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STATE O F ARKAN SAS

ATTO RN EY G EN ERAL
LES LI E RUT LEDGE

Opinion No. 2018-023

March 5, 2018

Carl E. Geffken, City Administrator


623 Garrison Avenue, Room 30
P.O. Box 1908
Fort Smith, AR 72902

Dear Mr. Geffken:

You have requested my opinion regarding the Arkansas Freedom of Information


Act ("FOIA"). Your request-made as the records' custodian-is based on Ark.
Code Ann. § 25-19-105( c)(3)(B)(i) (Supp. 2017). This subsection authorizes the
custodian, requester, or the subject of personnel or employee evaluation 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.

You report that you have received a FOIA request for records pertaining to the
recent suspension of a City employee. Specifically, a representative of the local
news media has requested "any and all information, data - including videos - and
other materials pertaining to [the] situation." You state that you have "determined
that the requested records consist of employee evaluation and job performance
records that are exempt from release under the FOIA." You further state the
following regarding your decision:

The City employee in question was suspended for his conduct;


however, I have determined that the implicated records are exempt
from disclosure because no compelling public interest would be
served by their release. The disciplined employee is a relatively low
ranking employee within the City's employee hierarchy, his
infraction did not involve a misuse of public money, nor did it
involve any interaction with the public. Furthermore, the
employee's misconduct did not involve a breach of the public trust
or gross incompetence.

323 200 · L ITTL E ROC K. ARKAN SAS 7220 1


CENTER STREE T. SU ITE
TEL EPHONE (501) 682-2007 · FAX (50 1) 682-8084
ARKAN SASAG.GOV
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 2

You have provided the records, and you have asked for my opinion on whether
your determination that the records are exempt from disclosure is consistent with
the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision as to the release of


personnel or employee-evaluation records is consistent with the FOIA. Having
reviewed the records, it is my opinion that your decision is contrary to the FOIA.
In my opinion, with a few possible exceptions, these records are subject to
disclosure as either personnel or evaluation records (although one personnel record
requires redaction), or as simply non-exempt public records.
It appears that you have lumped all the records together as employee-evaluation
records and declined to release based on that exemption. Clearly, however, many
of the records are not evaluation records. I will review the definitions and point to
a few of the records to illustrate the error. But I will not undertake to reclassify
each record. It is the custodian's duty in the first instance to classify each
employee-related record based on these definitions, and then apply the relevant
test for disclosure.
It is sufficient here to state that in my opinion, the test for the disclosure of the
records that constitute personnel records and employee-evaluation records requires
that these records be disclosed, with one noted redaction to a personnel record.
Specifically, regarding the evaluation records, I believe it is beyond question that
the public's interest in disclosure is compelling, when considering the nature of
the infraction-which is extremely offensive and potentially unlawful-together
with the employee's position as a manager with responsibility to ensure
compliance with the directives he violated.

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 seem to be satisfied. The request was made to the City of
Fort Smith, which is a public entity subject to the FOIA. As for the second
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 3

element, 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 which constitute a
record of the performance or lack of performance of official functions ... carried
out by a public official or employee .... " 1 There is a rebuttable presumption that
documents kept by an entity subject to the FOIA are public records.2 Here, you
appear to have classified as public records all of the documents forwarded for
review. I will therefore proceed as though the documents are public records that
must be disclosed, unless an exemption provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two types of records normally found
in employees' personnel files: 3 "personnel records" and "employee evaluation or
job performance records." 5 The test for whether these two types of documents
may be released differs significantly.

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2
See Op. Att'y Gen. 2010-044.
3
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).
4
Ark. Code Ann. § 25- l 9-105(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."
5
Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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."
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 4

When custodians assess whether either of these exceptions applies to a particular


record, they must make two determinations. First, they must properly classify the
record, that is, 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 FOIA does not define "personnel records." But this office has consistently
interpreted the term broadly to encompass all records other than employee
evaluation and job performance records (referring to herein collectively as
"employee-evaluation records") that pertain to individual employees. 6 A public
record must sufficiently relate to an individual employee or former employee to
qualify as that employee's personnel record. 7 As this office has previously noted,
it seems certain that "personnel records" refers to those records kept in connection
with a public employee's employment. 8 Documents properly classified as
personnel records are open to public inspection and copying except "to the extent
that disclosure would constitute a clearly unwarranted invasion of personal
privacy. " 9

The FOIA also does not define the phrase "clearly unwarranted invasion of
personal privacy." However, the Arkansas Supreme Court has established a
balancing test to determine whether release of a personnel record would violate
this standard. In Young v. Rice, 10 the Court weighed the public's interest in
accessing the records against the subject of the record's interest in kee?iing them
private. The test takes place with the scale tipped in favor of disclosure. 1

6
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
7
See Op. Att'y Gen. 2012-001.
8
Op. Att'y Gen. 93-337.
9
Ark. Code Ann. § 25-19-105(b )(12) (Supp. 2017).
10
308 Ark. 593, 826 S.W.2d 252 (1992).
11
Watkins, et al., at 208.
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 5

The balancing test has two steps. First, the custodian must assess whether the
information contained in the personnel records is of a personal or intimate nature
such that it gives rise to a greater than de minimis privacy interest. 12 If the privacy
interest is merely de minimis, then the thumb on the scale favoring disclosure
outweighs the privacy interest and the record must be disclosed.

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. 13 Exceptions under the FOIA must be narrowly construed,
so the subject resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests. 14 Whether the
release of any particular personnel record would constitute a clearly unwarranted
invasion of personal privacy is always a question of fact. 15 However, because the
balancing test is objective, whether the subject of the records considers their
release an unwarranted invasion of personal privacy is irrelevant to the analysis. 16

b. Employee-evaluation exception.

The FOIA likewise does not define "employee evaluation or job performance
records." 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. 17 Employee-evaluation records include records generated
while investigating possible employee misconduct and that detail incidents that
. to an a11 egat10n
gave nse . o f m1scon
. duct. 18

12
Young, 308 Ark. at 598, 826 S.W.2d at 255.
13
Id., 826 S.W.2d at 255.
14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
16
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

17
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.
18
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 6

A document properly classified as an employee-evaluation record 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). 19

As for the fourth condition, 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. 20

These commentators also note that "the status of the employee" or "his rank
within the bureaucratic hierarchy" may be relevant in determining whether a

19
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
20
Watkins, et al., at 238-39 (footnotes omitted).
Carl E. Geffken
City Administrator
Opinion No. 2018-023
Page 7

"compelling public interest" exists. 21 It also bears noting that numerous previous
opinions of this office have stated that the violation of policies and rules designed
to avoid any undermining of the public trust itself gives rise to a compelling public
interest in the disclosure of employee-evaluation records. 22

The primary purpose of this exception is to preserve the confidentiality of the


formal job-evaluation process to promote honest exchanges in the
employee/employer relationship. 23 As with personnel records, whether a record
qualified as an employee-evaluation record-and whether it is exempt from
disclosure-are questions of fact that must first be answered by the custodian after
considering the relevant information.

III. Application.

Having reviewed the records, I must first note that the majority are not properly
classified as employee-evaluation records. Indeed, some of the records are neither
personnel nor evaluation records. For example, the excerpt from an employee
handbook regarding computer-related policies and directives plainly does not meet
either definition discussed above. Before further addressing this point, however, I
must emphasize that regardless of their proper classification, it is my opinion that
the records are subject to disclosure because the respective tests for withholding
them are not met.

Many of the records are email communications that address scheduling matters
and contain no details regarding any employee's job performance. For example,
several emails dated January 11, and February 3, 14, and 24, simply address
setting a meeting on a staff issue. The subject line of most of these emails appears
to suggest the possibility of some employee-disciplinary action, but that is not
21
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.").
22
See, e.g., Ops. Att'y Gen. 2010-055 (deeming a compelling public interest to exist when
records "reflect that the suspensions occurred as a result of the violation of rules aimed at conduct
which manifestly could undermine the public trust.. .. ") and 97-400 ("[I]t is my opinion that the
nature of the problem that led to the suspension compels disclosure in this instance where the
activities detailed in the records violated administrative rules and policies aimed at conduct which
could undermine the public trust.. .. ").
23
See Op. Att'y Gen. 96-168; Watkins, et al., at 223.
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City Administrator
Opinion No. 2018-023
Page 8

alone sufficient for them to qualify as employee-evaluation records. Additionally,


documents that were not initially employee-evaluation records do not later become
such merely because they are later made part of an internal investigation. 24

When viewed together, and in the light of the surrounding circumstances, these
emails might sufficiently pertain to an individual employee, such that they
constitute personnel records. But importantly, I can see nothing from the face of
these records that would rise to the level of a clearly unwarranted invasion of
personal privacy under the judicial test described above.

Several January 12 and 14 emails, by comparison, clearly detail an employee's job


performance and appear to have been created by or at the behest of the employer
for evaluation purposes. These emails, and an attached "Disciplinary
Memorandum," are properly classified as employee-evaluation records. But it is
my opinion, based on the above guidelines and previous opinions of this office,
that the records qualifying as employee-evaluations are not exempt from
disclosure. 25 I believe it is beyond question that the public's interest in disclosure
is compelling, when considering the nature of the infraction-which is extremely
offensive and potentially unlawful-together with the employee's position as a
manager with responsibility to ensure compliance with the directives he violated.
Finally, regarding a video that was included among the records provided with your
request for my opinion, this plainly is not an employee-evaluation record because
it was not created by or at the behest of the employer. Rather, it is a personnel
record because it sufficiently relates to an employee and was used in an internal
investigation of that employee. 26 And in my opinion, its release would not

24
See Ops. Att'y Gen. 2015-057, 2007-027, 2005-032.
25
A possible exception applies in the case of a "Chain of Custody Statement" attached to a
January 25 email and a February 1 email regarding "laptop review." I cannot determine from the
face of the Statement whether the January 23 and January 24 entries were created by or at the
behest of the employer for evaluation purposes. The same is true of the February 1 email. I
consequently cannot determine the proper classification of these records. If they are evaluation
records, the information before me indicates they are exempt from disclosure because they
apparently did not form the basis for any suspension or termination. If, on the other hand, they
are not evaluation records, then I believe they are properly classified as personnel records. And
in my opinion, the public's interest in disclosure outweighs any privacy interest of the subject of
these records.
26
Accord Op. Att'y Gen. 2013-002.
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City Administrator
Opinion No. 2018-023
Page 9

constitute a clearly unwarranted invasion of the employee's personal privacy


under the balancing test described above. In my view, a substantial public interest
attends the employee's behavior and the subject matter of the video. And I believe
that interest is sufficient to outweigh any privacy interest of the employee under
these circumstances.

While it is therefore my opinion that the video is subject to disclosure, I believe it


is necessary to shield the non-employee's identity based on that individual's
constitutional privacy interest. The Court has recognized that the constitutional
right of privacy can supersede the specific disclosure requirements of the FOIA, at
least with regard to the release of documents containing constitutionally
protectable information. 27

CONCLUSION

In sum, it is my opinion that your decision is contrary to the FOIA. I lack


sufficient information to determine the proper classification of one record. And
one personnel record requires redaction. But in my opinion, the remainder is
subject to disclosure.
Sincerely,

~- ~· /?1--fo
LESLIE RUTLEDGE
Attorney General

27
McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989). For a discussion of
this issue, see generally Op. Att'y Gen. 2003-015.