Can a city release a list of HR complaints against a named public employee under Arkansas FOIA, including allegations that turned out to be unfounded?

Plain-English summary

The City of Little Rock got a FOIA request for "all open and/or closed Human Resource complaints against [a named employee] with the disposition of offenses/allegations." The custodian, Markett Humphries, decided to release a list responsive to the request. The list named the complainants, the employee complained about, the dates of the alleged incidents, and the nature and disposition of the allegations. Humphries asked the AG whether the release was consistent with FOIA.

The AG agreed it was. The list is a personnel record (it pertains to individual employees but isn't an evaluation record). The test for releasing a personnel record is whether release would be a "clearly unwarranted invasion of personal privacy," applied via the Young v. Rice balancing test.

Step one: does the record contain information of a "personal or intimate nature" creating a greater than de minimis privacy interest? Maybe, but the AG didn't think much of one here. Step two: does the public's interest outweigh the privacy interest? Yes, because a list showing how the city handles HR complaints sheds light on a city agency's performance of its official duties.

The AG made one specific point worth highlighting: even pending or unfounded allegations don't get a special exemption. The opinion cites Op. 2013-002 and Op. 2011-152 for that rule. Discomfort about being named in a complaint, even one that's unfounded, is not by itself enough to outweigh the public interest.

Note: complaints generated unsolicited (not at the employer's behest) are personnel records. If they were solicited or generated at the employer's behest as part of an evaluation, they could be evaluation records instead, which has a much stricter release test. The opinion flags this distinction in a footnote.

What this means for you

FOIA custodians

When a FOIA request comes in for HR complaints, build a list with the relevant fields and run it through the personnel-record balancing test. The opinion endorses release of: complainant names, the named employee's name, dates, the nature of the allegation, and the disposition. Required redactions still apply: personal contact info, dates of birth, SSNs, medical info, etc., per the standard list in § 25-19-105(b)(13) and the AG opinion catalog.

If the complaints were created by or at the employer's behest as part of an investigation or evaluation, you may be looking at evaluation records instead, which require all four prongs (suspension/termination + finality + basis + compelling interest) before release. Watch for that distinction.

Public employees who are subjects of HR complaints

Your discomfort about an unfounded or pending complaint being public, by itself, is not legally sufficient to keep it confidential. The opinion is direct on this point. If you want a record kept private, you have to point to either a specific FOIA exemption or a specific privacy interest that outweighs the public's interest in HR oversight.

You retain the right under § 25-19-105(c)(2) to your own personnel records. You can request your own records and review what the agency holds.

Citizens, journalists, and watchdogs

This opinion is a useful citation when an agency tries to withhold an HR complaints list. The strong public interest the AG identified ("the workings of government for the general public") cuts in favor of releasing complaints data, especially in aggregate. If you get a denial that conflates pending allegations with privacy, the opinion gives you ammunition to push back.

Complainants

If you filed an unsolicited complaint about a public employee, your name and the contents may be releasable. Filing a complaint with a public agency is different from filing a private grievance; it can become part of the public record.

Common questions

Are pending complaints releasable?

Yes, the same way closed complaints are. The opinion specifically says: "even if the allegations, most of which are pending, are determined to be false or unfounded, that does not, standing alone, give rise to a personal privacy interest sufficient to outweigh the public's interest." There is no FOIA exemption for unfounded complaints.

What about the complainant's name?

If the complaint is unsolicited, both the complainant's name and the named employee's name appear in personnel records of both. Release is governed by the same balancing test. The complainant typically has a smaller privacy interest in being identified than the named employee does. Both are usually releasable.

Why is this different from an investigation file?

An investigation file generated at the employer's behest can produce evaluation records, which require suspension or termination plus three other conditions before release. A list of complaints with dispositions doesn't go through the evaluation pipeline; it's just a roster of who complained about whom and what happened. That's a personnel record.

Can the agency redact the names?

The opinion didn't endorse redacting names. The required redactions list is narrow: personal contact info, dates of birth, social security numbers, medical information, undercover officer identities, driver's license info, insurance coverage, tax info, payroll deductions, banking info. Names are not on that list. If a particular case had unusual privacy concerns, the agency could try to argue Young v. Rice for redaction, but discomfort about being named is not enough.

What if I'm the named employee and the complaint is settled?

The disposition is part of the record, and the public's interest is generally in how the agency handled the complaint. If you have a specific privacy interest beyond ordinary discomfort (a medical or family disclosure embedded in the complaint, for instance), you can flag that for the custodian to consider for redaction. But the existence of a complaint and its outcome are typically releasable.

Background and statutory framework

Arkansas FOIA, codified at § 25-19-101 et seq., creates a strong presumption of access to public records. The relevant statutory framework here:

Section 25-19-105(b)(12) exempts personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Section 25-19-105(c)(1) is the much stricter exemption for employee evaluation or job-performance records. Section 25-19-105(b)(13) requires redaction of personal contact information.

Personnel records are records pertaining to individual employees that are not evaluation records. The opinion cites the standard list (employment apps, transcripts, payroll documents, transfer records, insurance forms, performance evaluations, recommendation letters, disciplinary actions, leave requests, certificates, legal documents like subpoenas).

Young v. Rice supplies the balancing test. The Arkansas Supreme Court there said the test "requires that the public's right to knowledge of the records be weighed against an individual's right to privacy. Because section [25-19-105(b)(12)] allows warranted invasions of privacy, it follows that when the public's interest is substantial, it will usually outweigh any individual privacy interests and disclosure will be favored."

Stilley v. McBride confirmed that the burden is on the person resisting disclosure to show that privacy interests outweigh the public's interest. The public interest is measured by whether disclosure "shed[s] light on an agency's performance of its statutory duties or otherwise let[s] citizens know 'what their government is up to.'"

The opinion's footnote 31 cites Ops. 2013-002 and 2011-152 for the rule that unfounded complaints don't get a special FOIA exemption.

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)
• 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
• Department of Defense v. FLRA, 510 U.S. 487 (1994)

Source

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

Original opinion text

Opinion No. 2021-060
July 23, 2021
Markett L. Humphries, J.D., M.P.A.
FOIA Coordinator
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Ms. Humphries:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, is made pursuant to 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 "all open and/or closed Human Resource complaints against [a named employee] with the disposition of offenses/allegations." You state that the requester "has clarified that a list of those complaints, along with the respective disposition, would comply with his request." You have attached such a list that you believe is responsive to this request and that you intend to release. You ask whether your decision to release the document is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Based on the face of the record in question, it appears the custodian's decision to release the record is consistent 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.

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."

While the FOIA does not define the phrase "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.

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 of public employees, 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.

If a document meets the above definition, the document cannot be released unless all the following elements have been met: the employee was suspended or terminated, there has been a final administrative resolution, the records formed a basis for the discipline, and the public has a compelling interest in disclosure.

III. Application.

Having reviewed the record you deem responsive to the request, I cannot say that your determination that it is a personnel record is inconsistent with the FOIA. As explained above, "personnel records" are all records other than "employee evaluation or job performance records" that pertain to individual employees. This document lists the names of the individual complainants, the name of the complained-about employee, the dates of the alleged incidents, and the nature and disposition of the allegations. Thus, this record seems to pertain to individual employees. However, it does not meet the above definition of an "employee evaluation or job performance record."

I will note that, based on the information I have before me, these complaints appear to be unsolicited. It has long been this office's view that employee complaints that are unsolicited by the employer qualify as personnel records. This office has consistently opined that when a complaint was unsolicited, that is, it was not prepared by (or at the behest of) the employer, the complaint is not an employee-evaluation record. Rather, it is the personnel record of both the public employee complained about and the complaining employee.

I have no information regarding the creation of the complaints themselves or of this particular record that leads me to question their classification as anything other than personnel records. However, should information arise that one or more of the complaints were made by or at the behest of the employer, that could lead to a different conclusion.

As a personnel record, the list must be released unless doing so "would constitute a clearly unwarranted invasion of personal privacy." The test for the disclosure of personnel records is a balancing test, which requires custodians to weigh the employee's privacy interest in the record against the public's interest in obtaining the record. The public's interest is measured by the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties or otherwise let citizens know 'what their government is up to.'"

Your correspondence states that you believe the list, as a personnel record of the complainants and the subject of the complaints, "is subject to disclosure since this specific record does not constitute a 'clearly unwarranted invasion of personal privacy' for any employee." Your determination that the balancing test requires the disclosure of this record appears consistent with the FOIA. The public has a strong interest in the disclosure of the list because it sheds light on a city agency's performance of its official duties. By contrast, the employees have a comparatively light privacy interest in the document. This is true even for the employee against whom the allegations are made. Even if the allegations, most of which are pending, are determined to be false or unfounded, that does not, standing alone, give rise to a personal privacy interest sufficient to outweigh the public's interest. There is no exemption under the FOIA for an unfounded complaint.

Sincerely,

LESLIE RUTLEDGE
Attorney General