Mr. Jack Wagoner III Mitchell, Blackstock, Barnes, Wagoner and Ivers 1010 West Third Street Little Rock, AR 72201
Dear Mr. Wagoner:
This is in response to your request for an opinion pursuant to the Arkansas Freedom of Information Act ("FOIA"), which provides, under A.C.A. §
It must be initially noted that not having reviewed the actual records in question, I cannot specifically determine whether the custodian has properly denied access to particular documents. I will, however, set forth what I believe is the applicable law guiding the custodian's decision.
As a general matter, "employee evaluation or job performance records" (including "preliminary notes and other materials") are disclosable only if the following three conditions are met: (1) There has been a final administrative resolution of any suspension or termination proceeding; (2) the records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and (3) there is a compelling public interest in the disclosure of the records. A.C.A. §
It is my understanding that there has been a termination decision in this instance and that a grievance process is ongoing. Because there has been no final administrative resolution of the termination proceeding, it appears that the custodian has properly denied your request if the records sought do, in fact, constitute "employee evaluation or job performance records."
It must be initially noted in this regard that the FOIA does not define the phrase "employee evaluation or job performance records." I have previously opined that in the absence of a statutory definition, the phrase may reasonably be construed to refer to records which detail the performance or lack of performance of an employee with regard to a specific incident or incidents. See Op. Att'y Gen. Nos.
One important point should be mentioned in this regard, however. This exemption is limited to records created by or at the behest of the public employer. This conclusion is consistent with previous opinions involving sexual harassment allegations. See, e.g., Op. Att'y Gen.
Thus, in my opinion, any documents not created by, or pursuant to the actions of the employer in evaluating or documenting the employee's job performance are not subject to the test found in A.C.A. § 19-25-105(c)(1) for the release of evaluation or job performance records. Accord Op. Att'y Gen.
As for the proper classification of records as evaluation or job performance records, this may raise factual issues; and indeed it appears that you dispute the actual purpose and nature of the investigation at issue in this instance. I cannot make any conclusive determination in this regard based upon the information provided. The agency in this instance has stated that the investigation "relates to the job performance of the security guard [,]" and that "[t]his information was used during his Administrative Review." Letter from Judy Besancon,supra, at 1. It is unclear from these statements whether the records in question were, in fact, created by or pursuant to the actions of the employer in evaluating or documenting the employee's job performance. This is, in my opinion, the relevant inquiry for purposes of applying A.C.A. § 19-25-105(c)(1).
This issue is not subject to resolution in the limited format of an opinion from this office. I lack both the resources and the authority to act as a factfinder in resolving factual disputes. While I am thus unable to offer a conclusive response, the foregoing will hopefully offer sufficient information to guide the factual review.
Assistant Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:eaw/cyh