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.[1]  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.[2]  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.[3]  Because the records are held by a public entity, they are presumed to be public records,[4] although that presumption is rebuttable.[5]  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.[6]  For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records”[7] or “employee evaluation or job performance records.”[8]  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.[9]  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.”[10]

 

While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court, in Young v. Rice,[11] 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.[12]

 

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.[13]  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.[14]  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.[15]  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.[16]

 

Whether any particular personnel record’s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.[17]  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.[18]  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.[19]  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.[20]

 

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.[21]  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.[22]  This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.[23] 

 

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.[24]

 

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).[25]

 

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.[26]

 

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,[27] which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

 

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.[28]

 

III.      Application.

 

As described above, when custodians receive FOIA requests for employment-related records, they must make two initial determinations as to each record after considering all the relevant facts and circumstances.  The first determination is whether the requested record meets the definition of either a personnel record or an employee-evaluation record, and the second is whether the record should be disclosed after applying the appropriate test for that type of record.

 

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.[29]

 

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.[30]  Because public employees are entitled to copies of their own personnel records, these records would need to be disclosed to the requesters.[31]  Thus, your decision to release the records labeled, “Supporting Documents from Complainants,” is likely consistent with the FOIA.[32]

 

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.[33]  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

 



[1] Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

 

[2] You also mention the possibility that some portion of the report may be releasable as “the personnel record of Mr. Newcomb’s clients.”  To the extent you are asking me to make this determination for you, this is not a decision I am authorized to consider or make pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i).  I must, therefore, presume that you were merely commenting that you had considered this possibility, but that you have ultimately decided to classify the report as an evaluation record and withhold it in its entirety.

[3] The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions … carried out by a public official or employee ….”  Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019).

 

[4] Id.

 

[5] See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) (“the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions,”’ citing Op. Att’y Gen. 2005-095).

 

[6] This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas.  E.g., Op. Att’y Gen. 97-368; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 205-06 (Arkansas Law Press, 6th ed., 2017).

 

[7] Ark. Code Ann. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter…. [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

 

[8] Ark. Code Ann. § 25-19-105(c)(1): “Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.”

 

[9] See, e.g., Ops. Att’y Gen. 2015-072, 99-147; Watkins, et al., at 202.

 

[10] Ark. Code Ann. § 25-19-105(b)(12).

 

[11] 308 Ark. 593, 826 S.W.2d 252 (1992).

[12] Watkins, et al., at 208.

 

[13] Young, 308 Ark. at 598, 826 S.W.2d at 255.

 

[14] Id., 826 S.W.2d at 255.

 

[15] Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

 

[16] E.g., Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

 

[17] Ops. Att’y Gen. 2006-176, 2004-260, 2003-336, 98-001.

 

[18] Ops. Att’y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

 

[19] See Ops. Att’y Gen. 2019-047, 2018-061.

[20] See Ops. Att’y Gen. 2018-087, 2018-061; see also Op. Att’y Gen. 2014-094 (noting that “neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester.”).  While the requester’s subjective motive cannot be the basis for the decision, it can be considered by the custodian to determine whether it supplies an objective public interest previously unseen.  Op. Att’y Gen. 2014-094 at n.8.

 

It should also be noted that the Legislature has not seen fit to include a generalized “harassment” exemption to the release of otherwise disclosable employee-related records.  Op. Att’y Gen. 2019-047 (and opinions cited therein).

[21] I will refer to this group of records as “employee-evaluation records.”

 

[22] Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387.  See also Ops. Att’y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

 

[23] Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

 

[24] See Op. Att’y Gen. 2020-037 (and opinions cited therein).

 

[25] Ark. Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065.

[26] Watkins, et al., at 238-39 (footnotes omitted).

 

[27] Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”).

 

[28] Cf. Op. Att’y Gen. 96-168; Watkins, et al., at 223.

[29] Your correspondence mentions that some portion of the report may be releasable as “the personnel record of [the attorney’s] clients,” but it is not clear that you have made this determination.  To the extent you are asking me to make this determination for you, this is not a decision I am authorized to consider or make pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i).  I can only presume that you have considered this possibility but have ultimately decided to classify the report as an evaluation record and withhold it in its entirety.  Because the report is clearly not the complainants’ employee-evaluation record—and I have no information to suggest that some portion of the report is maintained as a personnel record for any of the complainants—I cannot say that they would be entitled to the report or any portion of it pursuant to Ark. Code Ann. § 25-19-105(c)(2) (“Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person’s designated representative.”).

 

[30] See, e.g., Op. Att’y Gen. 2018-038 (and opinions cited therein).

[31] See Ark. Code Ann. § 25-19-105(c)(2).

 

[32] This opinion only addresses the complainants’ access to the records at issue.  A different analysis may be necessary with respect to a third party’s request for the records.

 

[33] Supra n.22.