Question: Is the custodian’s decision to release the requested records consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: In my opinion, the custodian has correctly classified the termination letter, the letter of reprimand, and the investigation file as employee-evaluation or job-performance records. And because the four-part test for release of such records appears to be met, the custodian’s decision to release the records is also consistent with the FOIA. As discussed in the opinion, however, the names of other officers may need to be redacted from the records before release.
Question 1: Does Arkansas law allow a public school to grant the request of a parent, legal guardian, or person standing in loco parentis who wishes an enrolled student to attend a course in religious moral instruction taught by an independent entity off campus during the school day?
Brief Response: Yes. Under a plain reading of A.C.A. § 6-18-209(a), school districts have authority to “adopt attendance policies” for their schools. The statute does not limit that authority to any specific types of attendance-related decisions.
Question 2: If the answer to the first question is yes, what limits, if any, would apply to such a policy if adopted by a public school?
Brief Response: As discussed more fully in the opinion, there are at least three limitations a school district should consider in adopting a policy as described in Question 1.
Question: Is the custodian’s decision to withhold the requested records consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: The custodian’s decision to withhold all records under A.C.A. § 25-19-105(b)(12) is mostly inconsistent with the FOIA. The majority of the records are “personnel records” subject to release with any necessary redactions. By contrast, the termination letter and certain emails from the city attorney are employee-evaluation or job-performance records, which should be withheld unless the public has a compelling interest in their disclosure—a determination the custodian must make by applying the appropriate test. The custodian’s decision to withhold the social worker’s letter under the personnel records balancing test appears consistent with the FOIA.
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