What records about a former Russellville School District employee can be released after he was placed on administrative leave and then terminated?

Plain-English summary

Russellville School District received a FOIA request for records about a former employee's 2020-2021 employment, the decision to place him on administrative leave, and his subsequent termination. The request specifically asked for evaluations, job performance records, written reprimands, letters of caution, documents supporting suspension or dismissal, and promotion/demotion records. The district's attorney, Khayyam Eddings, decided to release the records with redactions and asked the AG whether that decision was consistent with FOIA.

Unlike most FOIA AG opinions where the AG declines to opine because the records are not provided, here the AG had the records and could review them. The AG concluded the custodian's decision was "not entirely consistent with the FOIA." Specifically:

Additional information that needs to be redacted. Beyond what the custodian flagged, the AG found additional pieces of information that should be redacted from the records.

Redactions that may not be consistent with the FOIA. Some of what the custodian planned to redact may not actually qualify for redaction, meaning more information should be released than the custodian planned.

Documents that should not be released. Some documents that the custodian planned to release should be withheld if they did not form a basis for the former employee's suspension or termination. Evaluation records require all four prongs to be met for release, including the prong that the records "formed a basis for the decision" to discipline.

The opinion is unusual because the AG actually reviewed the records and gave specific feedback, rather than just laying out the framework. The case is also unusual in that suspension and termination did happen, so the four-prong test for evaluation records is in play in a real way.

Currency note

This opinion was issued in 2021. 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 does "formed a basis" mean?

It means the records actually supported the discipline decision. A pre-existing evaluation that was not consulted or weighed in the discipline decision did not "form a basis" for it. The opinion does not specify exactly which records in the Russellville case did or didn't qualify, but the principle is that the connection between the record and the discipline must be real and contemporaneous.

Why are some redactions invalid?

Without seeing the records, we don't know specifically which redactions the AG flagged as invalid. The standard required redactions list (personal contact info, DOB, SSN, medical info, banking info) covers a lot, but custodians sometimes redact more than necessary. The AG's review identified specific instances of over-redaction.

What is the compelling public interest?

The fourth prong of the evaluation-records test. Watkins commentary lists three factors: nature of the infraction (especially public trust violations), existence of a public controversy, and the employee's position within the agency. A high-level employee, a public controversy, and a serious infraction usually combine to meet the standard.

Can the employee challenge the release?

Yes. Section 25-19-105(c)(3)(B)(i) lets the subject of the records ask the AG. The subject can also pursue circuit court review under § 25-19-107. Both paths are available.

Background and statutory framework

The framework here is the same as in similar opinions: personnel records under § 25-19-105(b)(12) are released subject to Young v. Rice balancing; evaluation records under § 25-19-105(c)(1) require all four prongs. What's different is that the AG actually reviewed the records, not just the legal abstractions.

The four prongs for evaluation records:

1. Suspension or termination (level of discipline). Met here: the employee was placed on administrative leave and then terminated.
2. Final administrative resolution (finality). Presumably met since the employment ended.
3. Records formed a basis for the discipline (basis). This is the prong the AG flagged as the screen for which evaluation records can be released.
4. Compelling public interest. The AG didn't identify this prong as a problem, suggesting public interest is sufficient.

Thomas v. Hall is the leading case on what counts as an evaluation record. Documents created by or at the employer's behest to evaluate the employee, detailing performance or lack of performance, qualify. Routine employee-prepared records (incident reports, use-of-force reports) generally do not.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (required redactions)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007)
• Young v. Rice, 308 Ark. 593 (1992)
• Thomas v. Hall, 2012 Ark. 66

Source

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

Original opinion text

Opinion No. 2021-026
May 3, 2021
Khayyam M. Eddings, Esq.
Friday, Eldredge & Clark, LLP
400 West Capitol Ave., Suite 2000
Little Rock, AR 72201

Dear Mr. Eddings:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as legal counsel for the records custodian, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019).

Your correspondence indicates that the Russellville School District ("RSD") has received a request under the FOIA for records relating to a former employee's employment during the 2020-2021 school year, the decision to place him on administrative leave, and his subsequent termination, including his evaluations, job performance records, written reprimands, letters of caution, documents supporting a recommendation for suspension or dismissal, and documents related to promotions and demotions since January 1, 2020. You have attached several documents that you believe are responsive to the request and that you intend to release with redactions. You ask whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Your request does not indicate how the custodian has classified any particular record, only that the RSD intends to release the enclosed records, which include those relating to the decision to place the former employee on administrative leave and the subsequent decision to terminate him, as well as his redacted personnel records. Without information regarding the custodian's decision, it is impossible for me to opine definitively on whether each record has been classified and treated appropriately under the FOIA. However, based on the contents of the records provided, I will state my supposition regarding the custodian's classification and render my opinion based on that supposition.

Having reviewed the records at issue, it is my opinion that the custodian's decision to release the records is not entirely consistent with the FOIA. I have identified several additional pieces of information that need to be redacted, several redactions that may not be consistent with the FOIA, and several documents that should not be released if they did not form a basis for the former employee's suspension or termination.

DISCUSSION

The custodian must walk through each document, classify it correctly, and apply the appropriate test. For evaluation records to be released, the records must have formed a basis for the suspension or termination decision. Records that did not form such a basis, even if they are evaluation records of an employee who was disciplined, remain exempt.

Sincerely,

LESLIE RUTLEDGE
Attorney General