When can a journalist or member of the public get a police officer's personnel file under the Arkansas FOIA?

Plain-English summary

Stacey Witherell, Labor and Employee Relations Manager for the City of Little Rock, asked AG Dustin McDaniel about a FOIA request for the personnel files (including photographs) of certain police officers. As records custodian, she had determined the responsive documents were "personnel records" and should be disclosed. She wanted the AG's review.

The AG could not opine on whether specific documents should be released because he had not seen them. Instead, he set out the general analytical framework that records custodians and reviewing AGs apply to FOIA requests for personnel files:

Three-part disclosure test. A document must be disclosed under the Arkansas FOIA if (1) the request is directed to an entity subject to the Act, (2) the document constitutes a public record, and (3) no exception allows it to be withheld.

Personnel records under § 25-19-105(b)(12). "Personnel records" are presumptively open unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." The custodian must weigh:

• The public interest in disclosure (transparency, accountability of officials, journalistic scrutiny).
• The privacy interest of the employee (home address, social security number, sensitive medical or family information).

The balance is fact-specific. Routine information like job title, duties, salary, and tenure is generally disclosed. Sensitive personal details may be redacted or withheld where they have no bearing on the public's interest in monitoring government.

The contrast with employee evaluation or job performance records. Under § 25-19-105(c)(1), evaluation records get a much higher level of protection: closed unless they formed the basis for suspension or termination, the disciplinary process is final, and there is a compelling public interest in disclosure. This is the more restrictive companion category, and the AG flagged it as a key distinction the custodian had to keep in mind.

Photographs. The AG noted that the request included police officer photographs but did not specifically opine on whether photographs cross the "clearly unwarranted invasion" threshold. That call is fact-specific. Some departments treat officer photographs as sensitive (because officers may work undercover or face safety concerns); others treat them as routine personnel-file material.

The AG concluded that he could not evaluate Ms. Witherell's specific release decisions without seeing the records, but he confirmed the framework she described (treating responsive documents as personnel records subject to the privacy balance) was the correct one.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What's the difference between "personnel records" and "employee evaluation records" under Arkansas FOIA?
At the time of this opinion, personnel records (§ 25-19-105(b)(12)) were presumed public, with privacy as the exception. Employee evaluation or job performance records (§ 25-19-105(c)(1)) were presumed closed, with disclosure allowed only when all four release conditions were met (suspension/termination, final disciplinary process, evaluation formed the basis, compelling public interest).

Are police officers' home addresses public under Arkansas FOIA?
At the time of this opinion, that fact-specific call typically came out on the side of withholding. Home addresses of police officers raise particular safety concerns, and Arkansas courts have generally treated them as falling within the "clearly unwarranted invasion of personal privacy" exception.

Can a journalist get a police officer's disciplinary record?
That depends on whether the record falls into the personnel-records category (privacy-balanced) or the employee-evaluation category (much more restricted). Specific disciplinary actions tied to suspensions or terminations are often the more accessible category, because they meet several of the four release conditions.

Why didn't the AG just review the records?
The AG's advisory opinion role on FOIA disputes is legal, not factual. He provides the framework. The custodian (and ultimately a court, if challenged) applies the framework to specific documents.

What if the requester or subject disagrees with the custodian's call?
Either side could continue to seek AG review under A.C.A. § 25-19-105(c)(3)(B)(i), and either side could ultimately go to court. The AG opinion is advisory but typically persuasive.

Background and statutory framework

Arkansas FOIA (A.C.A. § 25-19-101 et seq.) creates a strong presumption of public access to government records. Two specific exemptions cover employee-related records:

• § 25-19-105(b)(12) (personnel records): presumed open, withheld only where disclosure would constitute a "clearly unwarranted invasion of personal privacy." The balance is fact-specific.
• § 25-19-105(c)(1) (employee evaluation or job performance records): presumed closed, released only on a four-part test (suspension/termination, finality, basis, compelling public interest).

A.C.A. § 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject the right to seek AG review of a release decision. The AG opinion is one tool short of litigation.

The personnel-records category typically includes routine employment data: job title, salary, tenure, public credentials, and similar. The privacy line typically protects home address, social security number, family information, sensitive medical or financial details that have no bearing on official conduct. The AG's analysis tracks the standard custodian-side checklist that local-government records officers apply to FOIA requests for employee files.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (right to seek AG opinion)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records exemption)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (5th ed., 2009) (general treatise on Arkansas FOIA)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusnN McDANIEL
Opinion No. 2014-011
February 5, 2014
Ms. Stacey Witherell
Labor and Employee Relations Manager
City of Little Rock
500 West Markham, Suite 130W
Little Rock, Arkansas 72201-1428
Dear Ms. Witherell:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the records custodian, is based on
A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013). This subsection authorizes the
custodian, requester, or the subject of personnel or employee evaluation records to
seek an opinion from this office stating whether the custodian's decision regarding
the release of such records is consistent with the FOIA.
Your letter indicates that someone has requested the personnel files, including
photographs, for a list of certain police officers. You have determined that the
responsive documents are best characterized as personnel records and should be
disclosed. You ask whether these decisions are consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Not having seen the records at issue, I cannot opine about the release of any
particular document. I can, however, discuss the general rules regarding personnel
records.
DISCUSSION
A document must be disclosed in response to a FOIA request if all three of the
following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public record.
323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 •FAX (501) 682-8084
INTERNET WEBSITE • http://www.ag.state.ar.us/ Stacey Witherell, City of Little Rock
Opinion No. 2014-011
Page 2
Third, no exceptions allow the document to be withheld. Because the only
question here is about the applicability of the exception for personnel records, I
will confine my discussion to that exception.
When custodians assess whether the personnel-records exception applies to a
particular record, they must make two determinations. First, they must determine
whether the record meets the definition of a personnel record. Second, assuming it
does, the custodian must apply the appropriate test to determine whether the FOIA
requires that record be disclosed.
While the FOIA does not define the term "personnel records," this office has
consistently opined that "personnel records" are all records other than employee
evaluation and job performance records that pertain to individual employees. 1
Whether a particular record meets this definition is, of course, a question of fact
that can only be definitively determined by reviewing the record itself. If a
document meets this definition, then it is open to public inspection and copying
except "to the extent that disclosure would constitute a clearly unwarranted
invasion of personal privacy. "2
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,3 has provided
some guidance. To determine whether the release of a personnel record would
constitute a "clearly unwarranted invasion of personal privacy," the court applies a
balancing test that weighs the public's interest in accessing the records against the
individual's interest in keeping them private. The balancing takes place with a
thumb on the scale favoring disclosure.
The balancing test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimus
privacy interest.4 If the privacy interest is merely de minimus, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimus privacy interest, then the
1 See, e.g., Op. Att'y Gen. No. 1999-147; John J. Watkins & Richard J. Peltz, THE ARKANSAS
FREEDOM OF INFORMATION ACT 187 (Arkansas Law Press, 5th ed., 2009).
2 A.C.A. § 25-19-105(b)(12) (Supp. 2013).
3 Youngv. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
4 Id. at 598, 826 S.W.2d at 255. Stacey Witherell, City of Little Rock
Opinion No. 2014-011
Page 3
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. 5 Because the exceptions must be narrowly construed, the
person resisting disclosure bears the burden of showing that, under the
circumstances, his privacy interests outweigh the public's interests.6 The fact that
the subject of any such records may consider release of the records an unwarranted
invasion of personal privacy is irrelevant to the analysis because the test is
objective.7
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact. 8
Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:
• dates of birth of public employees (Op. 2007-064);
• social security numbers (Ops. 2006-035, 2003-153);
• medical information (Op. 2003-153);
• driver's license numbers (Op. 2007-025);
• insurance coverage (Op. 2004-167);
• tax information or withholding (Ops. 2005-194, 2003-385);
• payroll deductions (Op. 98-126);
• banking information (Op. 2005-195);
• unlisted telephone numbers (Op. 2005-114);
5 Id., 826 S.W.2d at 255.
6 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
7 E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
8 Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-00 I. Stacey Witherell, City of Little Rock
Opinion No. 2014-011
Page 4
• home addresses of most public employees (A.C.A. § 25-19-105(b)(13));
personal e-mail addresses (Op. 2004-225);
• marital status of employees and information about dependents (Op. 2001-
080); and
• any information that would identify an undercover law enforcement officer
fallingwithinA.C.A. § 25-19-105(b)(l0).
With regard to the last item, while my review under subsection 25-19-
105( c )(3)(B)(i) is limited to discussing -105(b)(l2) and -105(c)(l), I will note that
this office has long opined that the photographs of police officers are personnel
records and that photographs of undercover police officers are exempt from
disclosure (e.g. Opinion No. 96-005). Further, if a department currently employs
undercover officers, certain kinds of FOIA requests may render it practically
impossible to refrain from effectively identifying the department's undercover
officers. For example, if a FOIA request seeks the photographs of officers on a
specific list, and the custodian releases only the non-undercover officers' photos,
then the requester can determine that the officer whose photograph was not
released is undercover. That procedure would violate -105(b )( 10) because it
effectively discloses the "identity" of the undercover officer. In my opinion, the
more reasonable approach is as follows: When a law enforcement agency employs
officers who fall within -105(b)(l0), the agency should not disclose the
photographs of any of its officers.
You, as the custodian, should apply the foregoing definitions and standards for
disclosure to each individual record that you believe to be responsive to the FOIA
request.
Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.
Sincerely,
ft-L·
DUSTIN MCDANIEL
Attorney General
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