The attorney general’s office said in an official opinion today that at least some of the e-mail of Leslie Rutledge withheld by the Department of Human Services following FOI requests should be released. But further review is required.

The Arkansas Times and others requested 2007 e-mail to and from Rutledge, the Republican nominee for attorney general, iwhen she was a staff attorney handling matters in juvenile court. The requests followed our disclosure that her personnel filed included a “do not rehire” note from a supervisor. It was written 10 days after her abrupt resignation (she said to work for the Huckabee presidential campaign). The coding on her termination file indicated the decision was based on “gross misconduct.” DHS officials won’t discuss the matter since she was neither fired nor suspended and evaluation records are protected Rutledge claims to be mystified by a negative rating and has intimated that politics were somehow involved. She has refuse  to voluntarily allow DHS to reveal documents that further support her negative evaluation.

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When the e-mail, some 1,300 messages, was released, the DHS withheld a small batch at Rutledge’s request and sent them to the attorney general for further review as to whether they constituted work evaluation, and thus could be kept confidential. Attorney General Dustin McDaniel, who is supporting Republican Rutledge’s opponent, Democrat Nate Steel, said he didn’t participate in the review, nor did his chief of staff. He asked retired Supreme Court Justice Annabelle Imber Tuck to review the documents, along with Deputy Attorney General Beth Walker. The summary of their review:

Is the decision of the custodian of records to release copies of all emails sent and received by a former DHS employee, excluding any emails that deal with confidential information regarding cases handled, in response to a Freedom of Information Act (“FOIA”) request, consistent with provisions of the FOIA?

RESPONSE: The custodian’s decision is partially consistent with the FOIA. This office agrees that those emails properly classified as personnel records (as identified in this opinion) are subject to disclosure. But as explained in the opinion, it seems clear from the face of the documents that some constitute employee-evaluation records. The custodian has not applied the proper test for disclosure as to the latter. Additionally, this office is unable to determine the proper classification of a few of the emails; and several of the emails include a personal email address that must be deleted (pursuant to 25-19-105(b)(13)) prior to release.

Here’s the full opinion.

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It says of 52 pages of e-mails, 17 were not duplicative. The reviewers found that nine pages were releasable personnel records. It found that six were employee-evaluation records and thus exempt from required disclosure. They said  they were unable to determine how two pages should be classified.

The emails reflected on these pages clearly detail the employee’s job performance, at the behest of a supervisor. But it is not clear from their face whether they were created for evaluation purposes so as to constitute employee-evaluation records. A fact question therefore remains regarding the proper classification of these emails. 

The bottom line seems clear. DHS has papers that bear on Rutledge’s job performance. (And not just these e-mails, but supervisor materials.) It is within Rutledge’s power to ask that they be released. Absent full disclosure, all we know is that superiors found her unsuitable for rehire. If their evaluation is unfair, inaccurate or not based on credible evidence, an examination should shine a light on it. Rutledge should let the sun shine  on her work at DHS. If she’s unfit to work with juveniles in need of state services, can she be fit to represent the entire state?

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I’m seeking the documents that have been cleared for release, but expect they’ll be as enlightening as the first batch of routine correspondence.