Mr. Daniel Shue Prosecuting Attorney Twelfth Judicial District 901 South B Street, Suite 209 Fort Smith, Arkansas 72901
Dear Mr. Shue:
This is a supplemental/revised opinion as a follow-up to the most recent Opinion issued to you assigned the number 2011-051. In it, I reviewed your decision to withhold certain records in response to a request for documents under the Arkansas Freedom of Information Act (“FOIA”). As I noted on page 8 of the previous opinion, the public’s right to access personnel records pertaining to elected officials is enhanced over and above records pertaining to non-elected employees. I concluded that 3 of the 8 records in question were subject to release. However, upon further reflection, I believe that I should have concluded that all 8 records should be released as personnel records, with certain redactions.
As I explained in Opinion 2011-051, a public record is an employee-evaluation record when (a) it is created by or at the behest of the employer (b) to evaluate an employee. But none of the records at issue in this case were created with the intent to evaluate the employee because the person being complained about was an elected public official, which means there is no entity that can discipline him, whether by suspension or termination. Thus, the records do not meet the definition of employee-evaluation records.
Instead, the records are personnel records of both the complaining employees and the public official. The definition of personnel records and the test for their release are described in the previous opinion. In my opinion, the documents are personnel records, the release of which would not constitute an unwarranted invasion of personal privacy. However, the names of the complainants and other information that could identify them must be redacted for the reasons stated on page 8 of the previous opinion.