Does media coverage of an alleged 'abusive workplace' at Pulaski County Election Commission create a compelling public interest in disclosing the underlying employee complaints under Arkansas FOIA?

Plain-English summary

In November 2019, Pulaski County Judge Barry Hyde sent correspondence to the Pulaski County Election Commission and to multiple media outlets (Arkansas Times, Arkansas Democrat-Gazette, and others) alleging an "abusive" workplace at the Election Commission. The letter served as Hyde's stated justification for stripping the Commission of hiring, firing, and management authority over elections staff and transferring that authority to the county judge's office. The Democrat-Gazette quoted Hyde as saying the underlying allegations were "three or four" complaints his office had received.

A citizen then filed FOIA requests with the Election Commission and the County Judge for the underlying documentation: complaints, reprimands, corrective actions, professional counseling documents. Both offices replied: "No such documents resulted in suspension or termination and, therefore, are not subject to disclosure. A.C.A. § 25-19-105(c)(1)."

State Senator Mark Johnson asked AG Leslie Rutledge whether Hyde's release of correspondence to the public via media outlets created a "compelling public interest" in disclosure of any related undisclosed documents.

The AG declined to answer the questions in the form posed, but laid out the framework that produces the answer. The framework is bounded by a precondition that the public-interest question itself never gets to address.

Step 1 (classification). "Compelling public interest" is one element of the test for releasing employee evaluation or job performance records under Ark. Code Ann. § 25-19-105(c)(1). Before that test even applies, the records have to qualify as evaluation records. Here, both county offices had answered the FOIA by saying no documents had resulted in suspension or termination, language drawn directly from the evaluation-records statute. So they were treating all responsive records as evaluation records. The AG accepted that framing for purposes of the opinion (noting she had no factfinding role to test the assumption), but flagged a subtle problem: the background information referred to "complaints," and a complaint is only an evaluation record if it was solicited, that is, prepared by or at the behest of the employer. An unsolicited complaint is a personnel record (of both the complaining employee and the employee being complained about) and is governed by the Young v. Rice balancing test under Ark. Code Ann. § 25-19-105(b)(12), not the four-prong test. So at least some of what the citizen requested may not have been evaluation records at all.

Step 2 (the four-prong test, if the records are evaluation records). The four prongs are: (1) suspension or termination, (2) final administrative resolution, (3) records formed a basis for the disciplinary decision, and (4) compelling public interest in disclosure. All four must be met. The first prong is the gating element. If no suspension or termination has occurred, the inquiry stops there. Evaluation records of an employee who was never suspended or terminated are exempt regardless of how compelling the public interest might be.

In this case, the background indicated that no suspension or termination had occurred. So under the AG's framework, prong 1 was not met, the inquiry never reaches the compelling-public-interest prong, and the records (assuming they are properly classified as evaluation records) are exempt.

Step 3 (compelling public interest, if it ever matters). Even though the framework rendered the question moot for this matter, the AG walked through how compelling-public-interest is analyzed, drawing on the leading commentators (Watkins, Peltz-Steele, and Steinbuch). Three factors:

1. The nature of the infraction that led to suspension or termination (especially violations of public trust or gross incompetence).
2. The existence of a public controversy related to the agency and its employees.
3. The employee's position within the agency.

A general interest in the performance of public employees is not enough. The leading commentators borrow from defamation law to describe a "public controversy": "a real dispute, the outcome of which affects the general public or some segments of it in an appreciable way" (Waldbaum v. Fairchild Publications, 627 F.2d 1287, 1296 (D.C. Cir. 1980)). Media coverage alone does not bootstrap an issue into a public controversy. But "if the issue is debated publicly and has foreseeable and substantial ramifications for those who are not direct participants, it is a public controversy."

Implicit in the analysis: even Hyde's own decision to send his "abusive workplace" letter to media outlets did not, by itself, create a compelling public interest sufficient to override the level-of-discipline prong. That is because compelling public interest is a piece of a four-element conjunction, not a standalone gate.

Currency note

This opinion was issued in 2020. 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

If a public official goes to the press with employee allegations, can the public get the underlying documents under FOIA?
Not automatically. Whether the public can get the documents depends on what the documents are, not on what the official said publicly. If the documents are evaluation records and no suspension or termination has occurred, they remain exempt under Arkansas FOIA's four-prong test, even if the public is intensely interested. If the documents are personnel records (e.g., unsolicited complaints), the Young v. Rice balancing test controls and the analysis is different.

What's the difference between solicited and unsolicited complaints under Arkansas FOIA?
Solicited complaints, prepared by or at the behest of the employer (e.g., as part of an HR investigation), are evaluation records. Unsolicited complaints, sent to an employer by another employee or a member of the public without being requested, are personnel records of both the complaining employee and the subject employee. The classification matters because the disclosure tests are different.

Why doesn't intense media interest force disclosure?
Because the Arkansas FOIA evaluation-records test has four prongs and all must be met. The compelling-public-interest prong matters, but only after the level-of-discipline (suspension or termination) prong is satisfied. Media coverage of an issue can support the public-interest analysis, but it cannot bypass the discipline gate.

What if a county judge unilaterally takes hiring and firing authority away from another county body based on undisclosed complaints?
That raises questions about the county judge's substantive authority that this opinion did not address. The opinion only addressed FOIA disclosure, not the validity of Hyde's restructuring decision.

What does Waldbaum say about public controversy?
The leading FOIA commentators borrow Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980), a federal defamation case, for its definition of "public controversy": a real dispute whose outcome affects the public or some segment of it in an appreciable way. Mere media coverage is not enough; substantive consequences are.

Background and statutory framework

The substantive framework is Ark. Code Ann. § 25-19-105(c)(1), the FOIA exemption for employee evaluation or job performance records. The four-prong test for releasing such records (suspension or termination, final administrative resolution, records formed the basis, compelling public interest) is codified there and elaborated in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The personnel-records track under Ark. Code Ann. § 25-19-105(b)(12) and Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplies the comparator framework for unsolicited complaints.

The "compelling public interest" analysis relies on the standard guidelines distilled from AG opinions and synthesized in Watkins, Peltz-Steele, and Steinbuch, The Arkansas Freedom of Information Act 236-39 (Arkansas Law Press, 6th ed., 2017). Waldbaum supplies the public-controversy frame from defamation law.

Citations

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2019) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (Supp. 2019) (employee evaluation or job performance records exemption)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Arkansas Supreme Court adoption of AG's definition of evaluation records)
• Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980) (cited via commentators for the "public controversy" frame)

Prior opinions referenced:

• Op. Att'y Gen. 2018-038 (unsolicited complaints as personnel records)
• Op. Att'y Gen. 2018-133 (general standards for disclosure of employee-related complaints)

Other authority:

• John J. Watkins, Richard J. Peltz-Steele, and Robert Steinbuch, The Arkansas Freedom of Information Act 226 n.539, 236-39 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2019-075
April 16, 2020

The Honorable Mark Johnson
State Senator
P.O. Box 241022
Little Rock, AR 72223

Dear Senator Johnson:

This is in response to your request for an opinion concerning a Freedom of Information Act (FOIA) request directed to two Pulaski County offices. You have provided the following background information for your particular questions:

On November 20, 2019, Pulaski County Judge Barry Hyde submitted correspondence to the Pulaski County Election Commissioners and multiple media publications, including the Arkansas Times and Arkansas Democrat-Gazette. This correspondence alleged an "abusive" workplace at the Pulaski County Election Commission's office, which was his justification for relieving the Commission of hiring, firing, and management authority over elections staff members and bestowing that authority to the county judge's office.

The Arkansas Democrat-Gazette reported, "Hyde's correspondence, which was copied to the Arkansas Democrat-Gazette and other media outlets, does not name the source or subject of the allegations, which he said in an interview comprised 'three or four' complaints his office received."

In an effort to obtain documentation that confirms an abusive work environment, a citizen filed two FOIA requests to the Election Commission and the Pulaski County Judge to release any information validating his claim of an "abusive" work environment, such as any existing complaints, reprimands, corrective actions, or professional counseling documents. Both offices replied, "No such documents resulted in suspension or termination and, therefore, are not subject to disclosure. A.C.A. § 25-19-105(c)(1)."

Against this background, you ask:

1) By releasing correspondence to the public via Arkansas media outlets, does any undisclosed documentation referring to employee complaints or reprimands constitute a "compelling public interest" in their disclosure, considering the justification for the action is an "abusive" workplace?

2) Further, does the fact that the administrative policy change, i.e., change of supervisory authority for the staff of the Pulaski County Election Commission from the three commissioners to the county judge, that was supposedly based on these allegations of an "abusive" workplace, meet the test for a "compelling public interest."

RESPONSE

Your questions focus on whether there is a "compelling public interest" in the disclosure of the requested documents. Preliminary to the issue of a "compelling public interest" is the question whether the records are "employee evaluation or job performance records." According to the background information for your questions, the public offices in this case stated in their replies to the FOIA requests that "[n]o such documents resulted in suspension or termination and, therefore, are not subject to disclosure[,]" (citing Ark. Code Ann. § 25-19-105(c)(1)). As you will see from the discussion below, these responses (specifically, the references to suspension or termination) presuppose that all of the documents deemed responsive to the FOIA requests qualify as employee-evaluation records. Because I am not in a position to test the factual accuracy of that assumption, this opinion also presupposes that all of the undisclosed records are employee-evaluation records. However, there may be an unresolved question in this regard, given the reference to "complaints" in the above background information. (A complaint about an employee's conduct only qualifies as an employee-evaluation record if it was solicited, that is, prepared by (or at the behest of), the employer. An unsolicited complaint, on the other hand, constitutes a "personnel record" of both the public employee complained about and the complaining employee. The FOIA treats personnel records differently from employee-evaluation records.)

With this understanding of the background for your questions, I will set forth the general law governing the release of employee-evaluation records under FOIA, with particular emphasis on the "compelling public interest" element.

DISCUSSION

The FOIA prohibits the disclosure of an employee's evaluation records unless all of 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).

The fact of suspension or termination is only relevant to the disclosure of records that qualify as employee-evaluation records. If all of the records that are responsive to a FOIA request are employee-evaluation records, and if no suspension or termination occurred, then the employee-evaluation records are exempt from disclosure. The inquiry does not proceed beyond the first, so-called "level-of-discipline" element in that case. Only if such suspension or termination has occurred does the inquiry turn to the other elements (including "compelling interest") in the test for the release of employee-evaluation records.

The FOIA does not define the phrase "compelling public interest." However, 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.

Thus, various factors bear on the "compelling public interest" analysis, including the existence of a public controversy over a particular matter. In this regard, the leading commentators analogize to the law of defamation and quote one court's statement that a public controversy "is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segments of it in an appreciable way." The commentators further observe that "at least for defamation purposes, media coverage of an issue cannot alone bootstrap it into a public controversy, and a general concern or interest will not suffice. But, if the issue is debated publicly and has foreseeable and substantial ramifications for those who are not direct participants, it is a public controversy."

The question whether there is a "compelling public interest" in disclosure is always a question of fact that must be determined, in the first instance, by the custodian after considering all the facts and circumstances surrounding the particular employee-evaluation records in question.

Sincerely,

LESLIE RUTLEDGE
Attorney General