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Gillespie v. Brewer

Court of Appeals of Arkansas, Division III

May 15, 2019

CINDY GILLESPIE, IN HER OFFICIAL CAPACITY AS DIRECTOR OF ARKANSAS DEPARTMENT OF HUMAN SERVICES APPELLANT
v.
REED BREWER APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. 60CV-2018-5634] HONORABLE TIMOTHY DAVIS FOX, JUDGE.

          Michael Brechlin, Office of Chief Counsel, for appellant.

          Stanford Law Firm, PLLC, by: Christopher Burks, for appellee.

          PHILLIP T. WHITEAKER, JUDGE.

         Appellant Cindy Gillespie, in her capacity as director of the Arkansas Department of Human Services ("Department"), appeals a Pulaski County Circuit Court order granting in part appellee Reed Brewer's request for documents under the Arkansas Freedom of Information Act (FOIA). On behalf of the Department, Gillespie argues that the trial court erred because the documents are not subject to disclosure under FOIA. Because the Department has already released the disputed documents, we dismiss the appeal as moot and do not address the merits of the arguments raised on appeal.

         I. Factual and Procedural History

         This appeal involves a request by Brewer pursuant to the Arkansas Freedom of Information Act seeking information contained in the personnel file of one of the Department's employees. Before addressing the actual request at issue in this appeal, we provide a short analysis of FOIA. FOIA sets forth a general policy for all public records to be "open to inspection" unless they are specifically exempt. Hyman v. Sadler for Ark. State Police, 2018 Ark.App. 82, 539 S.W.3d 642. Our supreme court has held that for a record to be subject to FOIA and available to the public, it must (1) be possessed by an entity covered by the Act, (2) fall within the Act's definition of a public record, and (3) not be exempt by the Act or other statutes. Nabholtz Constr. Corp. v. Contractors for Pub. Prot. Ass'n, 371 Ark. 411, 266 S.W.3d 689 (2007). In this appeal, it is undisputed that the Department is an entity covered by the Act and that the documents requested by Brewer are public records within the Act's definition. The issue of controversy between the parties is whether the requested documents are subject to, or exempt from, disclosure. Under FOIA, the legislature has determined that "employee evaluation or job performance records" should be treated differently than other personnel records based on the public's interest in maintaining an effective public-employee-evaluation system and in the privacy interests of its employees. Hyman, supra. Thus, FOIA contains a general exemption provision for the disclosure of personnel records, Ark. Code Ann. § 25-19-105(b)(12)(Supp. 2017), and a specific exemption provision for the disclosure of employee-evaluation or job-performance records, Ark. Code Ann. § 25-19-105(c)(1).

         On July 2, 2018, Brewer filed a FOIA request with the Department requesting documents from the personnel file of a former employee, Leslie Rutledge, [1] along with any correspondence between Ms. Rutledge and the Department since she left its employ. More specifically, the request sought "evaluations, records related to disciplinary history, suspension, complaints, termination and/or resignation and do-not-rehire requests, human resources memorandums or notes, and related emails" and any communication sent to or received by any employee of the Department, whether internal or external, regarding her personnel file or the aforementioned documents. On July 5, 2018, the Department requested an extension of five business days because the material requested contained personnel information, some of which required redaction or permission for disclosure. Brewer did not agree to the extension, and the Department did not provide the documents as requested. Despite not having been provided the requested documents, Brewer took no immediate action. On July 25, 2018, the Department again requested another extension until August 3, 2018, so that it could complete its search for the requested emails. In response, Brewer agreed to an extension for personnel-related information until the close of business on July 27, 2018.[2] The Department complied with the extension date.

         On July 27, 2018, the Department provided Brewer with fifty-one pages of information from Ms. Rutledge's personnel file. The Department redacted and omitted information that it asserted was not subject to disclosure under FOIA. The documents redacted and omitted by the Department consisted of eight pages. These eight pages consisted primarily of a counseling statement[3] dated May 1, 2007; a career-ladder-incentive program (CLIP)[4] eligibility and rating form with instructions dated March 30, 2007, and a form generated by the Department in January 2009 in response to a payment of an unemployment-benefits claim filed by Ms. Rutledge.

         On August 9, 2018, Brewer filed a complaint in the Pulaski County Circuit Court, alleging that the Department had violated FOIA by failing to release certain personnel and employee-evaluation records related to Ms. Rutledge. His complaint raised three basic contentions: (1) Ms. Rutledge is currently the state's chief law enforcement officer and is entrusted with millions of taxpayer dollars; (2) she was formerly employed by the Department and was terminated by it; and (3) the Department's termination of Ms. Rutledge likely meant there was conduct that could have undermined the public trust, compromised public safety, or was possibly even illegal. Thus, Brewer took the position that there was a compelling public interest in releasing Ms. Rutledge's job-performance records since those records would shed light on how a high-level law enforcement official handled internal government workings and either did or did not comply with the public funds and responsibilities entrusted to her. He also claimed that because Ms. Rutledge was a public figure who had willingly put her job performance in the public spotlight, the release of these records would not be a clearly unwarranted invasion of personal privacy. The Department answered the complaint, asserting that Ms. Rutledge had not been terminated but had voluntarily resigned in 2007; that certain emails requested by Brewer were not available and had been automatically deleted from its computer system after five years of retention; and that the documents were not subject to FOIA.

         The circuit court scheduled a hearing on the controversy between the parties. At the hearing, the court conducted an in camera review of the eight pages in dispute.[5] It also heard testimony from Mark White, the deputy director of the Division of Aging, Adult, and Behavioral Health Services-the only witness to testify. Concerning the seven pages of documents at issue, White testified that the documents were Ms. Rutledge's personnel records that would be held to the invasion-of-privacy standard under FOIA. More specifically, he testified that in 2014, the Department had received a similar request for Ms. Rutledge's records while he was chief counsel for the Department. At that time, he reviewed the records to determine whether they were employee-evaluation records. He determined that the records were employee-evaluation records that could be released only if Ms. Rutledge had been terminated or suspended. He concluded that Ms. Rutledge had not been terminated or suspended but had voluntarily resigned. White reached this conclusion based on a letter of resignation from Ms. Rutledge and a request-for-personnel-action form indicating that the termination of employment was voluntary. He acknowledged that the request-for-personnel-action form for Ms. Rutledge contained an initial designation of "01," which signified a "voluntary" end of employment and that was later replaced with the notation "Termination, 21, see attached email." He further admitted that "Code 21" means "gross misconduct," that this designation signified she was not eligible for rehire, and that as a result of this designation the Department communicated to the Employment Security Department that Ms. Rutledge had been terminated for gross misconduct.[6] Despite this acknowledgment, he insisted that "Code 21" had been assigned improperly after the fact; that he saw no indication of any disciplinary process that had been initiated or was in progress at the time of her resignation; and that he saw no evidence that this was a resignation in lieu of termination.

         At the conclusion of the hearing, the trial court ruled from the bench. In its ruling, the court considered two separate subdivisions of FOIA, Ark. Code Ann. § 25-19-105(b)(12) and (c)(1). The court found that the documents were clearly disclosable under subsection (b)(12) of the statute and that there was enough of an issue as to whether Ms. Rutledge was terminated or resigned to require production of the documents. The court specifically stated that the ruling would not be effective until a written order was entered. Three days later, the final written order was filed. In the order, the court made the following conclusions of law:

13. The court is extremely concerned by the actions taken, or those failed to be taken, by the Department of Human Services relating to Ms. ...

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