Question: Are the custodian’s decisions to classify the requested records as personnel records and employee-evaluation records and to release those records with redactions consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: In my opinion, the custodian’s decisions are partially consistent with the FOIA. The custodian has correctly classified the first three groups of records as personnel records and has properly determined that they are subject to release, with the employee’s personnel number redacted. With respect to the fourth set of records, I cannot definitively say whether every record in that set has been properly classified as an employee-evaluation record because the copies provided to this Office contain extensive redactions. I can say, however, that at least the first portion of that set—the Notice of Disciplinary Action—qualifies as an evaluation record. The custodian’s determination that the employee-evaluation records are releasable is also consistent with the FOIA because the employee was suspended, his suspension is final, the records relate to that suspension, and there is a compelling public interest in their disclosure. The custodian has, however, made extensive redactions to the records that she has classified as employee-evaluation records. As a general matter, when an employee-evaluation record is subject to disclosure, it should be released in its entirety, and redactions should be made only if a separate exemption applies. If the custodian’s redactions to the evaluation records are based on A.C.A. § 25-19-105(b)(12)’s balancing test, those redactions are improper. I cannot definitively reach that conclusion, however, because the custodian has not provided this Office with unredacted copies of the records and has not identified the basis for the redactions. Under A.C.A. § 25-19-105(a)(3)(B), if responsive records are subject to exemptions, the custodian must identify the applicable exemptions.
Question 1: Were Hospice of the Ozarks, Inc.’s Articles of Incorporation violated or disregarded?
Question 2: Was the board of Hospice of the Ozarks, Inc. lawfully constituted at the time the bylaws were amended?
Question 3: Were fiduciary duties owed to Hospice of the Ozarks, Inc. and its charitable purpose upheld?
Question 4: Is any corrective or enforcement action warranted under Arkansas law?
Brief Response: Unfortunately, I am unable to respond to your specific questions because they require factual determinations regarding the actions of private nonprofit corporations, the appointments of directors, the amendment of bylaws, and whether particular individuals complied with fiduciary duties. This Office has consistently declined to resolve questions of fact in the context of an Attorney General opinion. Additionally, your questions concern the rights, duties, and actions of private parties under specific corporate governing documents. This Office is not positioned to interpret the specific terms of contracts and other agreements, nor is it authorized to engage in the interpretation of contracts entered into by private parties. Such matters must instead be addressed by private counsel or by a court.
Question: Is the custodian’s decision to release the requested records with redactions consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: This request poses several specific questions that extend beyond asking whether the custodian’s decision regarding employee-related records is consistent with the FOIA. I cannot address those questions because they fall outside the limited authority granted to this Office under A.C.A. § 25-19-105(c)(3)(B)(i). Further, several categories of records identified in the request likely do not constitute personnel or evaluation records. Therefore, any custodial decisions concerning those records likewise fall outside the scope of my review. The only decision that appears to fall within my statutory authority to review is the city’s determination that certain records in the “Training Division file” are not subject to disclosure under A.C.A. §§ 25-19-105(b)(12), -105(b)(13), and -105(c)(1). Although I have not reviewed the records at issue, employment applications, background investigations, and personal history statements are ordinarily best classified as personnel records under the FOIA. As such, they are generally subject to disclosure unless the release of particular information would constitute a clearly unwarranted invasion of personal privacy or another exemption applies. Accordingly, personnel records ordinarily should not be withheld in their entirety merely because they contain exempt information. Rather, the custodian should redact exempt information and disclose the remainder of the record. Because I have not reviewed the records, however, I cannot say whether any specific record has been properly classified or redacted. Instead, I have set out the legal standards governing the disclosure of personnel records and employee-evaluation records under the FOIA.
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