Racop V Colbert - AFOIA Complaint - W - Exhibits

IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS
________ DIVISION
RUSSELL R. RACOP PLAINTIFF
VS. CASE NO. __________________
JOHN L. COLBERT, in his official capacity DEFENDANT

as custodian of certain records
AFOIA COMPLAINT AND REQUEST FOR HEARING
1. This is an appeal from a denial of rights under the Arkansas Freedom of Information Act
(“AFOIA”) pursuant to Arkansas Code Annotated § 25-19-107(a).
Parties, Jurisdiction, and Venue
2. Plaintiff Russell R. Racop is an adult citizen of the State of Arkansas, and he brings this
appeal as a matter of right under Ark. Code Ann. § 25-19-107, as he requested specific public
records, which Defendant refused to provide, entitling Plaintiff to a hearing in this Court. See
Ark. Code Ann.§ 25-19-107(b); see also Orsini v. State, 340 Ark. 665, 13 S.W.3d 167 (2000).
3. Defendant John L. Colbert is the superintendent of the Fayetteville Public Schools
(“FPS”), and he is sued in his official capacity.
4. Jurisdiction and venue are proper in this Court pursuant to Ark. Code Ann. § 25-19-
107(a), which provides:
“Any citizen denied the rights granted to him or her by this chapter may appeal
immediately from the denial to the Pulaski County Circuit Court or to the circuit court of
the residence of the aggrieved party, if the State of Arkansas or a department, agency, or
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institution of the state is involved, or to any of the circuit courts of the appropriate
judicial districts when an agency of a county, municipality, township, or school district,
or a private organization supported by or expending public funds, is involved..”
Factual Background
5. On June 19, 2018, Plaintiff sent a request for public records, pursuant to the AFOIA,
to the FPS. See Exhibit A.
6. Specifically, Plaintiff’ s request sought the records pertaining to the termination of
Superintendent Matthew Wendt, including voice recordings of Wendt and copies of text
messages between Wendt and a female employee of the district that attorney Suzanne Clark
presented to Chris Lawson, district general counsel, on March 15, 2018 that supported her
client's complaint against Wendt.
7. On June 19, 2018, Plaintiff received a response from Missy McJunkins Duke, outside
counsel for FPS. See Exhibit B.
8. Duke’s letter indicated that FPS had determined that the material sought in Plaintiff’s
AFOIA request was releasable but that notifications must be made to Wendt and other affected
employees and permitting them to seek and Attorney General’s opinion. Duke also added that
due to the “process” she and FPS could not give a date when the records would be available for
release. It must be pointed out that Ark. Code Ann. §25-19-105 (e) states that if material sought
is not available at the time a citizen asks to examine it, the custodian shall certify this fact in
writing to the applicant and set a date and hour within three (3) working days at which time the
record will be available.
9. On June 28, 2018, Plaintiff sent FPS outside counsel Duke an email in which he
advised her that under the AFOIA she must provide a time and date the requested material will
be made available if the material was not provided within three days. See Exhibit C. It must be
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pointed out that the time frame to provide notice to affected employees had passed as had those
affected employees time to seek and obtain an opinion from the Attorney General.
10. Also, on June 28, 2018, Duke responded to Plaintiff’s email of the same date. In it she
stated they were in the process of reviewing and redacting documents and would be notifying
employees the next day and would advise if any told her that they would be seeking an AG
opinion. See Exhibit D. It must be pointed out that FPS was required under the AFOIA to make a
determination within twenty-four hours of the receipt of the Plaintiff’s AFOIA request and to
notify the subject(s) of the records so they may immediately seek an opinion from the Attorney
General. Plaintiff pointed that out in another email to Duke. See Exhibit E.
11. On July 3, 2018 Duke sent Plaintiff an email in which she stated she had been advised an
employee was contacting the Attorney General for an opinion as to whether the record should be
released. See Exhibit F.
12. On July 9, 2018, the Arkansas Attorney General issued two opinions, one for a current
employee and another for a former employee of FPS in regard to the decision of FPS to release
records sought by the Plaintiff in his June 19th AFOIA request. See Exhibits G and H. The Attorney
General stated in each opinion that FPS was correct in their decision to release the records sought
subject to certain redactions in accordance with the AFOIA.
13. FPS and their outside counsel failed to immediately release the material Plaintiff sought
in his June 19th AFOIA request as required under the AFOIA after the Attorney General opined
their decision to release the material, subject to certain redactions, was consistent with the AFOIA.
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Claim: Failure to Properly Disclose Records under the AFOIA.
14. For nearly fifty-one years, Arkansas courts have liberally construed the AFOIA to
accomplish its broad and laudable purpose that public business be performed in an open and
public manner, and they have broadly construed the AFOIA in favor of disclosure. See Fox v.
Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004); see also Laman v. McCord, 245 Ark. 401, 432
S.W.2d 753 (1968) (wherein the Arkansas Supreme Court had "no hesitation in asserting our
conviction that the Freedom of Information Act was passed wholly in the public interest and is to
be liberally interpreted to the end that its praiseworthy purposes may be achieved").
15. Even the express AFOIA exemptions found in Ark. Code Ann. § 25-19-105 are to be
narrowly construed. See Hengel v. City of Pine Bluff, 307 Ark. 457,821 S.W.2d 761 (1991); see
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (holding that AFOIA exemptions are to be
narrowly construed “in a manner that favors disclosure”); also Troutt Brothers, Inc. v. Emison,
311 Ark. 27, 841 S.W.2d 604 (1992); Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986);
Laman v. McCord, 245 Ark. 401, 432 S.W.2d 753 (1968). When the scope of an exemption is
unclear or ambiguous, the court will interpret it in a manner that favors disclosure. See Young v.
Rice, 308 Ark. 593, 826 S.W.2d 252.
16. Plaintiff restates and realleges the facts and allegations contained in the preceding
paragraphs as if fully set out herein.
17. The documents sought by Plaintiff are “public records” within the meaning of the
AFOIA.
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18. Pursuant to the AFOIA, those records are subject to release, upon request, absent a
specific exemption. See) e.g., Fayetteville v. Rose, 294 Ark. 468, 743 S.W.2d 817 (1988).
19. A “custodian” of certain records, as that term is used in the AFOIA, is a “person having
administrative control of that record.” Ark. Code Ann. § 25-19-103(1)(A); see also Fox v.
Perroni, 358 Ark. 251, 260, 188 S.W.3d 881, 887 (2004) (holding that a circuit judge had
administrative control over a personal check written by his law clerk for official business, and
the judge was therefore a “custodian” of that record, even where it was held by the Bank and the
law clerk).
20. Defendant John L. Colbert is the custodian of FPS records, maintained in personnel and
other files, over which he has administrative control.
21. The Defendant and his outside counsel willfully violated Plaintiff’s rights under the
AFOIA by refusing to release documents and recordings he sought under the AFOIA in a timely
manner and upon demand.
Prayer for Relief
WHEREFORE, based on the foregoing, Plaintiff prays that this Court will:
22. Find that Defendant and his outside counsel failed to comply with the AFOIA with
respect to Plaintiff’s request for the records pertaining to the termination of Superintendent
Matthew Wendt, including voice recordings of Wendt and copies of text messages between
Wendt and a female employee of the district whose complaint led to his termination of
employment.
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23. Fix and assess a day the petition is to be heard within seven (7) days of the date of this
application, and hear and determine the case as required by Arkansas Code Annotated section
25-19-107(b).
24. Order Defendant to immediately fulfill Plaintiffs request as required by state law.
25. Find that the Defendant, John L. Colbert and his outside counsel Missy McJunkins
Duke, are subject to Ark. Code Ann. § 25-19-104 and should be found guilty of a Class C
misdemeanor.
26. Order any other relief that this Court deems proper.
Respectfully submitted,
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CERTIFICATE OF SERVICE
I, Russell R. Racop, hereby certify that a true and correct copy of this complaint and a summons
will be served by the Washington County Sheriff’s Department or by other sanctioned method
upon the Defendant as of the date of issuance of the summons by the Clerk of this Court:
John L. Colbert, Superintendent

Fayetteville Public Schools
1000 West Bulldog Blvd.
Fayetteville, Arkansas, 72701
Office:479-444-3000
Email: johnlcolbert@fayar.net
Russell R. Racop
301 Alamo Drive
Little Rock, AR 72211
501-352-0043
russracop@att.net
7
russracop@att.net
From: russracop@att.net
Sent: Tuesday, June 19, 2018 6:33 AM
To: 'Chris Lawson'
Subject: Freedom of Information Request / 2018-89
Under the Arkansas Freedom of Information Act § 25-19-101 et seq., I am requesting an opportunity to inspect or obtain
copies of public records regarding:
1. Termination of Superintendent Matthew Wendt, including voice recordings of Wendt and copies of text
messages between Wendt and a female employee of the district that attorney Suzanne Clark presented to Chris
Lawson, district general counsel, on March 15, 2018 that support her client's complaint against Wendt.
Note: I am not seeking results of the complaints at this time.
Under 105(e), an agency has three business days to respond where (1) a public record is in active use or storage AND (2)
the record is therefore not available at the time a citizen asks to examine it. Thus, even if a record is in active use or
storage, it must still be provided more or less immediately upon request if it is not unavailable to the custodian. If
access to the records I am requesting will take longer, please contact me with information about when I might expect
copies or the ability to inspect the requested records.
I am requesting that the information requested be supplied ed me in electronic form and sent via email to
russracop@att.net.
Please note that § A.C.A. 25-19-105 (e) (4) states that If it is necessary to separate exempt from nonexempt information
in order to permit a citizen to inspect, copy, or obtain copies of public records, the custodian shall bear the cost of the
separation.
Also reference Arkansas Attorney General’s Opinion No. 2010-140 regarding a state agency must bear the cost associated
with redactions no matter the size or amount of documents involved. And this matter is also addressed in Watkins, J., et
al., "The Arkansas Freedom of Information Act" (6th ed.), at p. 303, "Moreover, the custodian must bear any cost arising
from segregation of exempt and nonexempt information.”
If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the
information and notify me of the appeal procedures available to me under the law.
Russ Racop
301 Alamo Drive
Little Rock, AR 72211
501-352-0043
Publisher:
badgovernmentinarkansas.blogspot.com
A
1
Racop vv Colbert,
Racop Coulter - Exhibit
Exhibit A1- Page
Page 11ofof11
russracop@att.net
From: Lacy S. Bailey <LBailey@CGWG.COM>

Sent: Tuesday, June 19, 2018 4:23 PM
To: 'russracop@att.net'
Cc: Missy Duke
Subject: June 19, 2018 Freedom of Information Act (FOIA) Request
Attachments: 236367_1.pdf
SENT ON BEHALF OF MISSY DUKE:

Please see attached correspondence regarding your Freedom of Information Act request dated June 19, 2018.
Thank you,
LACY S. BAILEY | LEGAL ASSISTANT
lbailey@cgwg.com | www.cgwg.com
(501) 371-9999 | Fax: (501) 371-0035
500 President Clinton Avenue, Suite 200
Little Rock, Arkansas 72201
CONFIDENTIALITY STATEMENT
This electronic message transmission, and any prior or subsequent transmissions in the same "e-mail chain", contains
information from the law firm of Cross, Gunter, Witherspoon & Galchus, P.C. and is confidential or privileged. The information
is intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that any
disclosure, copying, distribution or use of the contents of this information is prohibited. If you have received this electronic
transmission in error, please notify us by telephone (501-371-9999) immediately.
1
Racop v Coulter - Exhibit B - Page 1 of 3
CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C.
ATTORNEYS AT LAW
LITTLE ROCK | SPRINGDALE
J. Bruce Cross Russell Gunter (1950-2013)

Carolyn B. Witherspoon Donna Smith Galchus (1946-2016)
M. Stephen Bingham
Richard A. Roderick 500 President Clinton Avenue, Suite 200
Misty Wilson Borkowski Little Rock, AR 72201
Missy McJunkins Duke Telephone (501) 371-9999
Cynthia W. Kolb Fax (501) 371-0035
Amber Wilson Bagley
Laura D. Johnson Mailing Address
J. E. Jess Sweere P.O. Box 3178
Gregory J. Northen Little Rock, AR 72203
Abtin Mehdizadegan
Mary E. Buckley (1) www.cgwg.com
Alex D. Clark
Joseph M. Kraska (1) Member of Arkansas and Texas Bars
(2) Member of Arkansas and Oklahoma Bars
Of Counsel All others Arkansas Bar

Robin Shively Brown
Jennifer S. P. Chang (2)
June 19, 2018
VIA EMAIL (russracop@att.net)

Russ Racop
301 Alamo Drive
Re: June 19, 2018 Freedom of Information Act (FOIA) Request
Dear Mr. Racop:
I represent Fayetteville Public Schools (FPS) and am in receipt of your Freedom

of Information Act request dated June 19, 2018, requesting public records regarding the
“[t]ermination of Superintendent Matthew Wendt, including voice recordings of Wendt
and copies of text messages between Wendt and a female employee of the district that
attorney Suzanne Clark presented to Chris Lawson, district general counsel, on March
15, 2018 that support her client's complaint against Wendt.”
It is the duty of FPS as custodian of the records to determine if any of the

documents are covered by any of the exceptions to the Freedom of Information Act and
thus shielded from disclosure. Under certain conditions, the FOIA exempts two groups
of items normally found in employees’ personnel files. For purposes of the FOIA, these
items can usually be divided into two mutually exclusive groups: (1) personnel records
that constitute a clearly unwarranted invasion of personal privacy or (2) employee
evaluations and job performance records.
It is FPS’s determination as custodian that this requested information is a “job

performance record” with respect to Dr. Wendt and subject to disclosure. This
information, however, also includes records that may be the personnel records of other
employees who were not the subject of an investigation. FPS is in the process of

June 19, 2018
Page 2
identifying these records. Then, FPS must notify Dr. Wendt and other affected
employees that their records have been requested and that they have the right to seek
an Attorney General’s opinion to confirm FPS’s interpretation as to whether this
information is releasable. The Attorney General has three (3) days to respond upon
receipt of an employee’s request.
Following the process of records review, employee notification, and Attorney

General response, if applicable, it may be necessary to redact certain records in
compliance with the FOIA. Due to this process, we are not able to provide you with an
anticipated date as to when the records will be available for release to you.
Please contact me if you have any questions or would like an update as to the
time frame.
Sincerely,
Missy McJunkins Duke
MMD/lsb

russracop@att.net
Sent: Thursday, June 28, 2018 9:39 AM
To: 'Lacy S. Bailey'
Subject: RE: June 19, 2018 Freedom of Information Act (FOIA) Request
Under the AFOIA you must provide a time and date the requested material will be made available if the material is not
provided within 3 days of the request.

To: 'russracop@att.net' <russracop@att.net>
Cc: Missy Duke <mduke@cgwg.com>

Thank you,
(501) 371-9999 | Fax: (501) 371-0035
C
1
Racop v Coulter - Exhibit C - Page 1 of 1
russracop@att.net
From: Missy Duke <mduke@cgwg.com>

Sent: Thursday, June 28, 2018 3:03 PM
Cc: Lacy S. Bailey
Mr. Racop,
We are in the process of reviewing and redacting documents and will be notifying employees by tomorrow as well
as providing them with the necessary documents for their consideration. I will let you know if I am notified that
any employees are seeking AG opinions. At that point in time, I should have a better idea of when the documents
can be released to you (provided the AG agrees with the FPS’s assessment).
Missy Duke
MISSY MCJUNKINS DUKE | ATTORNEY
mduke@cgwg.com | www.cgwg.com
(501) 371-9999 | Fax: (501) 371-0035
From: Lacy S. Bailey

To: Missy Duke
Subject: FW: June 19, 2018 Freedom of Information Act (FOIA) Request
Importance: High
D
Missy,
Please see below.
1
Racop v Coulter - Exhibit D - Page 1 of 3
From: russracop@att.net [mailto:russracop@att.net]
To: Lacy S. Bailey


Thank you,
(501) 371-9999 | Fax: (501) 371-0035
2
Racop v Coulter - Exhibit D - Page 2 of 3
russracop@att.net
To: 'Missy Duke'
Cc: 'Lacy S. Bailey'; 'Matthew Campbell'; Ean Lee Bordeaux; 'Phyllis Harrington'
Notifications should have been made immediately after the request was received, not a week later after you are
reviewing the documents. Have you never dealt with a AFOIA request prior to this?

Cc: Lacy S. Bailey <LBailey@CGWG.COM>
Mr. Racop,
Missy Duke
(501) 371-9999 | Fax: (501) 371-0035
Little Rock, Arkansas 72201 E
1
Racop v Colbert - Exhibit D - Page 1 of 2
To: Missy Duke
Importance: High
Missy,
Please see below.

To: Lacy S. Bailey


Thank you,
(501) 371-9999 | Fax: (501) 371-0035
2
Racop v Colbert - Exhibit D - Page 2 of 2
russracop@att.net

Sent: Tuesday, July 03, 2018 9:41 AM
Mr. Racop,
I have been advised by an employee that the employee is contacting the Attorney General’s office today to seek an
opinion as to whether the records should be released.
Missy Duke
(501) 371-9999 | Fax: (501) 371-0035
From: Missy Duke

Cc: Lacy S. Bailey
Subject: RE: June 19, 2018 Freedom of Information Act (FOIA) Request F
Mr. Racop,
1
Racop v Colbert - Exhibit F - Page1 of 3
Missy Duke
(501) 371-9999 | Fax: (501) 371-0035

To: Missy Duke
Importance: High
Missy,
Please see below.

To: Lacy S. Bailey

2

Thank you,
(501) 371-9999 | Fax: (501) 371-0035
3
STAT E OF ARKAN SAS
ATTORN EY G EN ERAL
LES LI E RUT LEDG E
Opinion No. 2018-083
July 9, 2018
Suzanne G. Clark, Esq.

Clark Law Firm, PLLC G
244 West Dickson Street, Suite 201
Fayetteville, AR 72702-6380
Dear Ms. Clark:
You have requested my opinion regarding the Arkansas Freedom of Information

Act ("FOIA"). Your request, which is made as the attorney for the subject of the
records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). This
subsection authorizes the custodian, requester, or the subject of personnel or
employee-evaluation 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.
Your correspondence indicates that the Fayetteville Public School District

("FPSD" or "the District") received a request under the FOIA for records
stemming from the termination of the District's superintendent. The FPSD
records custodian has determined that some of the requested records constitute the
personnel records of your client who you claim is a victim of sexual harassment.
Your request goes on to state that the disclosure of the records at issue would
subject your client to "extreme embarrassment and humiliation." As such, you
assert that the requested records pertaining to your client should be exempt from
disclosure as a "clearly unwarranted invasion of personal privacy," pursuant to
Ark. Code Ann.§ 25-19-105(b)(12). You ask whether the custodian's decision to
release your client's personnel records in this regard is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. The only record that has been presented for my review is your client's
323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. A RKAN SAS 72201

TELE PH ONE (501) 682-2007 · FAX (501) 682-8084
A RKA N SASAG.GOV Racop v Coulter - Exhibit G - Page 1 of 7
Page 2
complaint statement against the former superintendent, 1 with your client's name
redacted. 2 In my opinion, the custodian properly classified this document as your
client's personnel record that is subject to disclosure. However, as I will discuss
below, it is my opinion that the disclosure of your client's name would "constitute
a clearly unwarranted invasion of personal privacy" and should be redacted from
the record.
Additionally, I take it from your client's request for my opinion that the District
has other records that it has classified as your client's personnel records and
intends to release. Because you have not provided me with any other records
involving your client that FPSD has deemed responsive to the FOIA requests, I
cannot definitively opine as to whether any of those documents is exempt from
disclosure or whether any discrete information from such records should be
redacted. Accordingly, with respect to those documents, I can only set out the
legal standards the custodian must apply to determine whether certain employee-
related records should be disclosed. As I will explain, it is the custodian's
responsibility in the first instance to properly classify all responsive records and
apply the applicable test for disclosure.
DISCUSSION
I. General standards governing disclosure.
A document must be disclosed in response to a FOIA request if all three of the

following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public
record. Third, no exceptions allow the document to be withheld.
The first two elements appear to be met in this instance. The request was made to
FPSD, which is a public entity subject to the FOIA. Moreover, the request
appears to pertain to public records. The FOIA defines "public records" as
"writings, recorded sounds, films, tapes, electronic or computer-based
1
You also provided a document that you described in your client's opinion request as a "press
release" that appears to have been prepared by you and that is labeled as being "For Immediate
Release." In light of this description, I take it that this document has already been made public.
Accordingly, I will not address this document in this opinion as it falls outside the scope of my
statutory review.
2
It is my understanding that it was the custodian's decision to release your client's name with the
disclosure of this record, and that a third party made that redaction on the copy you provided with
your request for my opinion.
Racop v Coulter - Exhibit G - Page 2 of 7

Page 3
information, or data compilations in any medium, required by law to be kept or

[are] otherwise kept, and which constitute a record of the performance or lack of
performance of official functions ... carried out by a public official or employee
3
Because the records are held by a public entity, they are presumed to be public
records, although that presumption is rebuttable. 4 The custodian appears to have
determined that they are public records. The one record that was provided to me
clearly meets the statutory definition of a "public record." As to the other records
in question, I cannot definitively opine as to the custodian's determination. But if
we presume, as we must, that the records are public records as defined in the
FOIA, the analysis then proceeds to the third element-that is, whether any
exceptions preclude their disclosure.
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files. 5 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records" 6 or "employee
evaluation or job performance records." 7 The test for whether these two types of
documents may be released differs significantly.
3
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
4
See Op. Att'y Gen. 2010-044.
5
This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-without-pay; ce1iificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-
Steele & Robe1i Steinbuch, TI-IE ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas
Law Press, 6th ed., 2017).
6
Ark. Code Ann. § 25-19-105(b)( 12): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion
of personal privacy."
7
Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(12) of this section, 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

Page 4
When custodians assess whether either of these exceptions applies to a particular

record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.
According to the notice the District's counsel provided to your client, the
custodian has determined that the records at issue are your client's personnel
records. Thus the relevant exemption in this instance is the one for personnel
records. I will therefore limit my discussion to the test for disclosure relating to
those types of records. 8
The FOIA does not define the term "personnel records." But this office has
consistently opined that "personnel records" are all records other than employee
evaluation and job performance records that pertain to individual employees. 9
Whether a particular record meets this definition is, of course, a question of fact
that can only be definitively determined by reviewing the record itself. If a
document meets this definition, then it is open to public inspection and copying
except "to the extent that disclosure would constitute a clearly unwarranted
invasion of personal privacy." 10
While the FOIA also does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice, 11 has provided
some guidance. To determine whether the release of a personnel record would
constitute a "clearly unwarranted invasion of personal privacy," the Court applies
a balancing test that weighs the public's interest in accessing the records against
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."
8
Regarding "employee evaluation or job performance records," the Arkansas Supreme Court has
adopted this office's view that those terms refer to any records that (1) were created by or at the
behest of the employer, (2) are used to evaluate the employee, and (3) detail the employee's
performance or lack of performance on the job. See Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d
387. Because in this instance the custodian has classified the records in question as your client's
personnel records-a determination I cannot opine upon, not having seen the records-I need not
unde11ake any further discussion of the employee-evaluation exemption.
9
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
10
Ark. Code Ann.§ 25-19-105(b)(l2).
11
308 Ark. 593, 826 S.W.2d 252 (1992).

Page 5
the individual's interest in keeping them private. The balancing takes place with
the scale tipped in favor of disclosure. 12
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimis
13
privacy interest. If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. 14
Moreover, exemptions to the FOIA must be narrowly construed. Therefore, the

person resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests. 15 The mere
fact that the subject of a records request may consider their release an unwarranted
invasion of personal privacy is irrelevant to the analysis because the test is
objective. 16 Whether any particular personnel record's release constitutes a clearly
unwarranted invasion of personal privacy is always a question of fact. 17
Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Information
that must be redacted include:
• Personal contact information of public employees, including personal

telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann.§ 25-19-105(b)(l3));
• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
12
Watkins, et al., at 208.
13
Young, 308 Ark. at 598, 826 S.W.2d at 255.
14
Id., 826 S.W.2d at 255.
15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
16
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
17
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Page 6
• Marital status of employees and information about dependents (Op. Att'y

Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently
working undercover (Ark. Code Ann.§ 25-19-105(b)(10));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
III. Application.
As mentioned above, in the course of preparing this opinion, I have reviewed only
one of what I have been led to believe are a number of records involving your
client. 18 That one record you provided me is your client's complaint statement
against the former FPSD superintendent, with your client's name having been
redacted. However, it is my understanding that the records custodian did not make
that redaction, but rather that redaction was made by a third party.
Nevertheless, it is my opinion that the custodian has 1) properly classified the

record as your client's personnel record, and 2) properly determined that it must be
disclosed. 19 As a personnel record, your client's identity ordinarily would be
disclosed unless to do so would constitute a "clearly unwarranted invasion" of
.
persona1privacy.
20
The first step in assessing whether that is the case here is for the custodian to
identify and weigh any privacy interests at stake, bearing in mind all of the
18
See supra note 1.
19
See Ops. Att'y Gen. 2016-095, 2014-122 (and opinions cited therein) (stating that complaints
lodged by public employees generally are the personnel records of the complainants).
20
See note 10 and accompanying text.

Page 7
relevant facts. Given the highly sensitive nature of your client's assertion as being
a victim of sexual harassment by a superior, I believe that a court would find a
very high privacy interest. 21 However, I believe that a court would also find that
the public has a strong interest in knowing the details of the improper conduct that
gave rise to the complaint and the superintendent's subsequent termination. 22 In
my opinion, these competing interests can be satisfied by disclosing the complaint
statement while redacting your client's identity and any other potentially
identifying information.
With respect to the records at issue that were not provided to me with your request
for my opinion and that I have not reviewed, I cannot definitively opine in this
opinion on whether the custodian's decisions with respect to those records are
consistent with the FOIA. But I can state that, as with your client's complaint
statement, the custodian must consider in the first instance whether disclosure of
the records or of discrete information contained within the records would
constitute a clearly unwarranted invasion of your client's personal privacy.
Sincerely,
.?~=~~_c~- ~. //~"fo
LESLIE RUTLEDGE
Attorney General
21
22 Id.

STAT E O F ARKAN SAS
ATTORN EY G EN ERAL
LES LI E RUT LEDGE
July9,2018
Elizabeth R. Murray, Esq.

Friday Eldredge & Clark, LLP
400 West Capitol Ave., Suite 2000 H
Little Rock, AR 72201-3522
Dear Ms. Murray:
You have requested my opinion regarding the Arkansas Freedom of Information

Act ("FOIA"). Your request, submitted as the attorney for the subject of the
records, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp. 2017). This
subsection authorizes the custodian, requester, or the subject of personnel or
employee-evaluation 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.
Your correspondence indicates that the Fayetteville Public School District

("FPSD" or "the District") has received two FOIA requests for all records-
including voice and video recordings, text messages, and witness interviews-
related to a sexual-harassment investigation of your client that culminated in the
FPSD Board's decision to terminate his employment contract. The District's
records custodian classified the requested records as either your client's "job
performance [sic] and/ or personnel records" and determined therefore that they are
disclosable under the FOIA as redacted. You have raised several objections to the
custodian's decision to disclose of all or at least some of the documents. You ask
whether the custodian's decision is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the voluminous records that you have provided, it is my
opinion that most of the records have been properly classified as either your
323 CENTrn STREET. SU ITE200 · LITTLE RO C K. ARKANSAS 7220 1

TELEP HONE (50 1) 682-2007 · FAX (50 1) 682-8084
ARKAN SASAG.GOV Racop v Coulter - Exhibit H - Page 1 of 8
Page 2
client's personnel records or employee-evaluation or job-performance records, and

that they are subject to disclosure under the applicable tests for those types of
records. However, there are some records possessed by the District that should
not be disclosed, in my opinion. Moreover, numerous redactions must be made to
the records to withhold the complainant's identity, children's names, personal
address, and so forth. 1 I will set out all the definitions and standards and then
apply them to the records you attached.
DISCUSSION
I. General standards governing disclosure.
A document must be disclosed in response to a FOIA request if all three of the

following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public
record. Third, no exceptions allow the document to be withheld.
The first two elements seem to be met. First, the requests were made to the FPSD,
which is a public entity that is subject to the FOIA. Second, the requests appear to
pertain to public records, although you dispute this with respect to a number of the
records. The FOIA defines public records as "writings, recorded sounds, films,
tapes, electronic or computer-based information, or data compilations in any
medium, required by law to be kept or [are] otherwise kept, and which constitute a
record of the performance or lack of performance of official functions ... carried
out by a public official or employee .... " 2 There is a rebuttable presumption that
documents kept by an entity subject to the FOIA are public records. 3
As I understand it, the attached documents were created or collected in connection

with an investigation of a sexual-harassment complaint made against your client
by a subordinate District employee. Accordingly, in my opinion, most of the
attached documents reflect the performance or lack of performance of official
functions. Therefore, in my opinion, these documents are public records and must
be disclosed unless some specific exception provides otherwise.
1
2
Ark. Code Ann. § 25-19-103(7)A) (Supp. 2017).
3
Racop v Coulter - Exhibit H - Page 2 of 8

Page 3
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files. 4 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records" 5 or "employee
evaluation or job performance records." 6 The test for whether these two types of
documents may be released differs significantly.
When custodians assess whether either of these exceptions applies to a particular

record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.
a. Personnel-records exception.
The first of the two most relevant potential exceptions is the one for "personnel
records," which the FOIA does not define. But this office has consistently opined
that "personnel records" are all records other than emplo?'ee evaluation and job
performance records that pertain to individual employees. Whether a particular
record meets this definition is, of course, a question of fact that can only be
definitively determined by reviewing the record itself. If a document meets this
4
This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-without-pay; certificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-
Steele & Robe11 Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
5
Ark. Code Ann. § 25-19-105(b )(12): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion
of personal privacy."
6
Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(12) of this section, 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 a basis for the decision to suspend or terminate
the employee and if there is a compelling public interest in their disclosure."
7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Page 4
definition, then it is open to public inspection and copying except "to the extent
that disclosure would constitute a clearly unwarranted invasion of personal
privacy." 8
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 has provided
some guidance. To determine whether the release of a personnel record would
constitute a "clearly unwarranted invasion of personal privacy," the Court applies
a balancing test that weighs the public's interest in accessing the records against
the individual's interest in keeping them private. The balancing takes place with
the scale tipped in favor of disclosure. 10
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimis
privacy interest. 11 If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. 12
Because the exceptions must be narrowly construed, the person resisting

disclosure bears the burden of showing that, under the circumstances, his privacy
interests outweigh the public's interests. 13 The fact that the subject of any such
records may consider release of the records an unwarranted invasion of personal
privacy is irrelevant to the analysis because the test is objective. 14 Whether any
8
Ark. Code Ann.§ 25-19-105(b)(12).
9
308 Ark. 593, 826 S.W.2d 252 (1992).
10
Watkins, et al., at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id., 826 S.W.2d at 255.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

Page 5
particular personnel record's release would constitute a clearly unwarranted

invasion of personal privacy is always a question of fact. 15
Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:
• Personal contact information of public employees, including personal

telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann. § 25-19-105(b )(13));
• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• Marital status of employees and information about dependents (Op. Att'y
Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently
working undercover (Ark. Code Ann.§ 25-19-105(b)(l0));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job

performance records," which the FOIA likewise does not define. But the
Arkansas Supreme Court has adopted this office's view that the term refers to any
records (1) created by or at the behest of the employer (2) to evaluate the
employee (3) that detail the employee's performance or lack of performance on
15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Page 6
the job. 16 This exception includes records generated while investigating

allegations of employee misconduct that detail incidents that gave rise to an
allegation of misconduct. 17
If a document meets the above definition, the document cannot be released unless
all the following elements have been met:
1. The employee was suspended or terminated (i.e., level of discipline);

2. There has been a final administrative resolution of the suspension or
termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that
proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records
in question (i.e., compelling interest). 18
As for the final prong, the FOIA never defines the key phrase "compelling public
interest." But the leading commentators on the FOIA, referring to this office's
opinions, have offered the following guidelines:
[I]t seems that the following factors should be considered in

determining whether a compelling public interest is present: ( 1) the
nature of the infraction that led to suspension or termination, with
particular concern as to whether violations of the public trust or
gross incompetence are involved; (2) the existence of a public
controversy related to the agency and its employees; and (3) the
employee's position within the agency. In short, a general interest in
the performance of public employees should not be considered
compelling, because that concern, at least theoretically, always
exists. However, a link between a given public controversy, an
agency associated with the controversy in a specific way, and an
employee within the agency who commits a serious breach of public
trust should be sufficient to satisfy the "compelling public interest"
requirement. 19
16
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
17
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
18
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
19
Watkins, et al., at 238-39 (footnotes omitted).

Page 7
These commentators also note that "the status of the employee" or "his rank
within the bureaucratic hierarchy" may be relevant in determining whether a
"compelling public interest" exists, 20 which is always a question of fact that must
be determined, in the first instance, by the custodian after he considers all the
relevant information.
The primary purpose of this exception is to preserve the confidentiality of the

formal job-evaluation process in order to promote honest exchanges in the
employee/employer relationship. 21
III. Application.
The custodian has classified the nearly 200 pages of documents you provided with
your request for my opinion as either your client's employee-evaluation records or
his personnel records, and concluded that they are subject to disclosure in this
case. In my opinion, the custodian's decision is mostly consistent with the FOIA,
albeit with some caveats.
With respect to the records the custodian classified as employee-evaluation

records, it appears that all four elements of the test listed above are met for their
disclosure. Thus, while the custodian's decision to release those records is
generally consistent with the FOIA, a number of those documents can also be
classified as another employee's personnel records, mostly those of the
complainant.
As I opined in Op. Att'y Gen. 2018-083, because of the highly sensitive nature of
the events that led to the investigation and your client's subsequent termination, it
is my opinion that a court would likely find that the disclosure of the
complainant's identity would constitute a clearly unwarranted invasion of the
complainant's personal privacy. Under the Young v. Rice balancing test described
above, the public has a significant interest in knowing whether a high-ranking
public-school official was allegedly engaged in conduct that would hamper his
professionalism and that of his office. However, the public's interest in knowing
the identity of the complaining employee is minimal, in my opinion. Under the
circumstances described in the documents, it is my opinion that the Young v. Rice
20
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when
a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
issue.").
21
Cf Op. Att'y Gen. 96-168; Watkins, Peltz-Steele & Steinbuch at 223.

Page 8
balancing test likely requires that the custodian redact all information that could be
used to identify the complainant. 22
Of the remaining documents, it is my opinion that the custodian's decision to

classify them as your client's personnel records is mostly correct. I agree with you
that the document titled "MWl 1" should not be disclosed, as it is not even a public
record. Furthermore, the record labeled "MWl O" contains personal medical
information that must be redacted.
You have asserted that the many pages of personal cellphone usage records, as
well as the text messages between your client and the complainant, are personal in
nature and do not meet the definition of a public record in that they do not "reflect
the performance or lack of performance of official functions." 23 In this case, I
must disagree. In my opinion, calls and text messages that took place between the
parties during work hours-which might ordinarily be considered merely the non-
performance of one's job-were of such quantity and nature in this instance that a
court likely could conclude that they reflect the "lack of performance of official
functions. " 24
In conclusion, it is my opinion that most of the custodian's decisions with respect

to the records I have been provided are consistent with the FOIA, except as noted
herein.
Sincerely,
~;;;:=:>- L /.#-....£'"?
LESLIE RUTLEDGE
Attorney General
22
See generally Op. Att'y Gen. 2004-012 ("I will note that the public's strong interest in
disclosure of the documents would appear to hinge on the mayor's alleged conduct, not on the
identity of the employee in question. In my opinion, this distinction might support redacting the
employee's name, as well as any other information that might identify the employee, under the
Young test.").
I also note that the names of the complainant's children are contained in the records unredacted.
It should go without saying that these names must be redacted prior to the records' disclosure.
23
Ark. Code Ann. § 25-19-103(7).
24
Again, as stated above, the complainant's name and any identifying information would have to
be redacted.

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Racop V Colbert - AFOIA Complaint - W - Exhibits

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IN THE CIRCUIT COURT OF WASHINGTON COUNTY, ARKANSAS

RUSSELL R. RACOP PLAINTIFF

VS. CASE NO. __________________

JOHN L. COLBERT, in his official capacity DEFENDANT

AFOIA COMPLAINT AND REQUEST FOR HEARING

(“AFOIA”) pursuant to Arkansas Code Annotated § 25-19-107(a).

Parties, Jurisdiction, and Venue

3. Defendant John L. Colbert is the superintendent of the Fayetteville Public Schools

(“FPS”), and he is sued in his official capacity.

107(a), which provides:

to the FPS. See Exhibit A.

6. Specifically, Plaintiff’ s request sought the records pertaining to the termination of

client's complaint against Wendt.

counsel for FPS. See Exhibit B.

record will be available.

released. See Exhibit F.

subject to certain redactions in accordance with the AFOIA.

Rice, 308 Ark. 593, 826 S.W.2d 252.

paragraphs as if fully set out herein.

other files, over which he has administrative control.

manner and upon demand.

Prayer for Relief

John L. Colbert, Superintendent

Note: I am not seeking results of the complaints at this time.

From: Lacy S. Bailey <LBailey@CGWG.COM>

SENT ON BEHALF OF MISSY DUKE:

LACY S. BAILEY | LEGAL ASSISTANT

J. Bruce Cross Russell Gunter (1950-2013)

Of Counsel All others Arkansas Bar

June 19, 2018

VIA EMAIL (russracop@att.net)

Re: June 19, 2018 Freedom of Information Act (FOIA) Request

Dear Mr. Racop:

I represent Fayetteville Public Schools (FPS) and am in receipt of your Freedom

It is the duty of FPS as custodian of the records to determine if any of the

It is FPS’s determination as custodian that this requested information is a “job

Racop v Coulter - Exhibit B - Page 2 of 3

Following the process of records review, employee notification, and Attorney

Missy McJunkins Duke

Racop v Coulter - Exhibit B - Page 3 of 3

From: Lacy S. Bailey <LBailey@CGWG.COM>

SENT ON BEHALF OF MISSY DUKE:

LACY S. BAILEY | LEGAL ASSISTANT

From: Missy Duke <mduke@cgwg.com>

MISSY MCJUNKINS DUKE | ATTORNEY

From: Lacy S. Bailey

From: Lacy S. Bailey <LBailey@CGWG.COM>

SENT ON BEHALF OF MISSY DUKE:

LACY S. BAILEY | LEGAL ASSISTANT

From: Missy Duke <mduke@cgwg.com>

MISSY MCJUNKINS DUKE | ATTORNEY

From: russracop@att.net [mailto:russracop@att.net]

From: Lacy S. Bailey <LBailey@CGWG.COM>

SENT ON BEHALF OF MISSY DUKE:

LACY S. BAILEY | LEGAL ASSISTANT

From: Missy Duke <mduke@cgwg.com>

MISSY MCJUNKINS DUKE | ATTORNEY

From: Missy Duke

MISSY MCJUNKINS DUKE | ATTORNEY

From: Lacy S. Bailey

From: russracop@att.net [mailto:russracop@att.net]

From: Lacy S. Bailey <LBailey@CGWG.COM>

SENT ON BEHALF OF MISSY DUKE: