Mr. Bobby Lester, Superintendent Pulaski County Special School District PO Box 6409 Little Rock, AR 72216
Dear Mr. Lester:
This is in response to your request for an opinion regarding the provisions of the Arkansas Freedom of Information Act ("FOIA"), which is codified at A.C.A. 25-19-101, et seq. Specifically, you wish to know if your decision to withhold information concerning the possible termination of three teachers is consistent with the Act.
Based upon the information provided to my office, I believe your decision to be consistent with the FOIA.
A.C.A. 25-19-105(c)(1) states:
However, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form the basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.
The facts as you have stated them to my office are these: The three affected personnel have been notified by mail and in-person of the recommendation for termination. Copies of the letters have been placed in the personnel files of the teachers. No other copies have been distributed, and the names of the teachers are not included on any other document relating to the termination proceedings. The termination notices are based upon records collected during an investigation of the teachers.
I believe that the termination notices, which relate to the employees' performance of lack of performance, can be properly classified as "performance records" and are therefore exempt from public inspection until such time as the employees are suspended or terminated and all administrative proceedings are complete. This is in accordance with the provisions of the above-stated Code provision.
Additionally, it is my opinion that the records collected or created as part of the investigation leading to the decision to recommend termination are also exempt as they form the basis of the recommendation.
You have asked, specifically, whether the exemption for job performance records extends to the names of the affected personnel. It must be concluded that any information contained on a job performance record is shielded, including the name. However, if there exists a record listing the names of the employees outside of the personnel files, then that record would be subject to disclosure under the FOIA.
Sincerely,
/s/ Steve Clark Attorney General