Opinion No. ( 1996 )

Janice K. Burt, Assistant Supervisor/Jailer Paul Phillips, Dispatcher/Jailer Carol Hein, Dispatcher/Jailer Annie Evans, Dispatcher/Jailer Cabot Police Department P.O. Box 1113 Cabot, Arkansas 72023

Ladies and Gentleman:

This is in response to your request for an opinion, pursuant to the provisions of A.C.A. § 25-19-105(c)(3)(B), on whether certain records maintained by the Cabot Police Department pertaining to each of you is subject to disclosure under the "Arkansas Freedom of Information Act" ("FOIA"), codified at A.C.A. §§ 25-19-101 to -107 (1987 and Supp. 1995). You have enclosed the records for my review.

It is my opinion that if none of you have been suspended or terminated with regard to the incident in question (as is my understanding), the records pertaining to you are not subject to inspection and copying under the FOIA.

In my opinion the records you have attached to your opinion request are "employee evaluation or job performance records" for purposes of the FOIA. This office has defined such records as including those which "detail the performance of lack of performance of an employee, within the scope of his employment, regarding a specific incident or incidents." The FOIA provides, with respect to the release of "employee evaluation or job performance records," that such records:

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.

A.C.A. § 25-19-105(c)(1) (Supp. 1995).

"Employee evaluation or job performance records" are not subject to inspection and copying under the FOIA unless the employee has been suspended or terminated and all of the other factors above are present.

It has been stated that:

The exemption for evaluation records reflects the public interest in maintaining an effective public employee evaluation system as well as the privacy interest of employees. Without an exemption for such records, supervisory personnel who perform the evaluations may not be candid in assessing employee performance. Also, routine disclosure of the records could undermine one important objective of the evaluation process — identification of weaknesses with an eye toward fostering improvement — by revealing an employee's deficiencies before he has an opportunity to correct them. . . . These requirements are designed to ensure that evaluation records are not released prematurely and that disclosure will be made only when the records are relevant to employee performance deficient enough to merit suspension or termination.

Watkins, The Arkansas Freedom of Information Act (mm Press, 2d Ed. 1994), at 131, 133.

The records you have attached to your request are "employee evaluation or job performance records" and are not available for public inspection under the FOIA absent a suspension or termination to which the records are relevant.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh