Can a city release a former employee's personnel and termination records when the misconduct involves honesty violations, even though the subject objects?

Plain-English summary

Bella Vista got a FOIA request for a former employee's personnel file. The records custodian decided to release the documents with redactions. The employee, through his attorney, objected and argued: (1) there was no final administrative resolution of his termination because he still had administrative remedies; and (2) there was no compelling public interest in his evaluation records.

The AG reviewed the file (20 pages) and split it: pages 1-8 looked like evaluation records (the records connected to the termination decision), and pages 9-20 were personnel records (job application and similar items). For the personnel records, release with redactions was consistent with the Young v. Rice balancing test under § 25-19-105(b)(12); the AG cited the long line of opinions treating job applications as releasable personnel records.

For the evaluation records, the four-part test under § 25-19-105(c)(1) had to be met. The first prong (level of discipline) was met by the termination. The "finality" question (whether administrative remedies remained) was a fact question the AG punted to the custodian to resolve. On the third prong (basis), no dispute. On the fourth (compelling public interest), the AG noted two important sub-factors:

1. Public-safety position: the AG cited Op. Att'y Gen. 2011-161 and 2005-175 (firefighters analogous to police) for the proposition that compelling public interest can be more readily found in records of "rank-and-file" public-safety employees.
2. Honesty violations: the AG had consistently held that violation of rules of conduct regarding honesty itself gives rise to compelling public interest in disclosure of evaluation records (citing Op. Att'y Gen. 2014-122). The subject's correspondence indicated honesty issues were involved.

Bottom line: the AG could not say the custodian's release decision was inconsistent with FOIA. The records came out.

What this means for you

If you are a public employee facing a termination based on honesty violations

Based on this opinion, your termination records and the supporting documentation are very likely to be released under FOIA after the discipline is final. Honesty violations, by the AG's consistent reading, create the compelling public interest needed for the four-part release test. That holds whether or not the misconduct was publicly reported, and whether or not you are in a senior position. Public-safety roles tip the analysis even further toward release.

If you want to challenge release on "no final administrative resolution" grounds, you need to demonstrate the existence of unexhausted administrative remedies at the time of the request. The custodian decides this in the first instance as a fact question. A bare assertion that something might still be appealable is not enough.

If you are a records custodian or city attorney

Two operational points:

1. The "finality" prong of the four-part test is a custodian fact-finding job. Document what administrative remedies exist for a particular discipline and whether they have been exhausted. If the subject says they have an active appeal, get the underlying paperwork before releasing.
2. Honesty-rule violations are a strong basis for the compelling-public-interest prong, as is a public-safety role. You can rely on the consistent line of AG opinions (Op. Att'y Gen. 2014-122 and others). Document what the misconduct was so the file shows the link.

If you are an employment attorney representing a discharged public employee

The objection paths in this fact pattern that worked elsewhere (privacy interest in personnel data, lack of compelling interest in routine performance issues) do not work well when the discharge basis is honesty. The AG's view is that a violation of an honesty rule is itself a compelling public interest. Your better path may be administrative-remedy procedural objections (not yet final) or specific redaction arguments (medical info, family details) rather than challenging the release as a whole.

Common questions

Q: What does "honesty violation" mean in the AG's analysis?
A: The opinion does not exhaustively define it but treats violations of rules requiring honesty as automatic compelling-public-interest triggers under Op. Att'y Gen. 2014-122. The implication is anything where the misconduct goes to the employee's truthfulness or integrity in their role. Documented dishonesty in reports, falsifying records, lying to supervisors, are typical examples.

Q: How does "finality" work?
A: To satisfy the second prong, the suspension or termination proceeding must have reached final administrative resolution. If the employee still has an active appeal in an administrative grievance process, finality may not be met. The custodian decides this on the facts. The opinion implies that simply asserting unexhausted remedies, without documentation, is not enough.

Q: What is "rank-and-file" public-safety status doing here?
A: The AG has long held that firefighters, police officers, and similar safety roles supply the public-safety dimension that can satisfy compelling-public-interest review even at the rank-and-file level (Op. Att'y Gen. 2005-175 firefighters, 2011-161 police violations directly affecting public safety). Hierarchy still matters for many factors, but a sergeant can still trigger the compelling-interest prong on the right facts.

Q: What about the personnel records side?
A: Job applications, payroll-related documents, and similar items are personnel records. They are releasable under § 25-19-105(b)(12) unless their release would be a clearly unwarranted invasion of personal privacy. The Young v. Rice balancing test puts a thumb on disclosure. Standard redactions for SSN, DOB, marital status, contact info, banking info, and similar items still apply.

Background and statutory framework

Standard Arkansas FOIA framework applies (full discussion in the opinion):

• Personnel records (§ 25-19-105(b)(12)) are released under Young v. Rice two-step balancing.
• Evaluation records (§ 25-19-105(c)(1)) are released only when all four prongs are met: discipline level (suspension or termination), finality, basis, compelling public interest.

This opinion adds two specific factors to the compelling-interest analysis:

1. The cited 2011-161 and 2005-175 opinions establish that public-safety roles supply a stronger public interest in disciplinary records, even for non-senior employees.
2. Honesty violations themselves create compelling public interest, per Op. Att'y Gen. 2014-122.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2011-161 (police records affecting public safety)
• Op. Att'y Gen. 2005-175 (firefighters analogous to police)
• Op. Att'y Gen. 2014-122 (honesty violations create compelling interest)
• Op. Att'y Gen. 2004-260 (custodian decides compelling interest as fact)
• Ops. Att'y Gen. 2019-062, 2017-121, 2010-044, 2005-004 (job applications as personnel records)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2021-075

September 21, 2021

Alicia Canfield, Esq.
Miller Butler Schneider Pawlik Rozzell, PLLC
224 South 2nd Street
Rogers, AR 72756

Dear Ms. Canfield:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as attorney for the subject of the
records, is 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 Bella Vista has received a request
under the FOIA for your client's "personnel file information." You have attached
several documents that the records custodian has identified as responsive to the
request and that she intends to release with redactions. The subject of the records
objects to the proposed release. You ask whether the custodian's decision to
release the records as redacted is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and
standards discussed below, that the custodian's decision to release (as redacted)
the records qualifying as personnel records is consistent with the FOIA.
Additionally, while there may be facts of which I am unaware, I cannot say based
on what is before me that the custodian's decision to release your client's
evaluation records is 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
Bella Vista, 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. And 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.

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.

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. Whether a particular
record meets this definition is a question of fact that can only be definitively
determined by reviewing the record itself. 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.

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. Because the exceptions must be narrowly construed, the
person resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests. The fact that
the subject of records may consider release of the records an unwarranted invasion
of personal privacy is irrelevant to the analysis because the test is objective.

Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.
Additionally, a requester's identity or motive for making a request under the FOIA
is generally irrelevant as to whether a non-exempt public record must be
released. Again, the test under the FOIA for the release of personnel records
asks whether, as an objective matter, the records in question shed light on the
workings of government for the general public. This ordinarily precludes the
custodian from considering any subjective motives or the identity of a requester
when making the determinations whether a record must be disclosed or withheld.

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, including personal
  telephone numbers, personal e-mail addresses, and home addresses (Ark.
  Code Ann. § 25-19-105(b)(13));
• Employee personnel number (Ops. Att'y Gen. 2014-094, 2007-070);
• Marital status of employees and information about dependents (Op. Att'y
  Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently
  working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license number and photocopy of driver's license (Ops. Att'y Gen.
  2017-125, 2013-090);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define. 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. This exception includes records generated while investigating
allegations of employee misconduct that detail incidents that gave rise to an
allegation of misconduct.

Additionally, some employee-related records constitute "mixed records," i.e.,
records that constitute (1) more than one person's evaluation, (2) at least one
person's evaluation and at least one other person's personnel record, or (3) more
than one person's personnel record.

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).

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: (1) 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.

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, which is always a question of fact that must
be determined, in the first instance, by the custodian, taking into consideration all
of the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the
formal job-evaluation process so as to promote honest exchanges in the employee/
employer relationship.

III. Application.

I have reviewed the electronic file you have provided containing 20 pages of your
client's employment-related records. After correctly differentiating which records
are your client's personnel records or evaluation records, and applying the
appropriate test(s) for disclosure, I cannot say that the custodian's decision to
release the records, as redacted, is inconsistent with the FOIA. Furthermore, as to
whether a "compelling public interest" exists in the evaluation records, that is a
question of fact that must be determined, in the first instance, by the custodian,
after considering all of the relevant information.

From the face of the records, the first eight pages of the electronic file appear to be
your client's employee-evaluation records, while the remainder are clearly his
personnel records. As I wrote above, the tests for disclosure between these types
of employee-related records differ greatly. I will address these records in reverse
order.

Again, "personnel records" are all records other than employee-evaluation records
that pertain to an individual employee. From the face of the records you
provided, pages 9-20 clearly meet this definition. For instance, this office and the
leading commentators on the FOIA have repeatedly observed that job applications
of public employees, like the one you provided, generally meet this definition.
So, too, do the remainder of this group of records. As such, they are subject to
disclosure except "to the extent that disclosure would constitute a clearly
unwarranted invasion of personal privacy." In my opinion, the custodian's
decision to release these records, as redacted, is consistent with the FOIA.

Regarding your client's evaluation records, you assert that two of the four prongs
of the disclosure test have not been met; to wit, that there has not been a final
administrative resolution to your client's termination, and that there is not a
compelling public interest in the records' disclosure. You provide no further
information in support of these assertions. As to your first claim, whether or not
your client has any administrative remedies available is a question of fact and one
best suited for the custodian to determine.

Your primary assertion is that there is no compelling public interest in the records.
Whether a compelling public interest in an employee's evaluation records exists is
similarly a question that must be answered in the first instance by the custodian
after taking into consideration all of the facts and circumstances.

Various factors bear on this analysis. First, as noted above, an employee's rank in
the hierarchy may bear on the strength of the public's interest in his performance.
As this office has opined, however, a compelling public interest can be more easily
found in the records of "rank-and-file" employees in public-safety positions.

Far more pertinent to the analysis may be the kind of misconduct that led to your
client's termination. According to your correspondence, issues of honesty, in
other words, a betrayal of the public trust, are involved in this case. This office
has consistently held that the violation of rules of conduct regarding honesty in
itself gives rise to a compelling public interest in disclosure of employee-
evaluation records.

I readily acknowledge that there may be facts of which I am unaware. But based
on what is before me, I cannot say that the custodian's decision to release your
client's evaluation records that led to his termination is inconsistent with the
FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General