Can a sheriff's office release disciplinary records of a former deputy under Arkansas FOIA when the misconduct involved interactions with the public?

Plain-English summary

Captain Gary McClain of the Jefferson County Sheriff's Office, the records custodian, received a FOIA request seeking disciplinary records of a former employee. He identified two responsive documents and decided they should be disclosed because, in his words, "if the disciplinary action resulted in termination or suspension that the records pertaining to it are not an exemption to release."

AG Dustin McDaniel agreed with the outcome but corrected the analysis. Termination or suspension is necessary, not sufficient. The full four-part test for releasing employee-evaluation records must be satisfied: (1) the employee was suspended or terminated; (2) there was a final administrative resolution; (3) the records formed a basis for the discipline decision; and (4) there is a compelling public interest in disclosure. Most of McClain's records were employee-evaluation records (created by or at the supervisor's behest to evaluate the deputy or to communicate the reasons for discipline) and so had to clear all four prongs, not just the first.

The AG worked through the prongs. Prongs (1) through (3) were satisfied on the facts. Prong (4), compelling public interest, is always factual, but the AG noted his office had consistently opined that a compelling interest "likely exists in information reflecting a violation of departmental rules aimed at conduct which could undermine the public trust and/or compromise public safety," and that "an enhanced interest in disclosure exists in instances of law enforcement misconduct in interactions with the public." Both characterizations applied here, so the AG concluded the records reflected a degree of misconduct sufficient to generate a compelling public interest.

The AG flagged one mid-stream correction. The custodian had classified all the disciplinary records as employee-evaluation records of the former deputy. The AG agreed in general but identified one wrinkle: a narrative report recounted a statement the deputy had made about one of the report-author's family members. That portion of the report was best classified as a personnel record of the author (a different department employee), not as an evaluation record of the disciplined deputy. Under the Young v. Rice balancing test, the author had a greater-than-de-minimus privacy interest in that portion, but the public interest in police misconduct generally outweighed that interest. The exception was the actual name of the author's family member, which could be redacted without sacrificing any public-interest value. The AG instructed the custodian to redact the family member's name before release.

The opinion also closed a different loose end. The deputy whose discipline was at issue had apparently been told by someone at the AG's office that the AG needed to know why the requester wanted the records. The AG corrected that: the office told the deputy only that it needed to know what records the custodian intended to release and the reason for the custodian's decision. The requester's motive is generally irrelevant to FOIA analysis (a principle the AG had repeated in many prior opinions, citing 2013-073, 2009-030, 2008-090, 2002-067).

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 right test for releasing law enforcement disciplinary records under Arkansas FOIA at the time of this opinion?
The four-part employee-evaluation-records test, applied in full: suspension or termination, final administrative resolution, records formed a basis for the discipline decision, AND compelling public interest. Skipping any prong (as the custodian did here, by treating suspension or termination as automatically dispositive) is wrong, even when the outcome ends up correct.

Why does the AG say compelling public interest is more likely in police misconduct cases?
Because police misconduct directly threatens the public trust and may compromise public safety. Stilley v. McBride, drawing on federal Dept. of Defense v. FLRA, ties the public interest analysis to "the extent to which disclosure of the information sought would 'shed light on an agency's performance of its statutory duties.'" Disclosing how police are disciplined for misconduct sheds exactly that kind of light. The AG sharpened the point further: when the misconduct occurred in interactions with the public, the interest is enhanced.

What's the difference between an "employee-evaluation record" and a "personnel record" in this opinion?
Evaluation records are created by or at the behest of the employer to evaluate the employee, and detail the employee's performance or lack of performance on the job (Thomas v. Hall). Personnel records are all other records pertaining to individual employees that are held by the employer. In this opinion, the disciplinary records were evaluation records of the deputy, but a portion of one narrative report (recounting a statement about an author's family member) was best classified as a personnel record of the report-author.

Why does the family member's name get redacted but the rest of the report doesn't?
Because the family member's name has personal-privacy value but contributes nothing to public oversight of policing. The public interest in police misconduct can be satisfied without the name. Under the second step of the Young v. Rice balancing test, where information has high privacy value and low public-interest value, the privacy interest wins and redaction is required.

Does requester motive ever matter under Arkansas FOIA?
Generally no. Long-standing AG opinions hold the requester's intent is irrelevant to whether a record must be released. Stilley v. McBride allows requester motive to be considered as evidence of objective public interest in close cases, but motive itself is not the basis for a decision.

Does this opinion change the practice for records custodians?
It does refine the practice. Custodians cannot rely on the bare fact of suspension or termination; they must verify all four prongs, especially compelling public interest. For law enforcement records specifically, the AG signaled a default-on presumption: misconduct affecting public trust or safety, especially in public interactions, will normally clear the compelling-public-interest prong.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the AG-opinion procedure for FOIA personnel and evaluation-records release decisions.

A.C.A. § 25-19-103(5)(A) (Supp. 2013) defined "public record" broadly enough to capture all responsive disciplinary records held by a public entity.

A.C.A. § 25-19-105(b)(12) carried the personnel-records exemption with the Young v. Rice balancing test. A.C.A. § 25-19-105(c)(1) carried the employee-evaluation-records exemption with the four-part test.

Thomas v. Hall, 2012 Ark. 66, fixed the definition of employee-evaluation records as (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance. The line of AG opinions extended that definition to include disciplinary-action records and the narratives that document the conduct leading to discipline.

Young v. Rice provided the two-step privacy balancing for personnel records. Stilley v. McBride and Dept. of Defense v. FLRA anchored the "shed light on government" framing of public interest. The AG and the commentators (Watkins & Peltz) had built up a body of authority finding compelling public interest particularly likely in cases of public-trust violations, gross incompetence, and police misconduct in public interactions.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG-opinion procedure)
• A.C.A. § 25-19-103(5)(A) (Supp. 2013) (public record definition)
• A.C.A. § 25-19-105(b)(12) (Supp. 2013) (personnel records exemption with privacy balancing)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (employee-evaluation records four-part test)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step privacy balancing)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125 (1998) (public-interest framing)
• Dept. of Defense v. FLRA, 510 U.S. 487, 497 (1994) (federal-FOIA framing of public interest)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• Op. Att'y Gen. 2008-090 (compelling public interest in law enforcement misconduct)
• Op. Att'y Gen. 2007-206 (enhanced interest where misconduct involves public interactions)
• Op. Att'y Gen. 2008-065 (foundational statement of four-part test)
• Op. Att'y Gen. Nos. 2011-161, 2003-257 (disciplinary records as evaluation records)
• Op. Att'y Gen. Nos. 2009-023, 2006-106 ("basis" element met when records detail conduct leading to action)
• Op. Att'y Gen. Nos. 2013-073, 2009-030, 2008-090, 2002-067 (requester motive irrelevant)

Source

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

Original opinion text

Opinion No. 2014-088
August 8, 2014

Gary McClain, Captain
Jefferson County Sheriff's Office
Post Office Box 7837
Pine Bluff, Arkansas 71611

Dear Captain McClain:

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 correspondence and attachments indicate that your office has received a FOIA request seeking records of any disciplinary action taken against a particular former employee. You have identified two such records, and you have determined that the records must be disclosed. You state in this regard that it is your "understanding that if the disciplinary action resulted in termination or suspension that the records pertaining to it are not an exemption to release [sic]." You ask whether your decision is consistent with the FOIA.

RESPONSE

Having reviewed the records at issue, it is my opinion that your decision to release these disciplinary records is generally consistent with the FOIA. But as explained below, a name should be redacted from one of the records, in my opinion. Additionally, as also explained further below, it appears that you have not undertaken the proper analysis in deciding to release these records.

Before discussing the basis for these conclusions, I must clarify a certain matter referenced in your correspondence. You report that according to the subject of the records in question, he was told by someone in my office that it was necessary for this office to know why the person making the FOIA request was seeking his disciplinary records. The subject of the records misunderstood the information provided by my office in this respect. He was told that in order to review the custodian's decision, this office would need to know what records the custodian intends to release and the reason for the custodian's decision. As custodian, you presumably are aware that a person's motive for seeking public records is generally irrelevant to the question whether the release of records is consistent with the FOIA. Numerous opinions of this office note the long-held view to that effect.

DISCUSSION

I. General standards governing disclosure.

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. Third, no exceptions allow the document to be withheld.

The first two elements appear met in this case. As for the first element, the documents are held by the county, which is a public entity. As for the second element, the FOIA defines "public record" as:

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.

The documents at issue clearly qualify as public records. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

a. Personnel-records exception.

The FOIA does not define "personnel records," but this office has consistently opined that this term encompasses all records other than employee evaluation and job performance records that pertain to individual employees. 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." The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," but the Arkansas Supreme Court, in Young v. Rice, 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. 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 custodian must determine whether that interest is outweighed by the public's interest in disclosure. The Arkansas Supreme Court has indicated that the public interest is measured by "the extent to which disclosure of the information sought would 'shed light on an agency's performance of its statutory duties' or otherwise let citizens know 'what their government is up to.'" If the public interest in this regard is substantial, it will usually outweigh any privacy interest.

b. Employee-evaluation exception.

The FOIA likewise does not define "employee evaluation or job performance records." But the Arkansas Supreme Court has recently adopted this office's view that the 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 definition encompasses, among other things, records of disciplinary action and letters detailing the reasons for disciplinary action. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two leading commentators on the FOIA, referring to 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.

III. Application.

We can now apply the foregoing to the documents you have attached. The first step, as noted above, is to categorize the documents. You have categorized these disciplinary records as employee-evaluation records. In my opinion, this is for the most part consistent with the FOIA, given that it appears the records were either created by supervisors or at the behest of supervisors to evaluate the employee or to report the disciplinary action and communicate to the employee the reasons for such action.

Additionally, however, it is my opinion that a portion of one of the documents likely constitutes the personnel record of its author, who is also a department employee. The document I am referring to is the narrative report of one of the matters that led to disciplinary action. I have confirmed your categorization of this report as an employee-evaluation record under the assumption that it was created at the direction of the author's supervisor for the purpose of evaluating the subject of the report. However, a portion of the report recounts a statement made by the subject regarding one of the author's family members. In my opinion, this portion is properly categorized as a personnel record of the author.

The next step is to apply the applicable test for disclosure of each of the records. With regard to the portion of the report that constitutes a personnel record, we must apply the above balancing test in order to determine whether release would constitute a "clearly unwarranted invasion of personal privacy." In this regard, I note that the author likely has a greater-than de minimus privacy interest in the information contained in this portion of the report. But the public interest is probably significant and in my opinion generally outweighs the privacy interest, with the exception of the actual name of the author's family member. I believe the public interest can be satisfied without reference to this name. Accordingly, it is my opinion that the family member's name should be redacted before this report is released.

Turning to the employee-evaluation records, you have stated: "It is my understanding that if the disciplinary action resulted in termination or suspension that the records pertaining to it are not an exemption to release [sic]." This statement fails to take into account the four elements set out above, each of which must be met before employee-evaluation records can be released. The fact of termination or suspension is not alone determinative. Based upon my review of the records involved, it is my determination that your decision to release them is consistent with the FOIA. But please be advised of the importance of properly applying the applicable test for the release of employee-related records.

To elaborate, in this particular instance, it seems clear the first three elements are met. As for the fourth, the "compelling interest" element, this office has consistently opined that, with respect to allegations of misconduct by law enforcement officers, a compelling public interest likely exists in information reflecting a violation of departmental rules aimed at conduct which could undermine the public trust and/or compromise public safety. Moreover, an enhanced interest in disclosure exists in instances of law enforcement misconduct in interactions with the public. Thus, while the existence of compelling public interest in the release of particular records is always a question of fact that must be determined in light of all the surrounding circumstances, I believe the records at hand reflect a degree of misconduct sufficient to generate a compelling public interest in disclosure.

I therefore conclude that with the exception of the one required redaction noted above, your decision to release these disciplinary records is consistent with the FOIA, although it appears you may not have properly analyzed the records under the applicable test for disclosure.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,
Attorney General
DM:EAW/cyh