test for disclosure (suspension/termination, finality, basis, compelling public interest). If it merely says "we recommend termination" without performance details, it could be a personnel record. The District seemed to have classified it as a personnel record, but the AG flagged uncertainty about whether that classification was correct without seeing the actual letter.

• Item 5 (resignation letter): Personnel record. Whether to release depends on the Young v. Rice balancing test for "clearly unwarranted invasion of personal privacy." If the resignation letter contains only routine resignation language, the privacy interest is likely de minimis and disclosure favors openness. If it contains intimate or sensitive content (medical reasons, family issues, allegations against the employer), the privacy analysis tilts the other way.

The opinion stresses that classification has to be done record by record, with attention to actual content. The District's blanket "personnel records" treatment of all five was not necessarily wrong but needed to be checked against each document's content.

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 are contracts and licensure certificates so straightforward?
A: They are routine employment documents that don't contain intimate personal information. Their content is, by design, the basic terms of employment. The privacy balancing test under Young v. Rice almost always tips toward disclosure for these.

Q: What's the difference between a termination recommendation letter and a termination letter?
A: A recommendation letter is a step in the termination process (typically from a superintendent to a school board). A termination letter is the final discipline action. Both can be evaluation records if they detail performance; both can be personnel records if they don't. Classification turns on the document's content, not its title.

Q: What if the resignation letter mentions disciplinary action?
A: That's where the privacy balancing gets harder. If the resignation references job-performance issues that would normally be in evaluation records, releasing the resignation might effectively release evaluation-record content through the back door. The custodian has to think about whether withholding parts of the resignation is needed.

Q: Should the employee's name be redacted?
A: Generally no. The subject of a personnel record is identified, by definition. Redacting the name would defeat the purpose of the record. But personal contact info and other identifying detail beyond the name should be redacted under the standard list.

Q: What if I am the subject of records and want them not to be released at all?
A: Articulate a specific legal reason: a clear privacy interest, a statutory exemption you can name, or a defect in the custodian's classification. A general "I object" is rarely enough to override the custodian's release decision.

Background and statutory framework

The standard FOIA two-track framework applies (Ark. Code Ann. § 25-19-105):

• (b)(12) personnel records: open subject to Young v. Rice privacy balancing.
• (c)(1) evaluation records: open only if the four-part test is met.

The Thomas v. Hall definition of evaluation record requires three elements: created by/at the behest of the employer, to evaluate the employee, detailing performance. Routine paperwork that doesn't satisfy all three is not an evaluation record.

For the recommendation letter and resignation letter, the AG's general approach is to make the custodian re-examine each document's content rather than treat the whole batch uniformly. The AG also notes the practical reality: without seeing the actual records, the AG cannot give a definitive answer.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• Ark. Code Ann. § 25-19-103(7)(A) (public records definition)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• 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. 2019-061
October 2, 2019

Mr. Charles L. Harwell, Esq.
Crouch, Harwell, Fryar & Ferner, PLLC
111 Holcomb Street
P.O. Box 1400
Springdale, AR 72765-1400

Dear Mr. Harwell:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 Huntsville School District ("District") has received a FOIA request for records pertaining to a former District employee. You specifically inquire about releasing the following records:

1. The 2018-19 School Employee Contract;
2. The 2019-20 Teacher's contract;
3. [The former employee's] certificate of licensure effective 2016-2020;
4. The letter from the Superintendent to the employee recommending termination; and
5. [The former employee's] letter of resignation.

You have determined that the above records qualify as personnel records that must be released with personal information redacted from items 1 and 2. You state that the subject of the records "objects to the release of these records," but has not articulated a legal reason why they should not be released. You ask whether the custodian's decision regarding the records' release 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 intends to release, I cannot definitively opine on the propriety of releasing any specific record. As a general matter, the custodian's decision to release items 1 through 3 (with personal information redacted) appears to be consistent with the FOIA because these kinds of routine employment-related documents ordinarily are subject to inspection and copying under the FOIA with appropriate redactions. But based on your correspondence, I believe a conclusive determination regarding items 4 and 5 likely depends upon whether the applicable test for disclosure was properly applied.

I will 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 to identify records that are responsive to the request, properly classify those records, and then apply the applicable test for their disclosure.

DISCUSSION

[The opinion's general FOIA framework discussion (sections I and II) is the standard analysis covering the public-records definition, the personnel-records exception with the Young v. Rice balancing test, the employee-evaluation exception with the Thomas v. Hall definition and four-part test, and the standard list of per-line redactions.]

III. Application.

Without seeing the records, I cannot definitively opine on whether each of the District's classification and disclosure decisions is consistent with the FOIA. The contracts (items 1 and 2) and the licensure certificate (item 3) are routine employment-related documents that ordinarily qualify as personnel records subject to disclosure with appropriate redactions. The termination recommendation letter (item 4) requires a closer look at content: if it details performance, it is an evaluation record subject to the four-part test; if it merely conveys the recommendation without performance details, it may be a personnel record. The resignation letter (item 5) is a personnel record, and the custodian must apply the Young v. Rice balancing test to determine whether its disclosure would be a clearly unwarranted invasion of personal privacy.

Sincerely,

LESLIE RUTLEDGE
Attorney General