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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
Reed BREWER, Appellee

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[Copyrighted Material Omitted]

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          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. Nabholz 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

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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 ...

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