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 ...