Opinion No. ( 1988 )

Ms. Margaret Bunn, Vice President Board of Directors, Searcy Public Schools 801 North Elm Searcy, AR 72143

Dear Ms. Bunn:

You have requested a clarification of Opinion No. 88-078 regarding the applicability of the Arkansas Freedom of Information Act to records surrounding the departure of a former superintendent. In that opinion, I state that the records in question would be subject to release under certain circumstances as outlined in A.C.A. 25-19-101, et seq. Your question has specific reference to that part of the Opinion which pertains to the evaluation records of the superintendent.

Please be aware that A.C.A. 25-19-105(c)(1), as previously cited in Opinion No. 88-078, exempts from public inspection and copying employee evaluation and job performance records unless an employee is suspended or terminated and the records form the basis for the suspension or termination. It must then be determined whether there is a compelling public interest in disclosure. Legislative intent for evaluation records to remain confidential, except under the stated circumstances, is reflected in the legislative history of 25-19-105, including the emergency clause contained in Section 5 of Act 49 of 1987 which states in pertinent part:

It is hereby found and determined by the General Assembly that considerable confusion has existed regarding public access to personnel records and employee evaluation records under Act 93 of 1967, as amended; that Act 17 of 1986, Second Extraordinary Session, which exempts employee evaluation records from disclosure, by its own terms ceases to be effective on April 1, 1987; that, as a general matter, the confidentiality of personnel records and employee evaluation records is in the public interest to ensure the privacy of employees and the efficacy of the employee evaluation process; that such records should, however, be open for public inspection in certain circumstances. . .

You state in your letter that the former employee in question was neither suspended nor terminated, but rather he resigned. Resignation does not meet the criteria for release of an evaluation record as set forth in the Act, therefore the records are not discoverable. Also be aware that non-evaluation records pertaining to the contract settlement would be subject to inspection and copying under the provisions of the Act as stated in the previous Opinion.

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.