Opinion No. ( 2011 )

Ms. Yvonne Kline Finance Director City of Eureka Springs

44 South Main Street Eureka Springs, Arkansas 72632

Dear Ms. Kline:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). The basis for your request is A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2009), which authorizes the custodian, requester, or the subject of personnel, employee evaluation, or job performance records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

You state that you have received a FOIA request for all personnel records of a former employee of the City of Eureka Springs who was terminated by the City. As custodian of the records at issue, you report that you know some personal information must be redacted before the records may be released; but you express uncertainty about employee evaluation records. You are concerned in particular about the possible effect of a separate statute, A.C.A. § 11-10-314, which contains a confidentiality requirement with respect to certain Department of Workforce Services information. You state that the records at issue include correspondence from the City to the Department of Workforce Services relating to the former employee's termination.

RESPONSE

Please note that I have enclosed a copy of Attorney General Opinion2010-057, which I believe adequately addresses your concerns. I direct your attention specifically to pages 3 through 5 of the opinion. As explained therein, A.C.A. § 11-10-314 can constitute an exception to the FOIA for specific types of information.¹ I have not seen the records in question and therefore cannot opine on the release of any specific record. But the enclosed opinion should offer sufficient guidance with respect to the confidentiality provisions of section 11-10-314.

It may also be helpful to refer to previous Attorney General opinions for guidance in classifying the particular records at issue as either "personnel" or "evaluation" records, and applying the applicable legal test for their release under the FOIA.² Those opinions are searchable on the Office of Attorney General website: http://www.arkansasag.gov/opinions/. You may find Attorney General Opinion 2010-038 a particularly helpful source of information in detailing the two exemptions contained in the FOIA for items normally found in employees' files.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL Attorney General

¹ This Code section contains a confidentiality requirement that applies, inter alia, to "information obtained by the Director of the Department of Workforce Services from any employing unit or individual pursuant to the administration of [the employment security law]. . . ." A.C.A. § 11-10-314(a)(1) (Supp. 2009).

² See A.C.A. § 25-19-105(b)(12) and (c)(1) (Supp. 2009).