When a school district investigates a sexual harassment complaint, can the accused employee get a copy of the investigative report even if the FOIA otherwise exempts it?

Plain-English summary

Pine Bluff School District attorney W. Cody Kees asked the AG whether a former PBSD employee who had filed a sexual-harassment complaint against a current PBSD employee had any legitimate FOIA grounds to object to releasing the resulting investigative report to the accused employee. PBSD had concluded the report was an "employee-evaluation record" exempt from public disclosure (the discipline did not reach the suspension/termination threshold), but PBSD also believed the subject of the investigation was entitled to a copy under Ark. Code Ann. § 25-19-105(c)(2). The subject had said PBSD could release it.

The AG laid out three points:

1. PBSD's questions were partly outside the AG's review authority. The AG can only opine on whether a custodian's exemption decision is consistent with FOIA, not on whether one private party's interests can override another's, and not on questions that would amount to private legal advice (which is barred by Ark. Code Ann. § 25-16-701).

2. The subject of the record is entitled to a copy under § 25-19-105(c)(2). PBSD got that part right. The subject of an employee-related record (the person about whom the record is maintained) has a personal access right that does not depend on the public's right of access.

3. But the subject cannot "authorize" the custodian to release an exempt record to the public. The exemption protects the system, not just the individual. The custodian remains bound to keep an exempt record out of general circulation even if the named subject says it is fine to release.

The opinion also flagged a "mixed records" issue: the same report likely contained information that was the personnel record or evaluation record of multiple employees (the complainant, the accused, possibly witnesses). Each separable portion has to be classified per employee and run through the appropriate test for that employee. PBSD could not treat the whole report as a single document for FOIA purposes.

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

Q: What does "subject of the record" mean?
A: The person about whom the record is maintained. § 25-19-105(c)(2) gives that person a personal right to obtain personnel and evaluation records pertaining to them, even when those records are exempt from public disclosure.

Q: If the subject can get a copy, can they then circulate it?
A: That is a different legal question. The custodian's FOIA obligation is to give the subject the copy. What the subject does with it after receiving it is governed by other law (privacy, defamation, contract). Nothing in this opinion answers that.

Q: Why does it matter that the report was a "mixed record"?
A: Because the same document might be the accused employee's evaluation record (one disclosure test), the complainant's personnel record (a different test), and a witness's personnel record (another). The custodian must classify each piece against each affected person and apply the right test, not just lump everything together under one label.

Q: What items have to be redacted even when a personnel record is otherwise disclosable?
A: The opinion lists: personal phone numbers, emails, home addresses (§ 25-19-105(b)(13)); employee personnel numbers; marital status and dependent info; dates of birth; Social Security numbers; medical info; identifying information for undercover law enforcement (§ 25-19-105(b)(10)); driver's license numbers and copies; insurance, tax, payroll deduction, and banking info.

Q: What does the FOIA's "compelling public interest" test require for evaluation records to come out publicly?
A: All four prongs must be met: suspension or termination, finality of that discipline, the records formed the basis for the discipline, and a compelling public interest exists. Without all four, an evaluation record stays exempt no matter what the public demand looks like.

Background and statutory framework

The Arkansas FOIA distinguishes "personnel records" (any record other than evaluation/job-performance records pertaining to an individual employee, exempt only when disclosure would be "a clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12)) from "employee evaluation or job performance records" (exempt under § 25-19-105(c)(1) unless the four-part discipline/finality/basis/compelling-interest test is met).

The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-part definition of an evaluation record. The privacy balancing test for personnel records comes from Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992), with the burden to defeat disclosure on the person resisting it (Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)).

The "mixed records" doctrine, that a single document can contain multiple employees' personnel-and-evaluation slices and must be classified piece-by-piece per employee, comes from earlier AG opinions (Op. Att'y Gen. 2018-103, 2016-112, 2015-057).

The AG's review authority under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is bounded: the office can opine on whether a custodian's exemption decision is consistent with FOIA. It cannot opine on whether private actors have grievance rights against each other, and it cannot answer fact questions that turn on document review the AG has not done.

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 exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records exception)
• Ark. Code Ann. § 25-19-105(c)(2) (subject's access right)
• Ark. Code Ann. § 25-16-701 (no private practice of law)
• 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)
• 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. 2020-004
February 4, 2020

W. Cody Kees
Attorney at Law
425 West Capitol Avenue, Suite 3200
Little Rock, AR 72201

Dear Mr. Kees:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as attorney for the Pine Bluff School District ("PBSD") is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 PBSD has received a request under the FOIA for a copy of an investigative report. You state that the report is the result of an investigation into an employee's complaints of sexual harassment and that it is a summary of the investigator's interviews with key witnesses and persons of interest, including the former employee/complainant and the subject of the complaints. You further state that PBSD has determined that the report is the employee-evaluation record of the subject of the investigation; and you suggest, but do not directly state, that it is exempt from disclosure because it was not used at the final administrative resolution of any suspension or termination proceeding. You continue, however, that the subject of the report has authorized PBSD to release the report notwithstanding the applicable exception from disclosure for employee-evaluation records found in Ark. Code Ann. § 25-19-105(c)(1). Finally, you state that it is PBSD's position and understanding that, notwithstanding any applicable FOIA exceptions, the investigative report and its attachments shall be made available to the person about whose alleged actions were at issue in the report, pursuant to Ark. Code Ann. § 25-19-105(c)(2).

PBSD asks whether the former employee who was the complainant has any legitimate grounds to object to disclosure of the report.

RESPONSE

As a preliminary matter, I must note that your request for my opinion poses three specific questions that go beyond seeking my opinion as to whether the custodian's decisions with respect to employee-related records are consistent with the FOIA. I cannot address those questions as they fall outside of the scope of my authority under the 25-19-105(c)(3)(B)(i).

Your correspondence indicates (although it is less than clear) that the subject of the investigation and report has requested a copy of the report. If this is the case, then to the extent the subject is the person about whom the employee-related record is maintained, PBSD correctly understands that the FOIA entitles the subject to obtain a copy of such record. However, the custodian may not publicly release an exempt record even if the subject requests or has "authorized" such disclosure.

PBSD's main question appears to be whether the complainant has any legitimate grounds to object to the subject of the investigative report obtaining a copy of the report. Again, this specific question is outside the scope of my review. Moreover, answering it would be tantamount to providing prohibited legal advice. As previously stated, however, the subject is entitled to the report, to the extent the subject is the person about whom the report is maintained.

What follows are 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 "employee evaluation or job performance" records. It is always 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 appear to be met. The request was made to the PBSD, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. Accordingly, the analysis 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 exemption.

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 or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is 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. And whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be released. Again, the test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld.

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;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• 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;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

It should also be noted that the Legislature has not seen fit to include a generalized "harassment" exemption to the release of otherwise disclosable employee-related records.

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.

Additionally, some employee-related records constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record.

If a document meets the above definition for an employee-evaluation record, then 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).

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.

Before proceeding further, I must point out that your request for my opinion poses three specific questions that I cannot address. This is because the types of questions you have asked fall outside of the scope of my authority to render opinions under the FOIA. That authority is limited to giving my opinion whether a custodian's decisions with respect to employee-related records are consistent with the FOIA.

Because I have not reviewed the record at issue, I am unable to definitively opine on whether all of the decisions that must be made with respect to the record at issue are consistent with the FOIA. It is the custodian who, in the first instance, must apply the precepts discussed above to each record, and make the determination that the record should be disclosed, disclosed with certain redactions, or withheld from disclosure.

There is one thing I can say for certain, however, based on one assertion in your correspondence. You state that it is the custodian's understanding that the record at issue (which the custodian appears to have determined is an employee's evaluation record that is not subject to disclosure) must nevertheless be released to the subject of the record, to the extent the subject is the person about whom the record is maintained. That understanding is correct, but the custodian remains prohibited from disclosing an exempt employee record to anyone but the subject. The subject of the record cannot "authorize," as you put it, the custodian to disclose an exempt record in his behalf.

You likely also are aware, based on your correspondence, that the record may well be a mixed record. Accordingly, the custodian must consider whether any portions of the internal investigation report in this case qualify as another employee or employees' evaluation or personnel records. If they do, then the custodian must apply the applicable tests for disclosure as to those portions.

As to PBSD's question whether the complainant former employee has any legitimate grounds to object to the report being given to the subject of the report, this is, again, a specific question I cannot answer under the FOIA. To advise whether the complainant has legitimate grounds to object would be tantamount to my providing prohibited private legal advice.

Sincerely,

LESLIE RUTLEDGE
Attorney General