Sexual harassment complaint was made against legislator; attorney general advises investigation materials protected from FOI | Arkansas Blog

Saturday, December 16, 2017

Sexual harassment complaint was made against legislator; attorney general advises investigation materials protected from FOI

Posted By on Sat, Dec 16, 2017 at 8:54 AM

click to enlarge RUTLEDGE: Investigation materials around harassment claim exempt from disclosure.
  • RUTLEDGE: Investigation materials around harassment claim exempt from disclosure.

An attorney general's opinion released yesterday reveals a potentially explosive piece of news: Someone sent a Freedom of Information Act request to the Arkansas House of Representatives for "any documents,records, or correspondence related to complaints of sexual misconduct or harassment made against legislators since the year 2008." The request turned up one document within the scope of interest.

Attorney General Leslie Rutledge yesterday issued an opinion that withholding the document from release was consistent with the law because of an exemption for "employee evaluation or job performance records."

The opinion comes in response to a request for guidance from House Speaker Jeremy Gillam. According to Gillam's letter to Rutledge, the document "was created in connection with the investigation of alleged harassment."

Gillam stated that he believed the document was exempt from disclosure due to exemptions for "unpublished memoranda, working papers, and correspondence of .. . members of the General Assembly" and because the document "is an employee evaluation record that is exempt from disclosure [under Ark. Code Ann. § 25-19-105(c)(l)], or that it is a personnel record that, if released, would constitute a clearly unwarranted invasion of privacy [under Ark. Code Ann. § 25-19-105(b)(12)]."

Rutledge found that the document was clearly a public record subject to disclosure unless it met one of the law's exemptions. However, she argued that because it was generated as part of investigation of employee misconduct — and the employee was not terminated or suspended — the document was exempt from disclosure as an employee evaluation or job performance record. (Rutledge did not directly comment on Gillam's other two theories for exemption.)

In her opinion, Rutledge laid out the criteria that she said must be met for an "employee evaluation or job performance record" to be subject to the FOIA, which she argued exempted the document relating to the harassment investigation against a legislator because there was no suspension or termination:

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).

It appears from the background information you have provided that the document in question was solicited by the employer for purposes of investigating alleged misconduct in the workplace. It therefore qualifies as an employee-evaluation record under the above definition. As an employee-evaluation record, it cannot be released unless all the elements listed above are met. You have stated that there were no suspensions or terminations in connection with the investigation. Thus, the level-of-discipline element has not been met. 
I'm no lawyer, but this seems like a curious finding if in fact the allegation was made against a legislator, who is not simply an employee of the House of Representatives. House leadership cannot fire or suspend a member in the manner of an employer — would that make any investigation exempt short of impeachment proceedings?

One possibility is that the investigation involved a staff member, who clearly is an employee who can be fired or suspended and would fit under the exemption Rutledge describes. But according to Rutledge's opinion, the FOIA request was for "any documents,records, or correspondence related to complaints of sexual misconduct or harassment made against legislators since the year 2008 [emphasis mine]." Could the complaint have been made against a legislator for the behavior of a staff member? With the document being withheld from public disclosure, we just don't know.

p.s. You my recall that this very exemption was applied to Rutledge's own personnel records while she was an employee at the Department of Human Services. Her file included a "do not rehire" note from a supervisor written 10 days after her resignation, with coding indicating it was based on "gross misconduct." Emails relating to the matter were ruled exempt from the FOI as employee evaluation or job performance record because she was neither fired nor suspended. Rutledge refused to voluntarily allow DHS to reveal the documents, as she could have under the law. 

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