Did Little Rock have to release a city employee's evaluation records when the underlying investigation was still ongoing?

Plain-English summary

Christopher W. Burks of WHLaw represented a FOIA requester who asked the City of Little Rock for an employee's complete personnel file, including any evaluation or job-performance records. The custodian released the personnel records but withheld evaluation records, citing an ongoing investigation. Burks pushed back, arguing among other things that the subject of the records had "mooted the protections of FOIA" by speaking to the press and releasing some records of her own. He invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i) and asked the AG to review.

AG Leslie Rutledge sided with the custodian. The opinion's reasoning:

1. The records appear to be evaluation records. Under Thomas v. Hall, 2012 Ark. 66, evaluation records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance on the job. The opinion treats records generated during an investigation of alleged misconduct as falling within that definition (extending Thomas) when they detail the underlying conduct.

2. The four-prong test in § 25-19-105(c)(1) gates disclosure. Disclosure requires (a) suspension or termination, (b) final administrative resolution, (c) basis (the records formed a basis for the disciplinary decision), and (d) compelling public interest. With an ongoing investigation, finality is missing, so the test fails at step two. No further analysis was needed.

3. The subject's public statements do not change the analysis. Burks argued the records' subject had effectively waived FOIA protection by speaking to the press. The opinion rejected that. AG opinions (and the FOIA itself) treat the subject's actions as irrelevant to the test for disclosure. The custodian cannot release an exempt evaluation record on the subject's "authorization" (Op. 2020-004), and the subject cannot trigger release through public statements either.

4. Custodian discretion does not extend to releasing exempt records. Burks cited Gillespie v. Brewer, 2019 Ark. App. 275, but the opinion identifies that case as inapposite. Gillespie involved a custodian who released records pursuant to a court order; the Court of Appeals held the appeal was mooted by the release. The case did not authorize a custodian to release records that fail the four-prong test on the custodian's own initiative.

So the City's withholding was consistent with the FOIA, at least until the investigation reached final administrative resolution.

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

What changes once the investigation ends?
The fourth prong (compelling public interest) becomes the swing factor, but only after the second (final administrative resolution) and third (records formed a basis) are also met. If the investigation closes with a suspension or termination and the records formed the basis for that decision, the requester is back in the four-prong analysis to test public-interest weight. Without suspension or termination, the records remain closed regardless of how the investigation ends.

Does it matter that the subject talked to the press?
No. The opinion identified that under the Arkansas FOIA, the subject's actions do not change the custodian's analysis. The test is objective and turns on the document's status under § 25-19-105(c)(1), not on what the subject has or has not said publicly.

Could the custodian have released the records voluntarily?
The opinion identified that the custodian has no general discretion to release records that the FOIA exempts. Watkins, Peltz-Steele & Steinbuch and prior AG opinions confirm that. The custodian is "prohibited from disclosing an exempt employee-evaluation record to anyone other than the subject of the record."

What was wrong with the Gillespie argument?
Gillespie involved a custodian who, faced with a court order, released records rather than seek a stay. The Court of Appeals held the disclosure mooted the appeal. The case stands for "released-during-litigation moots the appeal," not "custodians may release exempt records at will."

Is "ongoing investigation" the same as "no final administrative resolution"?
Yes, in this context. The four-prong test's second prong looks for "final administrative resolution of any suspension or termination proceeding." If no proceeding has reached finality (because the investigation is still open), the prong fails.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(1) is the Arkansas FOIA's gate for employee-evaluation records. It departs sharply from the personnel-records track at (b)(12). Evaluation records do not get a Young v. Rice balancing analysis on their own; they fail outright unless all four prongs are met. The legislature drew this stricter rule to preserve confidentiality of the formal job-evaluation process and to promote candid employee/employer exchanges.

The Thomas v. Hall framework extends the evaluation-records exception to records generated during misconduct investigations, when those records detail the alleged conduct. That extension was significant for the Burks request, because the City's withholding turned on classifying the investigative records (not just routine evaluations) as covered by (c)(1).

The opinion's discussion also reinforces a recurring AG-opinion theme: a public-records exception, once it applies, removes the custodian's discretion to release. The custodian cannot turn an exempt record into a releasable one through accommodation or convenience.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (public-records definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records; misconduct-investigation records included)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Gillespie v. Brewer, 2019 Ark. App. 275, 577 S.W.3d 59 (mooted appeal after court-ordered release; not a discretionary release case)

Cross-referenced AG opinions:

• Op. Att'y Gen. 2020-004 (subject cannot authorize release of exempt evaluation records)
• Op. Att'y Gen. 2015-056, 2009-161, 96-386, 91-374 (custodian cannot release exempt records voluntarily)

Source

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

Original opinion text

Opinion No. 2020-057
December 14, 2020
Mr. Christopher W. Burks
WHLaw
1 Riverfront Place, Suite 745
North Little Rock, AR 72114
Dear Mr. Burks:
STATE OF ARKANSAS
THE ATTORNEY GENEl~AL
LESLIE RUTLEDGE
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as attorney for the requester of the
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 your client has sent the City of Little Rock a
request under the FOIA for "all of [an employee's] personnel file records, including
any employee evaluation or job performance evaluation documents." You state that
the "records received don't include any employee evaluation/job performance
records" and you assert that the records should have been released because the
subject "has mooted the protections of FOIA" by releasing some records and
speaking to the press. According to correspondence to you from the City of Little
Rock, the custodian has determined that "employee evaluation or job performance
records ... are not releasable as [they are] part of an ongoing investigation." You
ask whether the custodian's decision to withhold the requested employee-evaluation
records is consistent with the FOIA.
RESPONSE
It is my opinion that the custodian's decision is consistent with the FOIA.
323 CENTER STR EET. SUITF 200 •LITTLE ROCK, ARKJ\NSJ\S 72201
TELEPI IONE (50 I) 682-2007 • F /\X (50 I) 682-8084
INTERNET W EBSITE. http://www.ag.state.ar.us/ Mr. Christopher W. Burks
Opinion No. 2020-057
Page 2
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 City of Little
Rock, which is a public entity and is subject to the FOIA. Moreover, the request
appears to pertain to public records.1 Because the records are held by a public entity,
they are presumed to be public records, 2 although that presumption is rebuttable. 3
Accordingly, given that I have no information to suggest that the presumption can
be rebutted, 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.4 For purposes of the FOIA, these items can usually be
1 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 that constitute a record of the performance or lack of performance of official
functions ... carried out by a public official or employee .... " Ark. Code Ann. § 25-19-103(7)(A)
(Supp. 2019).
3 See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722
(2007) ("the presumption of public record status established by the FOIA can be rebutted if the
records do not otherwise fall within the definition found in the first sentence, i.e., if they do not
'constitute a record of the performance or lack of performance of official functions,"' citing Op.
Att'y Gen. 2005-095).
4 This office and the leading commentators on the FOIA have observed that personnel files usually
include: employment applications; school transcripts; payroll-related documents, such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-without-pay; certificates of advanced training or education; and legal documents,
such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-Steele & Robert
Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed.,
2017). Mr. Christopher W. Burks
Opinion No. 2020-057
Page 3
divided into two mutually exclusive groups: "personnel records"5 or "employee
evaluation or job performance records."6 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. Because the relevant
exception in this instance appears to be the one for employee-evaluation records, I
will limit my discussion to records of that type.
The FOIA itself does not define "employee evaluation or job performance records. "7
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. 8 This exception includes records generated while investigating allegations of
employee misconduct that detail incidents that gave rise to an allegation or
misconduct. 9
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);
   5 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following
   shall not be deemed to be made open to the public under the provisions of this chapter ....
   [p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of
   personal privacy."
   6 Ark. Code Ann.§ 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all
   employee evaluation or job performance records, including preliminary notes and other materials,
   shall be open to public inspection only upon final administrative resolution of any suspension or
   termination proceeding at which the records form a basis for the decision to suspend or terminate
   the employee and ifthere is a compelling public interest in their disclosure."
   7 I will refer to this group of records as "employee-evaluation records."
   8 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
   2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
   9 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. Mr. Christopher W. Burks
   Opinion No. 2020-057
   Page 4
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).10
   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: (I) 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. 11
   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, 12 which is always a question of fact that must be determined,
   in the first instance, by the custodian after he considers all the relevant information.
   10 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
   11 Watkins, et al., at 238-39 (footnotes omitted).
   12 Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue''). Mr. Christopher W. Burks
   Opinion No. 2020-057
   Page 5
   The primary purpose of this exception is to preserve the confidentiality of the formal
   job-evaluation process in order to promote honest exchanges m the
   employee/employer relationship.13
   III. Application.
   As explained above, suspension or termination is a necessary, threshold condition
   for the release of employee-evaluation records. The custodian in this case has stated
   that the requested employee-evaluation records are "part of an ongoing
   investigation." I take it this means there has been no final administrative resolution
   of any suspension or termination proceeding. It thus seems clear that the threshold
   condition for the release of employee-evaluation records is not met.
   You assert that the subject of the records has somehow mooted or waived the
   protections of FOIA. Your argument presupposes that the custodian has discretion
   to consider whether employee-evaluation records should be disclosed, even though
   the test for disclosure under subsection 25-19-105( c) has not been met. However,
   exemptions under the FOIA are mandatory. 14 The custodian does not have
   discretion to make available to the public those records that fall within an
   exemption. 15 The custodian is prohibited from disclosing an exempt employee-
   evaluation record to anyone other than the subject of the record.16
   13 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
   14 Ops. Att'y Gen. 2015-056, 2009-161, 96-386, 91-374.
   15 Id.; Watkins, et al., at 119. The case cited in your request for my opinion-Gillespie v. Brewer,
   2019 Ark. App. 275, 577 S.W Jd 59-is inapposite to the issue at hand. That case involved a
   custodian's release of records pursuant to a cowt order. There, rather than requesting a stay, the
   custodian released records after being ordered to do so by the circuit court. The Court of Appeals
   held that this mooted the claim of exemption on appeal. The case does not stand for the proposition
   that a custodian has discretion to disclose records where the test for disclosure under the FOIA is
   not met.
   16 See Op. Att'y Gen. 2020-004 ("The subject of the record cannot 'authorize,' as you put it, the
   custodian to disclose an exempt record in his behalf."). Mr. Christopher W. Burks
   Opinion No. 2020-057
   Page 6
   In conclusion, therefore, it is my opinion that the custodian has correctly decided to
   withhold the requested employee-evaluation records from disclosure at this time.
   Sincerely,
   ~~~cc;:>- L. //?..A'-j?
   LESLIE RUTLEDGE
   Attorney General