When can the press get records from an Arkansas police officer's internal investigation?

Plain-English summary

Diego Ibarguen, General Counsel for Hearst Corporation (which owns KHBS), submitted a FOIA request for suspension or termination records relating to a current Fayetteville police officer. The custodian produced some documents but withheld three internal investigative files. Two of those investigations did not result in any discipline; the third resulted in a 2001 suspension that the custodian described as discipline for "complaining."

The AG examined the records and reached a split decision:

• Two files stay closed. Investigations that did not result in suspension or termination cannot be released under A.C.A. § 25-19-105(c)(1) regardless of public interest. Element 1 of the four-part evaluation-records test simply isn't met.
• Third file must be released. The custodian's description of the conduct as "complaining" was wrong. The records actually showed the officer was suspended for refusing to perform an assigned task. The AG rejected the custodian's reasoning on the compelling-interest prong for two reasons. First, "complaining" can be a serious violation depending on context; the label alone doesn't decide anything. Second, the underlying conduct here was a refusal to perform duty, which involves a public-safety rule.

The AG made two important rulings on the compelling-interest standard. First, rank within the department is not dispositive. Citing Watkins & Peltz, the AG noted "the public has a great interest in the [job] performance of police officers . . . and in this case the 'cop on the beat' is just as important as the chief of police." The fact that the employee had been promoted since the incident actually raised the public significance of his past conduct. Second, violation of a rule "directly designed to avoid any compromise of public safety and order" automatically creates a compelling public interest if the other test elements are met. The AG was emphatic: "This office has consistently held that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of an investigative file."

The AG also noted that Hearst's interest in this matter, plus the officer's apparent pattern of three suspensions, suggested an ongoing public controversy that itself contributed to the compelling-interest analysis.

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.

Background and statutory framework

The four-part test for releasing employee-evaluation records under A.C.A. § 25-19-105(c)(1):

1. The employee was suspended or terminated.
2. There has been a final administrative resolution.
3. The records formed a basis for the discipline.
4. The public has a compelling interest in disclosure.

If any element fails, the records stay closed. Two of the three Fayetteville files failed at element 1 (no discipline). For the third file, the AG had to apply the compelling-interest test.

Watkins & Peltz, the leading Arkansas FOIA commentators, identify three factors for compelling interest: nature of the infraction (especially violations of public trust or gross incompetence), existence of a public controversy, and the employee's position. The AG's earlier opinion noted the rank factor is "tempered" for police officers because the public has a strong interest in line-officer performance.

The AG had also developed a line of opinions (97-400, 2010-055, and others) holding that violation of a rule designed to protect public safety creates compelling interest as a matter of course. This isn't a separate factor; it's a rule that, when satisfied, all but guarantees compelling interest is found.

Common questions

Why didn't the press get all three files?

The two unreleased files involved investigations that ended without discipline. Under Arkansas FOIA, if the investigation didn't result in a suspension or termination, the records cannot be released regardless of how interesting they are to the public. That's a hard rule in the statute, not a balancing test. The AG was careful to confirm this point because some press requesters assume strong public interest is enough; in Arkansas, it isn't.

Was the officer's rank really not a factor?

Rank "may be relevant," per the AG's earlier opinions. But for police officers specifically, the public's interest in a beat cop's conduct is just as strong as in a chief's. The AG considered the rank factor "of minimal weight" here. The fact that the officer had been promoted since the 2001 incident actually pushed the analysis toward disclosure, not away from it.

What does "violation of a public safety rule" mean concretely?

The AG cited Op. 2010-055 (suspensions for "violation of rules aimed at conduct which manifestly could undermine the public trust and/or compromise public safety and the safety of other Department employees") and Op. 97-400 (similar formulation). The underlying idea: police departments adopt rules to prevent specific operational failures. When an officer breaks such a rule, the public's interest in knowing about it is built into the policy choice that created the rule.

Could the custodian have re-examined the records and changed her mind?

The custodian's review under FOIA is initially her call, but she has to apply the legal standard correctly. Once the AG opined that her characterization of the conduct ("complaining") didn't match the records, she effectively had two choices: release the file, or face a circuit-court action where her position would be undercut by an AG opinion. The opinion gives a custodian a face-saving path to reverse without admitting she made a substantive error.

Why did the AG note Hearst's interest?

Public-controversy is one of the Watkins & Peltz factors for compelling interest. A press organization's documented interest in covering an officer's pattern of discipline is itself evidence that a public controversy exists. Op. Att'y Gen. 2013-044 and 2008-090 had developed this line: media coverage alone doesn't create a controversy, but media coverage of a debated issue with foreseeable substantial ramifications does.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2014-111
October 3, 2014

Diego Ibarguen, Esq.
Office of General Counsel
Hearst Corporation
300 West 57th Street
New York, NY 10019-3792

Dear Mr. Ibarguen:

I am writing in response to your request for my opinion regarding the application of the Arkansas Freedom of Information Act (the "FOIA"). The FOIA authorizes the custodian, requester, or the subject of personnel or employee evaluation records to seek an opinion from this office determining the legal propriety of the custodian's provisional decision regarding the release of requested records.

You report that the Managing Editor of KHBS, a Hearst Television station, recently submitted an FOIA request to the City of Fayetteville (the "City") seeking "suspension or termination records" related to a "currently active" or "recently concluded" internal investigation of an officer in the Fayetteville Police Department (the "Department"), as well as documents relating to previous internal investigations of the employee. The custodian has reportedly produced or pledged to produce various documents in response to this request, leaving in dispute three internal investigative files that she has determined are not subject to disclosure under the FOIA.

The custodian in her response classified the three files at issue as "job performance records." The custodian reports having applied the following criteria as supporting her decision to withhold the records:

The Arkansas FOI law requires public employee disciplinary documents to be released when they meeting [sic] the following tests:
1. They are disciplinary actions resulting in either a suspension or termination; AND
2. They meet the legal tests for being a matter of "Compelling Public Interest."

The custodian has decided to withhold the files relating to two of these matters "due to there being no suspension (and obviously no termination)." She has further decided to withhold the file relating to the third matter based on her determination that no compelling public interest exists in its disclosure. By supplementary response to the FOIA request, the custodian explained this decision as follows:

I have been authorized to let you know that the 2001 disciplinary action was for complaining. This is why the document does not, in my professional opinion, rise to meet the "Compelling Public Interest" test.

The custodian has provided me with copies of the records in question.

RESPONSE

In my opinion, based upon my review of the documents, the custodian was correct in classifying the files as employee evaluation/job performance records. Applying the standard applicable to such documents, I believe she was correct in withholding documents relating to the two matters that reportedly did not result in the employee's suspension or termination. With respect to the third investigative file, however, I question the custodian's determination that no compelling public interest exists in disclosure. Having reviewed the documents from this file, I cannot agree with the custodian's description of the disciplinary action as arising from the subject's "complaining." Rather, the records reflect that the disciplinary action resulted from the officer's apparent unwillingness to perform an assigned task. Given the nature of the activities at issue and the subject's status as a police officer, I believe the records contained in this file are indeed of compelling public interest. Accordingly, I do not believe the custodian's decision to withhold this file is consistent with the FOIA.

DISCUSSION

I. The standard governing disclosure

A document must be disclosed in response to an FOIA request if three conditions are met: first, the FOIA request is directed to an entity subject to the act; second, the requested document constitutes a "public record"; and third, the document does not fall within an express exception to disclosure requirements.

The first element is clearly met in this case, inasmuch as the Department is clearly a public entity.

Based upon my review of the records here at issue, I conclude that they clearly qualify as "public records" under A.C.A. § 25-19-103(5)(A).

The FOIA exempts from disclosure documents falling within either of two categories of documents normally found in employees' personnel files. These two categories, which are mutually exclusive for purposes of FOIA analysis, are "personnel records" and "employee evaluation or job performance records." The tests for determining whether documents falling within either group may be released differ significantly.

The custodian in this case has determined that the documents at issue are "employee evaluation or job performance records," a category the FOIA does not define. The Arkansas Supreme Court has recently adopted this office's view that this term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. Based upon my review of the files, I agree that each of the three comprises employee evaluation or job performance records.

If a document meets the above definition, the document cannot be released unless all of the following conditions are met: (1) the employee was suspended or fired; (2) the suspension or termination has been finally resolved administratively; (3) the records formed a basis for the decision to suspend or terminate the employee; and (4) a compelling public interest exists in the records' disclosure.

With regard to the final prong, the FOIA does not define the term "compelling public interest." The two leading commentators on the FOIA, however, based upon this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

II. Application

You focus your objections to the custodian's decision with respect to all three matters discussed above upon the question of whether a compelling public interest exists in disclosure of the disputed records. With respect to two of the investigative files, however, the custodian rightly concluded that no need exists even to reach the public-interest issue because neither investigation resulted in a suspension or a termination. As reflected in my discussion of the employee-evaluation exception above, regardless of the public's interest, investigative records cannot be disclosed if the investigation did not result in a suspension or a termination. No such disciplinary action occurred with respect to these two investigations. Accordingly, I concur in her decision to withhold these records.

As noted above, the custodian determined not to release the third file at issue based upon the fact that the disciplinary action resulted from the subject's "complaining," an offense she appears to feel cannot in itself give rise to a compelling public interest in disclosure. I question this conclusion for two reasons. First, as a general proposition, depending upon the context, "complaining" that results in a suspension or termination may or may not give rise to a compelling public interest. Establishing that a suspension or termination arose from "complaining," then, does nothing to resolve the question of whether the file is subject to disclosure. Secondly, and more directly to the point here, it is apparent on the face of the records that the suspension at issue in this case was not based upon the fact of the subject's "complaining," but rather upon the subject's unwillingness to perform an assigned task.

The question arises, then, whether the circumstances prompting the suspension indeed raise a compelling public interest. Various factors bear on this analysis. First, as noted above, an employee's rank in the hierarchy may bear on the strength of the public's interest in his performance. Although the employee in this instance was a rank-and-file police officer, the very fact of his being a law-enforcement officer creates a strong public interest in his official conduct. As I have previously observed in rejecting the argument that a patrol officer's relatively low rank barred record disclosure:

The opinions from this office, and the views of the leading commentators on the FOIA, indicate that rank within the hierarchy "may be relevant" to determining whether a compelling public interest exists. But, as the commentators note, this conclusion is tempered in the context of law enforcement: "[T]he public has a great interest in the [job] performance of police officers . . . , and in this case the 'cop on the beat' is just as important as the chief of police." So, in my view, the custodian's emphasis on the employee's rank is overblown. Rank "may be relevant," but given the circumstances here, it seems to be of minimal weight.

Given the circumstances of this particular case, I consider it of minimal significance that the employee was a relatively low-ranking police officer at the time of the incident at issue. Moreover, the fact that he has been promoted in rank since the incident occurred arguably raises the public significance of his past conduct.

I further consider it important that the suspension in this instance resulted from the violation of a rule directly designed to avoid any compromise of public safety and order. This office has consistently held that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of an investigative file, assuming the other conditions for release have been met, as they have in this case.

In your correspondence, you further suggest that this file is of compelling public interest because this officer's "official conduct has resulted in three suspensions," raising "deeper concerns . . . about the totality of [his] official conduct, as well as Fayetteville's efforts to address it." I agree. Indeed, your clients' interest in this matter may well in itself reflect a public controversy relating to the Department and its employees, a controversy quite possibly implicating this officer's alleged pattern of suspensions. As noted above, the very existence of such a public controversy can signal that documents relating thereto are of compelling public interest.

Accordingly, I do not believe the custodian acted consistently with the FOIA in declining to produce this investigative file.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

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