Can a former Little Rock city employee block release of his termination records under the Arkansas FOIA?

Plain-English summary

The City of Little Rock received a FOIA request for "all records regarding the termination of employment" of a former employee, "including any appeals filed." The records custodian decided the personnel file was generally releasable, but: (1) sensitive personal information (home address, date of birth, telephone number, social security number) would be withheld, and (2) employee-evaluation records would be released only if they formed the basis of a suspension or termination that had reached final administrative resolution.

The former employee's attorney objected, particularly to release of records "surrounding his recent resignation," and asked the AG whether the custodian's plan was consistent with the FOIA. Attorney General Leslie Rutledge's answer: the framework the custodian articulated lines up with the statute and case law. Without seeing the actual records, the AG could not opine on each item, but the rule the custodian was applying was correct.

The opinion walks through the standard Arkansas FOIA personnel-vs-evaluation analysis. Personnel records are presumptively releasable under the Young v. Rice balancing test (with the scale tipped toward disclosure) except where disclosure would constitute a "clearly unwarranted invasion of personal privacy." Evaluation records are closed unless the four-part test is met (suspension or termination, finality, basis, compelling public interest). The custodian's plan honors both frameworks.

Currency note

This opinion was issued in December 2021. The Arkansas FOIA was significantly amended in 2023 with reforms affecting personnel and evaluation records. Verify the current text of § 25-19-105(b) and (c) before relying on this analysis to assess a current request.

What this means for you

If you are a public employee whose termination records are being requested

Based on this opinion, the privacy objection alone is not enough. The custodian has to redact specific items (home address, SSN, dates of birth, etc.) but cannot withhold the substance of the personnel file just because you do not want it released. If the records are evaluation records, ask: was there a suspension or termination, has it been finally resolved, did the records form the basis, and is there a compelling public interest? Resignation in lieu of termination may shift the analysis (see Thomas v. Hall doctrine on constructive terminations).

If you are a city or county records custodian

This opinion is a model of correct framework application. Use it as a template: identify whether each record is a personnel record or an evaluation record, apply the appropriate test, and state which redactions you are making and why. Specifically articulating the framework in your decision letter helps if a § 25-19-105(c)(3)(B)(i) review goes to the AG.

If you are an employment attorney representing a former public employee

Your strongest objection is usually not "privacy" in the abstract but a specific argument about misclassification or a missing prong of the four-part test. Argue that the records are evaluation records (not personnel) when that is true and where the four-part test is harder to meet. Argue that one of the four prongs fails. Document-by-document review is essential.

If you are a journalist seeking termination records of a public employee

Per this opinion's framework, you can expect the records to come out (with sensitive personal items redacted) where there has been a suspension or termination with final administrative resolution. If the employee resigned in advance of termination, ask whether the resignation was constructive or in lieu of termination; that fact pattern can keep the four-part test in play.

Common questions

Q: What's the difference between a personnel record and an evaluation record?
A: Per Thomas v. Hall and the AG's prior opinions, evaluation records are 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. Personnel records are everything else in the employee's file: applications, transcripts, payroll records, transfer records, recommendation letters, leave-without-pay requests, etc.

Q: What if a single document has both personnel and evaluation content?
A: Those are "mixed records," addressed in the AG's prior Op. 2020-037. The custodian must analyze each component and apply the appropriate test, redacting where necessary so that an evaluation-record portion can stay closed even if the personnel portion is released.

Q: Can the custodian redact "sensitive personal information" beyond what the statute lists?
A: The statute and case law list the most-redacted items (personal contact info, SSN, DOB, medical info, etc.). The Young v. Rice balancing test allows additional redactions where a specific piece of information generates a privacy interest greater than the public's interest. But the burden sits on the person resisting disclosure to identify those specifics.

Q: What if the employee resigned rather than was terminated?
A: A clean voluntary resignation typically does not satisfy step one of the four-part test (suspension or termination), which means evaluation records remain closed. Forced resignations or resignations-in-lieu-of-termination can be analyzed under Thomas v. Hall as functionally equivalent to terminations, opening the door to the four-part test.

Q: Does it matter who is asking for the records?
A: Generally no. The opinion confirms the standard rule that the requester's identity and motive are irrelevant to whether a non-exempt record must be released. The custodian's analysis is objective.

Background and statutory framework

The Arkansas FOIA's two-track approach to employee records sits at the intersection of public accountability and individual privacy. The personnel-records track presumes disclosure subject to a balancing test. The evaluation-records track presumes non-disclosure subject to a four-part test. Misclassification can cause both over-disclosure and under-disclosure.

Arkansas case law gives the framework structure. Young v. Rice (1992) created the personnel-records balancing test with a thumb on the scale toward disclosure. Stilley v. McBride (1998) put the burden on the objector. Thomas v. Hall (2012) defined evaluation records and approved the AG's "by or at the behest of the employer" framework. Pulaski County v. Arkansas Democrat-Gazette (2007) confirmed the rebuttable presumption of public-record status.

The custodian's job is to walk every responsive document through this framework. The AG's review under § 25-19-105(c)(3)(B)(i) does not substitute for the custodian's analysis; it tests whether the framework was correctly applied. This opinion is a check-mark on a correctly-applied framework.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007)
• Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
• Thomas v. Hall, 2012 Ark. 66, 9-10, 399 S.W.3d 387, 392-93

Source

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

Original opinion text

Opinion No. 2021-098
December 7, 2021

Mr. Charles D. Hancock, Esq.
Attorney at Law
Hancock Law Firm
610 E. 6th St.
Little Rock, AR 72202

Dear Mr. Hancock:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the requested records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 ("City") has received a request under the FOIA for "all records regarding the termination of employment of [your client], including any appeals filed." The records custodian has determined that the requested information is releasable under the FOIA. Additionally, the custodian has stated, "No sensitive personal information such as address, date of birth, telephone number, or social security information is releasable. Evaluations are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." Your client objects to the release of his personnel file, particularly "information surrounding his recent resignation." You ask whether the custodian's decision regarding the release of the records is consistent with the FOIA.

RESPONSE

My duty under subdivision 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. Because I have not seen any records that the City has determined to be responsive to the instant FOIA request, 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.

However, I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "employee evaluation or job performance" records. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. This is the responsibility of the custodian in the first instance.

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, 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.

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;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• 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;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

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).

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

III. Application.

When dealing with employment-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the two kinds 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. I have no information regarding the custodian's classification of any particular record from your personnel file. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

While I cannot opine on the release of any specific records here, I will note that the custodian has determined that any sensitive personal information, such as your home address, date of birth, telephone number, or Social Security number, must be redacted from any disclosable personnel records. That decision is, in my opinion, consistent with the FOIA. Furthermore, the custodian has stated that any employee-evaluation records "are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." As long as the other two prongs of the test set out above are met, that decision is also consistent with the FOIA.

Finally, as noted above, a FOIA requester's identify or motive for making the request is generally irrelevant to whether a record must be released. 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. The custodian's analysis cannot be based on a requester's subjective motive for wanting the record.

Sincerely,

LESLIE RUTLEDGE
Attorney General