Does the passage of 13 years dissipate the 'compelling public interest' element of the FOIA employee-evaluation test, so that internal-affairs records of a former Sherwood police officer can be withheld?

Plain-English summary

Stephen Cobb, the Sherwood City Attorney acting for the records custodian, asked the AG about a FOIA request for "any and all internal affairs investigations regarding Officer 'X' from January 2000 through December 2001." Officer X was a Sherwood police officer during that period; he was disciplined twice (9-day and 5-day suspensions); his employment with the City ended in 2002. By 2015, the records were 13 years old and Officer X had not been a City employee for 13 years. The custodian's specific question was whether the passage of time defeated the "compelling public interest" element of the FOIA employee-evaluation test.

The AG split the answer.

Yes, the passage of time can dissipate a compelling public interest. Op. 2006-026 had previously suggested that a 20-year-old record's age weighed against finding a compelling public interest. The Watkins and Peltz factors (nature of the infraction, existence of a public controversy, employee's position) all are affected by time. Public controversies fade. Conditions change. Administrations turn over. An old record may simply no longer "shed light on the activities of public officials" as required by § 25-19-102.

But age is not alone determinative. The AG identified factors that could revive interest in an old record:

• A subsequent event that generates fresh public interest. The AG cited Op. 2008-090, which found a current public interest in a nine-year-old police disciplinary record because the former employee was then running for county sheriff.
• A continuing public controversy connected to the agency or the underlying conduct.
• The high rank of the former employee within the agency.

The AG declined to make a final call for two reasons. First, the AG had not seen the actual records and could not test the custodian's classification. Second, the AG noted "there has been no actual final decision in this case," which prevented the AG from performing the statutory review.

The opinion gives custodians and requesters a framework for thinking about old records. The default is that the longer ago the events, the lighter the compelling-interest side of the scale. But specific facts can push the other direction: a former officer who later runs for elected office, a current controversy that connects back to old conduct, or a former senior official with continuing influence. Custodians have to weigh all those factors, not just the calendar.

Currency note

This opinion was issued in 2015. 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 FOIA employee-evaluation framework under § 25-19-105(c)(1) has four elements: suspension or termination, finality, the records formed a basis, and a compelling public interest. The first three are typically yes-or-no questions on the facts. The fourth is the most subjective and most often disputed.

The "compelling public interest" element is not defined by statute. Watkins and Peltz (5th ed., 2009) at pages 217-18 identify three factors derived from the AG's opinions:

1. Nature of the infraction (public-trust violation? gross incompetence?).
2. Existence of a public controversy connected to the agency.
3. Employee's position within the agency.

A "general interest in the performance of public employees" is not enough; the interest has to be specific to the conduct, the agency, and the employee. The treatise's framing helps custodians decide whether the interest reaches the "compelling" threshold.

The age-of-records dimension came up in Op. 2006-026 (20-year-old record weighed against compelling interest) and Op. 2008-090 (9-year-old record carried compelling interest because the former officer was running for sheriff). The current opinion synthesizes those points: age can dissipate the interest, but specific subsequent events can revive it.

The reference to § 25-19-102 grounds the analysis in the FOIA's stated purpose: ensuring that the public is "advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy." If a record no longer informs the public about current public officials or current decisions, the FOIA's purpose is less directly served by disclosure.

Common questions

Is there a bright line for how old records must be before the interest dissipates?
No. The AG explicitly said age is "not alone determinative." Each record requires individual analysis based on the full set of factors.

What kinds of subsequent events would revive interest in old records?
The leading example from Op. 2008-090 is the former officer running for elected office. Other examples might include a new controversy at the same department that connects to similar past conduct, or a public revelation that calls the original disposition into question.

Could the custodian have applied Young v. Rice instead?
No, that test applies to personnel records. The records in question were employee-evaluation records, subject to the four-element test. The Young v. Rice balancing is the test for personnel records, not for the compelling-interest element.

Did the AG say what to do with Officer X's records?
No definitive answer. The AG said the custodian had to weigh the factors against the specific circumstances and that the AG could not finalize the analysis without seeing the records and the final-decision facts.

Did the AG see the records?
No. The AG assumed for purposes of the opinion that the records were employee-evaluation records as the custodian had classified them.

Could a court overturn a custodian's compelling-interest decision?
Yes. Compelling public interest is a fact question, and final decisions are subject to judicial review. The AG's opinion is advisory and persuasive, not binding.

Source

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

Original opinion text

Opinion No. 2015-049
May 7, 2015

Stephen R. Cobb
Sherwood City Attorney
2201 East Kiehl Avenue
Post Office Box 6256

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Sherwood, Arkansas 72124-6256

Dear Mr. Cobb:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Repl. 2014). 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 indicates that the City of Sherwood ("City") has received a FOIA request for "any and all internal affairs investigations regarding Officer 'X' from January 2000 through December 2001." You report that Officer "X" was a police officer employed by the City during that time frame, that his employment ended in 2002, and that he was disciplined on two occasions, resulting in 9-day and 5-day suspensions. You then state:

In review of the FOI section specifically (c)(1), it appears disclosure of the records would be proper since they are a final administrative resolution in which there was a suspension. It is the second prong of that section that is the basis of my request. Given the fact that Officer "X" has not been an employee of the City for 13 years and the fact that the records requested are likewise that old, does this arise to "a compelling public interest in their disclosure?"

RESPONSE

It is my statutory duty to review the custodian's decision as to whether personnel or employee-evaluation records are exempt from disclosure under the FOIA. It appears from the question set out above that you have determined the records at issue in this case are employee-evaluation records. I have not seen the records and therefore cannot test that determination. But I will assume for purposes of this opinion that the records in fact constitute employee-evaluation records under the established definition of that category of employee-related records.

It further appears that you believe a final decision regarding the records' release turns on the last element in the test for the release of employee-evaluation records. Again, although I have not seen the records or been provided with all the surrounding facts, I will assume this is accurate.

Turning then to your specific question, it is my opinion that a compelling public interest in disclosure of public records can dissipate over time. But the passage of time is not alone determinative. In other words, the passage of time may or may not be a sufficient basis to determine whether there is a compelling public interest in the disclosure of employee-evaluation records, depending upon what other facts are developed with respect to the former employee's suspension(s). I lack sufficient information to further address the particular matter at hand, and cannot perform my statutory duty in any event because it seems there has been no actual final decision in this case. I am limited under these circumstances to a general discussion of the relevant legal test for the records' disclosure.

DISCUSSION

Employee evaluation or job performance records cannot be released under the FOIA 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).

Your request for my opinion focuses on the final prong. The FOIA does not define 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.

The existence of a compelling public interest is always a question of fact that must be determined, in the first instance, by the custodian after weighing the above factors. In my opinion, these factors can be impacted by the passage of time. Indeed, this office has previously recognized that the age of a record is a fact that potentially weighs against the finding of a compelling public interest. See Op. Att'y Gen. 2006-026 (suggesting that the age of a 20-year-old record weighed against finding a compelling public interest). The fact that the subject of the record(s) has not been an employee for some period of time probably also factors into the analysis. But neither of these facts is dispositive. Rather, consideration must be given to all the circumstances surrounding the content of the document(s) and the agency, with an eye toward the FOIA's purpose to ensure that the public is "advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy."

Bearing in mind this purpose, it may well be that conditions have changed to such an extent that the records no longer shed any appreciable light on the activities of the public officials involved. This might follow, for instance, from a change in administration, perhaps coupled with the fact that the individual is no longer employed. Or there may be some other information showing that due to the passage of time, any public controversy surrounding the problem that led to the suspension has diminished.

On the other hand, subsequent events could conceivably generate current public interest in records that would not otherwise be of public concern. See, e.g., Op. Att'y Gen. 2008-090 (recognizing a current public interest in a nine-year-old police disciplinary record owing to the former employee's candidacy for county sheriff).

In sum, the passage of time may or may not be a sufficient basis to determine whether there is a compelling public interest in the disclosure of the employee-evaluation records in question, depending upon what other facts are developed with respect to the former employee's suspension(s). The passage of time may well be relevant to the analysis, but sufficient information must be developed to determine the appropriate balance of the above factors under all the particular circumstances.

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

Sincerely,

LESLIE RUTLEDGE
LR/EAW:cyh