Opinion No. ( 1996 )

Mr. Tommy Fowler 2804 Cherry Street Pine Bluff, Arkansas 71603

Dear Mr. Fowler:

This is in response to your request, pursuant to A.C.A. §25-19-105(c)(3)(B), for an opinion on whether the decision of the Arkansas Department of Human Services (the "Department") to open certain documents to public inspection and copying is consistent with the Arkansas Freedom of Information Act, A.C.A. §§ 25-19-101 to -107 (Repl. 1992 and Supp. 1995) (the "Act"). Your request and correspondence included therewith indicate that a citizen has requested copies of "performance evaluation appraisal forms" relating to you and three other Department employees, and that the Department has determined to make those records available.

Your request states that "[t]he request in question is not related to suspension or termination action." I take this statement as an assertion that nothing in the records at issue formed a basis for a decision to suspend or terminate your employment with the Department and, for purposes of this opinion, I assume that assertion is true.

I also assume for purposes of this opinion that the title of the records at issue accurately describes their contents (i.e., that the "performance evaluation appraisal forms" are "employee evaluation or job performance records" within the meaning of that phrase as used in A.C.A. §25-19-105(c)(1)). "Employee evaluation or job performance" records are those that "detail the performance or lack of performance of an employee within the scope of his employment regarding a specific incident or incidents." See, e.g., Ops. Att'y Gen. 95-171, 94-391. Here, the form's title certainly indicates that it is an employee evaluation or job performance record, and nothing in or included with your request suggests otherwise.

Based upon the foregoing assumptions, it is my opinion that the Department's determination to release "performance evaluation appraisal forms" relating to you is not consistent with the Act. Employee evaluation or job performance records that do not form a basis for a decision to suspend or terminate the employee to which they relate may not be released for public inspection. A.C.A. § 25-19-105(c)(1).

You also request my opinion on certain other questions, none of which I am authorized or required to answer under the Act or other applicable law. See A.C.A. §§ 25-16-701, -706 (Repl. 1992). In any event, these questions appear to be moot in view of the opinion expressed herein.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General J. Madison Barker.

Sincerely,

WINSTON BRYANT Attorney General

WB:JMB/cyh