Nelson: Wants Game and Fish employee identities protected | Arkansas Blog

Nelson: Wants Game and Fish employee identities protected

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NO FOI SUIT: Sheffield Nelson
  • NO FOI SUIT: Sheffield Nelson
I've written this week about the release of a Game and Fish Commission survey of employee morale (low).

Much of the discussion since has been whether all information gathered in that survey should be released under the state Freedom of Information Act, particularly names of employees, which were redacted in the summary by the private firm that did the survey. Employees had been promised anonymity.

Former Game and Fish Commission member Sheffield Nelson's law firm, through attorney Don Eilbott, today has written a letter to Game and Fish and its private attorney making it clear that they DO NOT want the names of employees released as a result of their FOI request on the issue, though they think the names of commissioners mentioned in employee comments SHOULD be released under the FOI. Mark Duda, who heads the survey firm, had also redacted commissioner names, though, based on my conversations with various people yesterday, there might be an evolving legal opinion that they are not "employees" under terms of the Freedom of Information Act and thus should not be protected.

Here's Eilbott's letter. It says in part:

This firm has been involved with AGFC in matters relating to FOIA for some time. I am personally pleased that AGFC appears to be adopting a position that FOIA is completely and totally applicable to it. Certainly none of the items I have received and reviewed in any way questions the applicability of FOIA to AGFC.

At the same time, this firm has strongly maintained its position that AGFC employees should be free, on an anonymous basis, to exercise their free speech rights and make anonymous comments concerning the performance of their agency and the persons involved in the management of same, including the individual commissioners on an anonymous basis. You will specifically recall this firm vehemently fought the attempts of AGFC and your law firm to
subpoena the personal telephone records of my client, Sheffield Nelson. It was apparent and obvious at that time that those attempts were directed toward obtaining telephone numbers whereby the identity of various persons who were AGFC employees could be determined. Mr. Nelson opposed those efforts to protect the anonymity of AGFC employees who had contacted him and provided anonymous information. Mr. Nelson did not know the identity of those persons but AGFC was determined to identify them.

As I mentioned yesterday, Game and Fish and its attorney, the Quattlebaum firm, said they were attempting to get unredacted copies of the survey for the law firm to hold in the event someone successfully sued under the FOI to obtain that material. They suggested that might be Nelson's aim. He is making it clear today he does not want that information. He believes, further, that the move to get the information from the consultants' hands into those of the Game and Fish law firm is a backdoor way for the agency to get its hands on which employees said what about whom. His letter said:

Most importantly, I am concerned that AGFC is now attempting to utilize my FOIA request and perhaps the request of others to obtain the identities of individual AGFC employees. This is the same issue we addressed previously and fought so hard to maintain anonymity. Simply stated, it is my position that the names of individual AGFC commissioners or former commissioners should be supplied in the report. Those persons are not "employees." They do not have personnel files and they are not subject to disciplinary proceedings.

Game and Fish attorneys, both in the agency and out, say 1) the consultant says he no longer has the ability to match up open-ended survey responses with those who made them. so he'll be unable to identify who made critical remarks. 2) they WANT the names of the commissioners released; Duda made the decision to redact those names, not them. 3) comments ABOUT other employees, but not the commissioners, will continue to be redacted under their interpretation of the law protecting personnel evaluations. 4) Any unredacted information provided to the legal counsel will remain the private legal counsel's hands and not be provided to anyone at Game and Fish, commissioners or employees.

I had, like Nelson, made an FOI for the survey information. Legal opinions vary on the question of whether those identities are public information. But in light of the promise of confidentiality to employees, I have said that I would not challenge a decision to protect employees' identities. Commissioners, however, are not employees. The Arkansas Democrat-Gazette had also filed an FOI request. It hasn't yet said how it intends to proceed on unreleased information.

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