Can an Arkansas county sheriff's department withhold a 13-year-old letter of reprimand and suspension issued to a deputy just because the underlying incident never became publicly controversial?

Plain-English summary

Washington County Attorney George Butler reviewed an FOIA request from a county jail inmate seeking all documents from January 1999 forward relating to "charges" and "complaints" against a specific Washington County Sheriff's Department deputy. One responsive document was a letter captioned "Letter of Reprimand" but imposing real sanctions, including a suspension. It dated to 2001 (13 years before the request). The custodian decided to withhold the letter on two grounds: the incident was old and never became publicly controversial, so there was no "compelling public interest" in disclosure.

AG Dustin McDaniel sustained the classification (employee evaluation record) but disagreed with the withholding decision. The opinion turned on two distinct points:

Rank and the law-enforcement multiplier. The custodian had emphasized the deputy's relatively low rank as a factor weighing against disclosure. The AG said that emphasis was overblown. Rank "may be relevant" under prior AG opinions and the leading commentators, but in the law-enforcement context the public interest in the conduct of officers is so strong that the "cop on the beat is just as important as the chief of police." Low rank gets minimal weight when the employee is a law enforcement officer.

Lack of public controversy is not dispositive. The AG explained the logical problem with treating absence of public controversy as a barrier to release: public controversy requires public awareness of the underlying incident. If the public is unaware (as is often the case with disciplinary matters), there can be no controversy. Treating absence of controversy as evidence that no compelling interest exists would create a closed loop: discipline that is internally handled and not publicized would always be exempt. That cannot be right; egregious misconduct does not earn confidentiality by virtue of having been kept quiet.

The specific facts here pushed strongly toward release. The reviewed letter showed that the investigation had widened to cover the deputy's lack of candor in the investigation itself, meaning the discipline reflected a betrayal of public trust by a law enforcement officer. The AG has consistently held that violation of rules designed to avoid undermining public trust gives rise to a compelling public interest in disclosure on its own. Lack of candor in an internal investigation might be "compelling in its own right" regardless of what prompted the investigation in the first place. The fact that the misconduct was old was, at most, a minor mitigating factor, especially since the deputy was still on the force.

The AG concluded the custodian's decision to withhold was inconsistent with the FOIA.

The opinion footnotes a standing issue: A.C.A. § 25-19-105(a)(1)(B) denies inmates with felony convictions access to FOIA records. The AG's inquiries confirmed the inmate-requester did not have a disqualifying felony.

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 four conditions have to be met for an employee evaluation record to be released under the Arkansas FOIA?
(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. (4) A compelling public interest exists in the records' disclosure. The first three are usually straightforward; the fourth is where most disputes happen.

What factors go into "compelling public interest" under prior AG opinions?
The Watkins & Peltz treatise (which the AG cites and adopts) lists: (1) the nature of the infraction, with particular attention to violations of public trust or gross incompetence; (2) the existence of a public controversy; (3) the employee's position within the agency. A general interest in the performance of public employees is always present and therefore is not compelling on its own.

Is the absence of public controversy ever relevant?
The AG says yes, but only when the public is in fact aware of the underlying incident. Where the public is unaware of the incident in the first place (because it was internally handled and not publicized), absence of controversy establishes nothing about whether a compelling interest exists.

What kind of misconduct is "compelling" on its own?
The AG identifies violations of rules "directly designed to avoid any compromise of public safety and order," including lack of candor by an officer during an internal investigation. The AG describes lack of candor as potentially compelling "in its own right" regardless of what triggered the investigation.

Why doesn't 13 years of elapsed time matter more here?
The AG treated the passage of time as a minor mitigating factor, not a categorical bar. The reasoning emphasizes that the deputy "remains a deputy sheriff." A discipline record about ongoing personnel of a law enforcement agency retains current public-interest weight even when the underlying incident is old.

How does this opinion fit with later FOIA opinions on lack of candor?
The AG cross-references Op. Att'y Gen. 2010-055 (rule-violation cases) and 97-400. The lack-of-candor framing in this opinion has been echoed in later opinions involving similar investigative deception by officers.

Background and statutory framework

The Arkansas FOIA distinguishes "personnel records" (A.C.A. § 25-19-105(b)(12)) from "employee evaluation or job performance records" (A.C.A. § 25-19-105(c)(1)). The categories are mutually exclusive for FOIA purposes. Personnel records are open except where disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records are closed except on final resolution of a suspension or termination, where the record formed a basis for the decision, and where a compelling public interest exists.

In Thomas v. Hall, the Arkansas Supreme Court adopted the AG's three-part test for evaluation records: records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance or lack of performance. Investigative records that detail incidents giving rise to allegations of misconduct fit within this category.

The opinion gives compelling-public-interest analysis particular force in law enforcement cases by citing the Watkins & Peltz treatise: "[T]he public has a great interest in the job performance of police officers . . . and . . . the cop on the beat is just as important as the chief of police." This treatise statement, repeatedly cited by the AG, anchors the analytical move from rank-as-relevant to rank-as-minimal-weight in law enforcement contexts.

The AG opinion-request channel under A.C.A. § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject seek an AG ruling on whether a release decision is consistent with the FOIA. The AG's role is reviewing the decision, not setting policy; but the opinion reads more like substantive guidance than a narrow consistency check.

Citations

• A.C.A. §§ 25-19-101 to -110 (Repl. 2002 and Supp. 2013) (FOIA)
• A.C.A. § 25-19-103(5)(A) (Supp. 2013) (definition of "public records")
• A.C.A. § 25-19-105(a)(1)(B) (Supp. 2013) (inmate-access bar for felony convicts)
• A.C.A. § 25-19-105(b)(12) (Supp. 2013) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (employee evaluation records exemption)
• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG opinion request mechanism)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (three-part test for evaluation records)
• Op. Att'y Gen. 2010-055, 97-400, 2012-112, 2014-111, 2013-104 (rule-violation and law-enforcement-records line)
• Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed. 2009)

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. 2014-122

October 29, 2014

The Honorable George Butler, Jr.
Washington County Attorney
280 North College, Suite 501
Fayetteville, AR 72701

Dear Mr. Butler:

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 decision regarding the release of requested records.

You report that an inmate at the Washington County Detention Center has made an FOIA request for all documents relating to "charges" and "complaints" filed against a deputy in the Washington County Sheriff's Department (the "Department") from January 1, 1999 through the present. You have asked me to review one responsive document, which the custodian has classified as a "job evaluation record." You report the following regarding this record:

The employee has objected to the release of this record, and the custodian has determined, in light of the fact that this record was generated back in 2001 and no controversy existed at the time of its issuance, nor does any such controversy now exist, that there is no compelling public interest in its disclosure.

RESPONSE

In my opinion, based upon my review of the single document at issue, a record captioned "Letter of Reprimand" but imposing various sanctions, including a suspension, the custodian was correct in classifying the document as an employee evaluation/job performance record. Applying the standard applicable to such documents, I question that she was correct in withholding the document based only on her findings that the incident giving rise to the investigation occurred several decades ago and has never been the subject of public controversy. I am unaware of the circumstances that generated the internal investigation and hence cannot assess the gravity of the misconduct investigated. The document you have submitted, however, reflects significant misconduct by the deputy in the course of the investigation itself, a fact that may well have prompted the disciplinary measures, including an unpaid suspension, imposed by the Department. Given this background, as well as the subject's status as a law enforcement 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.

With respect to the second element, the FOIA defines the term "public records" as follows:

"Public records" means writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

Based upon my review of the record here at issue, I conclude that it clearly qualifies as a "public record" under this definition.

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 document at issue is "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 Department document you have submitted, I agree that it constitutes an employee evaluation/job performance record under this definition.

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.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

II. Application

You report that the custodian in this case has decided to withhold the document because no compelling public interest exists in its disclosure. All other conditions for disclosure under the standard set forth above appear to have been met. The question arises, then, whether the circumstances prompting the suspension indeed are of 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 deputy sheriff, 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 law-enforcement officer at the time of the incident at issue.

As further noted above, the existence of a public controversy relating to an incident of official misconduct may reflect that a compelling public interest exists in disclosure of related, otherwise disclosable disciplinary records. Conversely, assuming the public is aware of the incident, the absence of public controversy relating thereto may support withholding an otherwise disclosable job performance record relating to a disciplinary action. As reflected in my use of the highlighted conditionals, however, neither principle is inevitable or invariably dispositive, a qualifier the custodian in this instance appears to have overlooked in suggesting that the absence of publicity flatly forecloses disclosure.

As suggested in my previous paragraph, the existence of a public controversy presupposes public awareness of the underlying episode giving rise to the controversy. But absent such awareness, the public will remain simply ignorant of the underlying episode of misconduct. Under such circumstances, the absence of public controversy establishes little with respect to whether a compelling public interest in disclosure exists. Nevertheless, the custodian in this case appears mistakenly to have concluded that the mere absence of public controversy requires that the record be withheld. If such is the case, I consider this conclusion a misapplication of the FOIA.

Far more pertinent to the analysis in this case is the fact that the misconduct in this instance involved official deception, i.e., a betrayal of the public trust, leading to disciplinary action that involved not only a suspension, but also various other significant punitive sanctions for the misconduct. The investigation regarding the underlying incident, whose details are not explored in the record provided, was extended in this case to include the subject's lack of candor in the course of the internal investigation itself. The suspension in this instance thus appears to have 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.

Lack of candor by an officer in a law-enforcement internal investigation might properly be characterized as "compelling" in its own right, whatever may have been the import of the episode that prompted the investigation. In my opinion, this conclusion alone would support release of the record. I consider the fact that the infraction occurred years in the past only a minor mitigating factor with respect to this incident, particularly in light of the fact that the subject of the discipline remains a deputy sheriff. To the extent, moreover, that the custodian based her decision to withhold the record largely upon the fact that the discipline generated no public controversy, I believe she acted inconsistently with the FOIA.

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

Attorney General

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