When an internal investigation is finished but no discipline has been imposed yet, can the public get the investigation file under Arkansas FOIA?

Plain-English summary

The City of Little Rock got a FOIA request for the file of an internal investigation that Dr. Cochran had conducted into complaints by Little Rock Police Department employees about their treatment at the department. The custodian, Shella Evans, classified the final investigative report as an "employee-evaluation record" and decided not to release it because no suspension or termination had happened. She also withheld most of the supporting documents in the file, planning to release only those labeled "Supporting Documents Submitted from Complainants."

The AG agreed in part and disagreed in part. Withholding the final investigative report was correct: it fits the definition of an employee-evaluation record (created at the employer's behest to evaluate an employee's job performance), and Arkansas FOIA only releases such records after final administrative resolution of suspension or termination, when the records formed the basis for that discipline, and when there's a compelling public interest. None of those conditions were met here.

But the AG flagged the blanket treatment of the rest of the file. The custodian seemed to lump every other document under the same evaluation-record exemption, which was likely wrong. An investigation file typically contains multiple types of records: the complainants' own complaints (likely personnel records of both the complainant and the employee complained about), employee communications, witness statements, citations to court rulings, even law review articles. Each has to be classified on its own merits. Citizen complaints and unsolicited communications usually qualify as personnel records, not evaluation records. Some items in the file (court rulings, law review articles) are not employee-related at all and have no exemption.

The AG also reminded the custodian that under § 25-19-105(c)(2), public employees are entitled to copies of their own personnel records, regardless of FOIA exemptions. So the complainants who requested the file were entitled to records that constituted their own personnel records.

What this means for you

FOIA custodians and HR offices

Don't apply a blanket exemption to an entire investigation file. The opinion's central correction is that you have to classify each document individually. The final report can be one type, witness statements another, supporting evidence yet another. Walk through each item, decide what it is, and apply the right test. The opinion lists the categories of items typically found in personnel files (employment applications, payroll records, performance evaluations, disciplinary records, recommendation letters, etc.) as a reference point.

If a record is a personnel record (not an evaluation record), the test is whether release would be a "clearly unwarranted invasion of personal privacy." That requires balancing the employee's privacy interest against the public's interest in disclosure, with the scale tipped toward disclosure.

If a record is an employee-evaluation or job-performance record, all four prongs must be met before release: (1) the employee was suspended or terminated, (2) there was a final administrative resolution, (3) the records formed a basis for that discipline, and (4) there's a compelling public interest in disclosure.

Public employees who are subjects of investigations

Under § 25-19-105(c)(2), you have an absolute right to copies of your own personnel and evaluation records, regardless of any FOIA exemption. The opinion specifically cites this. The custodian cannot use the evaluation-record exemption to keep your own records from you.

Complainants and journalists

Citizen and employee complaints that are unsolicited (not generated at the employer's behest) are typically classified as personnel records, not evaluation records. They have to be released unless release would be a clearly unwarranted invasion of privacy under the Young v. Rice balancing test. Unfounded complaints don't get a special exemption either; the AG cited Op. 2011-152 for that point.

If a custodian denies your request with a blanket "evaluation record" rationale, you can push back by asking for individualized classification of each document. Citing this opinion gives you a concrete legal argument.

Common questions

What's the difference between a personnel record and an evaluation record?

A personnel record is anything that pertains to an individual employee but is not an evaluation record. Examples: pay records, leave records, disciplinary actions, promotion or transfer records, employment applications. An evaluation record is created by or at the employer's behest specifically to evaluate the employee's job performance. The categories matter because the exemption tests are very different.

When does the public get an evaluation record?

When all four conditions are met: the employee was suspended or terminated, there was a final administrative resolution, the evaluation record formed the basis for the discipline, and the public has a compelling interest in disclosure. If discipline is still being considered, the records stay confidential.

What if the same document is both?

Arkansas calls those "mixed records." The AG handles them by treating the more restrictive classification as controlling for the parts that fit, while applying the personnel-record test to the parts that fit there. The opinion cites Op. 2020-037 for the mixed-records concept.

Do citizen complaints count as evaluation records?

No. Unsolicited complaints (those not generated at the employer's behest) are personnel records of both the complaining person and the employee complained about. The AG has consistently opined this since at least 2018.

Can the agency deny the entire file when only some of it is exempt?

No. The custodian has to look at each document and classify and analyze it on its own. A blanket denial citing a single rationale is, the opinion says, "likely inconsistent with the FOIA."

Background and statutory framework

Arkansas FOIA, codified at Ark. Code Ann. § 25-19-101 et seq., establishes a strong presumption that government records are open. The two key exemptions for employee-related records appear in § 25-19-105(b)(12) (personnel records to the extent disclosure would be a clearly unwarranted invasion of privacy) and § 25-19-105(c)(1) (employee evaluation or job-performance records, with the four-prong test).

Section 25-19-105(c)(3)(B)(i) is the AG opinion procedure used here: the records custodian, the requester, or the subject of certain employee-related records can ask the AG whether the custodian's release decision is consistent with FOIA. The AG's role is limited to that specific question; the AG doesn't decide whether a record is a public record at all (that's for the custodian) and doesn't act as a finder of fact.

Young v. Rice supplies the balancing test for personnel records. The custodian first asks whether the record contains information of a "personal or intimate nature" giving rise to a greater than de minimis privacy interest. If so, the custodian then weighs that privacy interest against the public's interest in disclosure, measured by whether release would shed light on the workings of government. The scale tips toward disclosure. Stilley v. McBride confirms that the burden is on the person resisting disclosure to show privacy outweighs the public interest.

Thomas v. Hall is the leading Arkansas Supreme Court case on the definition of evaluation records: any records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing the employee's performance or lack of performance on the job. Investigation records about alleged misconduct can fall within this definition.

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)(2) (employee right to own records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• 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

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

Original opinion text

Opinion No. 2021-058
July 14, 2021
Shella A. Evans, Ed.D.
Labor and Employee Relations Manager
City of Little Rock Human Resources
500 West Markham, Suite B18
Little Rock, AR 72201-1428

Dear Ms. Evans:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of 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 City of Little Rock has received a request under the FOIA for "a copy of the investigation files done by Dr. Cochran [investigating] the complaints of [certain named employees of the Little Rock Police Department] concerning their treatment at the Police Department." The requester, who is the attorney for the named employees, "specifically ask[s] for any documents making findings concerning the validity of their complaint and any summary of her findings."

You have attached a copy of the final investigative report that was created by Dr. Cochran, as well as a list of supporting documents contained in the investigative file. You have classified the investigative report as "a performance and/or evaluation record" and have determined that because the test for release of an employee-evaluation or job-performance record has not been met, the report is not releasable "except for any portion of the 'report' that may be considered the personnel record of [the named employees]." Citing the same reasoning, you have also decided that the majority of the documents in the investigative file are not releasable, except for those documents labeled, "Supporting Documents Submitted from Complainants." You ask whether your determinations are 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. You have classified the final investigative report as an employee-evaluation record and, noting that the test for disclosure of an employee-evaluation record has not been met, you have determined that the report is not subject to release. In my opinion, this decision is consistent with the FOIA.

Regarding the other supporting documents contained in the investigative file, it is not clear how those records have been classified. Rather, citing "the aforementioned reasons," you merely state that you believe the documents in that file are not releasable, with the exception of those records labeled, "Supporting Documents Submitted from Complainants." Because I have only seen a list of the supporting documents contained in the investigative file and have not seen the actual records at issue, 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. I can state generally, however, that based on the description of the records and on the limited facts before me, the custodian's decision to provide only the "Supporting Documents from Complainants" is likely inconsistent with the FOIA.

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. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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. 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.

a. Personnel-records exception.

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. 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."

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.

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, employee personnel numbers, marital status, dates of birth, social security numbers, medical information, undercover officer information, driver's license information, insurance coverage, tax information, payroll deductions, and banking information.

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records." 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.

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);
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).

III. Application.

You have stated that the final investigative report you provided with your request for my opinion was created by or at the behest of the City of Little Rock, pursuant to an investigation of the requester's clients' complaints against another employee. Under these stated facts, the report is an employee-evaluation record of the employee being investigated. As an employee-evaluation record, the report cannot be released unless all four elements listed above have been met. Your correspondence indicates that a decision has not yet been made as to what disciplinary action, if any, should be taken. Thus, the threshold "level of discipline" prong of the test has not been met. Accordingly, the final investigative report cannot be released, and your decision not to release this record is consistent with the FOIA.

As for the other supporting documents contained in the investigative file, it is not clear to me how you have classified those records. You cite "the aforementioned reasons" to support your belief that the records categorized as "Supporting Documents from Complainants" are releasable, while the remaining records in the investigative file are not. I must note here that I have not seen any of these records and thus cannot definitively opine about their classification, their releasability, or the need to redact any specific piece of information from an otherwise releasable document. But based solely on your description of these records, it seems likely that your decision to provide the "Supporting Documents from Complainants" to the requesting complainants would be consistent with the FOIA, while your decision to withhold all of the remaining records in the investigative file likely would be inconsistent with the FOIA.

Regarding the "Supporting Documents from Complainants," it appears, again based solely on your description, that they constitute personnel records of the complainants and the personnel records of the complaining employees. Because public employees are entitled to copies of their own personnel records, these records would need to be disclosed to the requesters. Thus, your decision to release the records labeled, "Supporting Documents from Complainants," is likely consistent with the FOIA.

With respect to the remaining documents contained in the investigative file, you have determined that they are not subject to release. It is not entirely clear how you came to this conclusion, but your reliance on "the aforementioned reasons" used in deciding to withhold the final investigative report leads me to believe that you have lumped all of these documents together as employee-evaluation records. While I have not viewed the records themselves, I believe this determination is likely incorrect, at least for some of the records, given the descriptions provided. Again, to be an employee-evaluation record, the record must be created by or at the behest of the employer to evaluate the employee, and it must detail the employee's performance or lack of performance on the job. Records that do not fit this description may be personnel records, or they may be non-exempt public records. For example, the investigative file contains citizen complaints and employee communications, which are probably personnel records, as well as summaries of Supreme Court rulings and a law review article, which are probably non-exempt public records. Consequently, based on what I have before me, your apparent decision to classify all the responsive records in the investigative file as employee-evaluation records and withhold them from release, save for the "Supporting Documents from Complainants," is likely inconsistent with the FOIA. The custodian must review and properly classify each record in the file deemed responsive to the FOIA request and then apply the applicable test for disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General