When a school superintendent gives the school board documents in a brown envelope she calls 'correspondence', can the school district withhold them under FOIA?
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This page answers the general question as of 2021. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
A reporter asked the Helena/West Helena School District for "documents that [Superintendent Linda English] provided to board members in a brown envelope" that English described to a board member as "correspondence." The district denied the request under the personnel-records exemption (§ 25-19-105(b)(12)) and the evaluation-records exemption (§ 25-19-105(c)). The reporter pushed back. Susan Kendall, English's attorney, asked the AG whether withholding was consistent with FOIA.
The AG sided with the reporter. After reviewing the responsive records, the AG concluded they were either personnel records of the superintendent or non-exempt public records. Crucially, they were not employee-evaluation records (because they were not "created by or at the behest of the employer to evaluate an employee"). If they were non-exempt public records, they had to be released. If they were personnel records, the Young v. Rice balancing test applied, and based on the records' face the AG saw nothing that would create a clearly unwarranted invasion of personal privacy. The public interest in disclosure likely outweighed any privacy interest.
The opinion is a useful illustration of how the FOIA process actually works. The AG had access to the records and could review them. The custodian's blanket invocation of two exemptions was insufficient because the custodian hadn't classified the records or explained how the exemptions applied. The AG's review of the actual documents drove the conclusion that they were releasable.
What this means for you
School districts and FOIA custodians
Don't use a blanket "(b)(12) and (c)" denial. The two exemptions cover different categories of records and have different tests. Specify which records you classify into which category and walk through the applicable test. The opinion implicitly criticizes the custodian for an opaque denial: "your correspondence merely states that the 'FOIA request was denied pursuant to Ark. Code Ann. § 25-19-105(b)(12) and (c).'"
If you're going to deny, document the classification. If you can't articulate which exemption applies and why, you probably shouldn't deny.
School superintendents and senior officials
Documents you share with the school board, even informally in a "brown envelope" labeled "correspondence," are subject to FOIA if they qualify as public records (concerning the performance of official functions). The label on the envelope doesn't control. Operate on the assumption that what you share with elected officials in their official capacity will be public.
Journalists and citizens
When a custodian denies a request with a vague exemption citation, request the basis for the denial in writing and identify the records. The opinion shows that an AG review of the actual records often reverses an opaque denial. You can also pursue circuit court review under § 25-19-107.
School board members
Records you receive in your official capacity, including informal "correspondence" from the superintendent, are likely public records. Don't treat them as confidential just because of the format.
Common questions
What was in the brown envelope?
The opinion doesn't describe the contents specifically, only that the AG reviewed the two responsive records and concluded that nothing on their face supported the privacy interest necessary to keep them out of the public's hands.
Why weren't they evaluation records?
Evaluation records under Thomas v. Hall require records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance. The opinion notes the records "were not 'created by or at the behest of the employer to evaluate an employee.'" These were the superintendent's own communications to the board, not records the board generated to evaluate her.
Can the superintendent label something "correspondence" to keep it private?
No. Whether something is a public record depends on its content and whether it concerns official functions, not on the label or how it was delivered. An envelope labeled "correspondence" does not transform a public record into a private one.
What is the AG's role here?
Under § 25-19-105(c)(3)(B)(i), the AG can opine on whether a custodian's decision about releasing personnel or evaluation records is consistent with FOIA. The AG can review the actual records (when provided) and reach a conclusion. The AG doesn't enforce FOIA, but the opinion informs the next step (court review under § 25-19-107).
Background and statutory framework
Arkansas FOIA defines public records broadly and creates a strong presumption of access. Section 25-19-105(a)(1)(A) opens public records to inspection and copying except as specifically exempted. The two relevant exemptions for employee-related records are personnel records (§ 25-19-105(b)(12)) and evaluation records (§ 25-19-105(c)(1)).
Personnel records are released subject to the Young v. Rice balancing test: greater than de minimis privacy interest weighed against public interest, with the scale tipped toward disclosure. Evaluation records require all four prongs: suspension/termination, finality, basis, compelling interest.
Records that fit neither category are non-exempt public records. They must be released absent some other specific FOIA exemption.
The opinion's footnote 28 makes a key classification point: "It seems clear that neither of the two requested records can be considered an employee-evaluation record, as they were not 'created by or at the behest of the employer to evaluate an employee.'" That single sentence is the doctrinal hinge. Records the employee herself produced and shared with the board are not records the board created to evaluate her.
Citations
- Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
- Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
- Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
- Ark. Code Ann. § 25-19-105(a)(1)(A) (general access provision)
- Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007)
- Young v. Rice, 308 Ark. 593 (1992)
- Stilley v. McBride, 332 Ark. 306 (1998)
- Thomas v. Hall, 2012 Ark. 66
Source
Original opinion text
Opinion No. 2021-054
July 8, 2021
Susan K. Kendall, Esq.
Kendall Law Firm, PLLC
3706 Pinnacle Hills Parkway, Suite 201
Rogers, AR 72758
Dear Ms. Kendall:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made as legal counsel for Linda English, the Superintendent of the Helena/West Helena School District ("the District"), whom you have deemed to be the subject of the records request. This request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019), which 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 District received a request from a member of the press under the FOIA for "documents that [Ms. English] provided ... to board members in a brown envelope that [Ms. English] verbally described to a board member when giving it to them as 'correspondence.'" You state that this FOIA request was denied pursuant to Ark. Code Ann. § 25-19-105(b)(12) and (c) but that the requester, by and through its counsel, has asked that the denial be reconsidered. You have attached a copy of the original request, correspondence from the requester's attorney, and two documents deemed responsive to the request. You ask me to review the responsive records to determine whether the custodian's decision to withhold the records from release is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision regarding the release of personnel or employee-evaluation records is consistent with the FOIA. That duty is contingent upon the custodian having first classified the record at issue as either a personnel or an employee-evaluation record. Because your correspondence merely states that the "FOIA request was denied pursuant to Ark. Code Ann. § 25-19-105(b)(12) and (c)," it is not apparent how the custodian has classified either of the two responsive records. However, it would appear, based on the face of the records and on the limited facts before me, that the responsive records either constitute personnel records or nonexempt public records. In either case, it is my opinion that the custodian's decision to withhold the records from release is inconsistent with the FOIA.
DISCUSSION
When dealing with employment-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the kind of employment records discussed above, and (2) if so, whether under the specific circumstances the FOIA requires the employment records be released based on the applicable test for disclosure. Your correspondence indicates that the custodian in this case declined to release the requested records "pursuant to Ark. Code Ann. § 25-19-105(b)(12) and (c)." However, I have no information regarding whether the custodian classified the two records at issue as personnel records, as employee-evaluation records, or as one personnel record and one employee-evaluation record. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.
Having reviewed the records at issue, it would appear, based on the face of the records and the limited facts before me, that the requested records may either be categorized as Ms. English's personnel records or as nonexempt public records. It seems clear that neither of the two requested records can be considered an employee-evaluation record, as they were not "created by or at the behest of the employer to evaluate an employee."
In either case, it is my opinion that the custodian's decision to withhold the records from release is inconsistent with the FOIA. If the records constitute nonexempt public records, they plainly are subject to release. If, on the other hand, the records constitute Ms. English's personnel records, they are also subject to release, as I can see nothing from the face of these records or any other information before me that would give rise to the level of a clearly unwarranted invasion of personal privacy under the balancing test described above. Rather, in my opinion, the public's interest in disclosure likely outweighs any privacy interest of the subject of these records.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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