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Davis v. Van Buren School District

Court of Appeals of Arkansas, Division I

March 6, 2019

MICHELLE DAVIS APPELLANT
v.
VAN BUREN SCHOOL DISTRICT APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CV-17-97] HONORABLE MICHAEL MEDLOCK, JUDGE

          Lisa-Marie Norris, for appellant.

          Bequette, Billingsley & Kees, P.A., by: George J. Bequette, Jr., and W. Cody Kees, for appellee.

          KENNETH S. HIXSON, JUDGE

         Appellant Michelle Davis appeals from a final order dismissing her complaint in favor of appellee Van Buren School District. On appeal, appellant contends that the circuit court erred in ruling that the job-performance records at issue are not subject to disclosure under the Freedom of Information Act (FOIA), Arkansas Code Annotated sections 25-19-101 through -110 (Repl. 2015). We affirm.

         I. Relevant Facts

         Appellant filed her complaint on March 2, 2017, under FOIA to compel appellee to provide all records of the Van Buren School District pertaining to two investigations involving altercations that occurred between her son and two teachers within the school district. Appellant alleged that the first incident occurred at the Van Buren Freshman Academy on September 14, 2015, and the second incident occurred at Northridge Middle School on September 9, 2016. She further alleged that it was her belief that no action was taken against the teacher involved in the first incident but that the teacher responsible for the second incident had been terminated. Appellant stated that the superintendent of the Van Buren School District, Dr. Harold Jeffcoat, refused her FOIA request in an email stating, "The records you have requested were generated as a result of allegations related to the employee's job performance. The District does not have any non-exempt records responsive to your request under FOIA." Therefore, in her complaint, appellant prayed for a hearing, for an order requiring appellee to make available the records she requested, and for reasonable attorney's fees and costs.

         Appellee filed its answer and affirmatively pleaded the following:

14. Defendant affirmatively pleads the records requested by Plaintiff constitute employee evaluation or job performance records, which shall be open for public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records from a basis for the decision to suspend or terminate the employee and if there is a compelling interest in their disclosure. See Ark. Code Ann. § 25-19-105(c)(1).
15. Defendant affirmatively pleads the documents requested by Plaintiff were generated as a result of allegations related to an employee's job performance, and therefore constitute a job performance record, and they were not used in the final administrative resolution of any suspension or termination proceeding of the employee, and therefore they are exempt from disclosure.
16. Defendant affirmatively states there are other compelling public interest reasons which preclude disclosure of the requested documents, pursuant to Ark. Code Ann. § 25-19-105(c)(1).

         Thereafter, appellant filed a motion to compel answers to her requests for interrogatories and production of documents. A hearing on appellant's motion to compel and on her complaint was held on March 13, 2018.[1] Regarding appellant's complaint, the parties argued their respective positions at the hearing. At the outset, appellant stated, "I don't think there's really any disputed facts here. It's really just a legal determination for the Court to make whether the exemption that the school district is alleging is valid or not." Appellant argued that the records are not exempt under FOIA. Regarding records from the first incident, appellant argued that any investigative report should not be considered a job-performance or employee-evaluation record because nothing was ultimately done to the employee. Instead, she argued that any report should be considered a personnel record that is subject to disclosure. Regarding records from the second incident, appellant argued that the records should be disclosed under the section 25-19-105(c) exception because the employee was either terminated as a result of the investigative report or resigned as part of an agreement in lieu of being suspended or terminated.

         Appellee disagreed and argued that records from both incidents are exempt under section 25-19-105. In both incidents, there was no final administrative resolution or any decision to suspend or terminate. It was undisputed that the employee involved in the first incident was not suspended or terminated. Appellee further explained that although the employee involved in the second incident ultimately resigned, the employee did not do so based on any agreement with appellee. Rather, the employee proffered a resignation when confronted with the allegations and was told that the matter was under investigation. At the conclusion of the hearing, the circuit made the following oral ruling:

I think at this point without more than what we have Mr. Holmes [appellant's counsel] I'm going to have to deny your request. I mean, I understand the kind of predicament that you're in, but it appears that at least the exemption here protects, if you want to call that, the school from disclosure. My, again, my - it's my - my problem is I can't distinguish based on what's been said that there may not be something that I would call an incident report or something that describes what's going on, but at this point with their argument and ...

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