When an Arkansas Department of Health employee objects to her old discipline file being released, what does the AG actually decide?

Plain-English summary

Gloria Wylie, a former Arkansas Department of Health (ADH) employee, asked AG Leslie Rutledge to review whether ADH's records custodian was correctly releasing records about her in response to a third-party FOIA request for "all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020." The custodian had decided to release the responsive documents with redactions of personal information. Wylie objected.

The AG could not give a substantive answer because no records had been submitted to her office for review. Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the AG's review is limited to evaluating whether a custodian's decision is consistent with FOIA, based on the records the custodian provides. With no records to look at, the AG could only set out the framework the custodian had to apply.

That framework follows the standard Arkansas FOIA two-track structure for employee-related records:

Personnel records (Ark. Code Ann. § 25-19-105(b)(12)) are all employee-related records that are not evaluation records. They are released unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. The test is two steps: first, does the information give rise to a greater-than-de-minimis privacy interest; second, is that privacy interest outweighed by the public interest in disclosure. The thumb is on the disclosure side, and the burden is on the person resisting (Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)).

Employee-evaluation records (Ark. Code Ann. § 25-19-105(c)(1)) are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance, including misconduct-investigation records (Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387). They are released only if all four prongs are met: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for that resolution, and (4) there is a compelling public interest in disclosure.

The custodian must first classify each record (personnel or evaluation), then apply the right test. The AG also reproduced the standard list of items requiring redaction even on otherwise releasable records: personal contact information, employee personnel numbers, marital status and dependents, dates of birth, social security numbers, medical information, undercover-officer identifying information, driver's license numbers and copies, insurance coverage, tax information, payroll deductions, and banking information.

This opinion is paired with three others issued in the same ADH FOIA cluster: 2020-036 (Kriesel), 2020-038 (Planey), and 2020-037 (Jeffers, on the Rogers PD side). Each addresses a different ADH employee's objection to release. The Wylie opinion is the one with no records submitted, so it falls back to a pure standards recital.

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

Why couldn't the AG actually decide whether the records should come out?
Because no records were sent to her. Ark. Code Ann. § 25-19-105(c)(3)(B)(i) limits the AG's review to whether a custodian's decision is consistent with FOIA, based on what the custodian provides. The AG can review correspondence describing the dispute, but she cannot decide redaction questions or specific releasability without seeing the actual documents.

What should Wylie have done differently?
The opinion does not say. As a matter of practical FOIA practice, the records typically get sent by the custodian (whose decision is being reviewed) rather than the subject. Wylie was the records subject, not the custodian, so she likely had no copies to forward. The procedural gap is structural to how Arkansas's AG-review process is triggered.

What practical guidance did the AG give?
The custodian must first determine each record's classification (personnel or evaluation). For personnel records, apply the Young v. Rice balancing test. For evaluation records, apply the four-prong release test. Then redact the standard categories of information that must be redacted regardless of overall releasability.

What is the 'compelling public interest' factor in the evaluation-records test?
The leading commentary (Watkins/Peltz-Steele/Steinbuch, The Arkansas Freedom of Information Act, 6th ed. 2017) lists three factors: (1) nature of the infraction (especially violations of public trust or gross incompetence), (2) existence of a public controversy related to the agency, (3) employee's position within the agency. A general interest in employee performance is not enough.

What if the AG had a different position about the records?
Under § 25-19-105(c)(3)(B)(i), the AG opinion is advisory. The custodian's actual decision drives release; the AG opinion is persuasive but not binding. If the custodian decided one way and the AG advised differently, the requester or the subject could pursue the question through the courts under Ark. Code Ann. § 25-19-107.

Background and statutory framework

Arkansas's FOIA framework for employee records sits in two parallel exemptions. Ark. Code Ann. § 25-19-105(b)(12) is the personnel-records exemption, releasing records unless disclosure is "a clearly unwarranted invasion of personal privacy." Ark. Code Ann. § 25-19-105(c)(1) is the evaluation-records exemption, with its four-prong release test.

The AG's review authority comes from § 25-19-105(c)(3)(B)(i), which lets the custodian, requester, or subject of certain employee-related records seek an AG opinion on whether the custodian's decision is consistent with FOIA. The AG's authority is statutorily limited; she cannot compel production of records, act as fact-finder, or enforce FOIA requests (per Op. Att'y Gen. 2005-236).

Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007), establishes the rebuttable presumption of public-record status. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplies the personnel-records balancing test. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, supplies the evaluation-records definition. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), puts the burden on the person resisting disclosure.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information exempt)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information exempt)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review authority)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)

Standard prior-opinion citations follow the same set as in Op. Att'y Gen. 2020-048.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2020-039
July 23, 2020
Gloria Wylie
c/o Reginald Rogers, Deputy General Counsel
Arkansas Department of Health
4815 W. Markham Street, Slot 31
Little Rock, AR 72205

Dear Ms. Wylie:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested records, 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 the Arkansas Department of Health ("ADH") has received a request under the FOIA for records of all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020. The records custodian has determined that the requested records are subject to release after redacting certain personal information. You object to the release of the requested documents and ask whether the custodian's decision to release the records as redacted is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would be responsive to the instant FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. 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 "employee evaluation or job performance" 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

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) apply.]

III. Application.

Because I have not reviewed the actual records at issue, I am unable to definitively opine on whether the custodian's decision is consistent with the FOIA. But I can state based on the correspondence sent to my office that the custodian, in determining whether the requester is entitled to the personnel or employee-evaluation records at issue, must properly classify the document(s) and apply the appropriate disclosure test(s).

Sincerely,

LESLIE RUTLEDGE
Attorney General