Are records of police internal-affairs investigations that led to suspension of currently employed officers subject to release under the Arkansas FOIA?

Plain-English summary

Stephen Cobb, the city attorney for Sherwood, asked the AG to review the custodian's decision to release internal-affairs records for 16 currently employed Sherwood Police Department officers. A FOIA requester had asked for documentation of any officer's involvement in internal-affairs actions. The custodian determined that about 16 currently employed officers had been suspended as a result of internal-affairs investigations, classified the resulting records as employee-evaluation records, and decided they had to be disclosed. Six of the 16 officers objected, saying the disclosure would be invasive and professionally damaging.

The AG, without seeing the specific records, gave a general answer: the custodian's classification and release decision were consistent with the FOIA.

The AG's analysis followed the standard three-element FOIA test (entity subject to act, public record, no exception), then walked through the employee-evaluation exception's four-part disclosure test:

1. Suspension or termination. Met for the 16 suspended officers.
2. Finality. Met because the custodian represented that the decisions were final.
3. Basis. Met because the records formed the basis for the suspensions.
4. Compelling public interest. Met because, as the AG had consistently opined, the public has a special and weighty interest in the job performance of law-enforcement officials due to their unique position of public trust.

The opinion noted two doctrinal points. First, internal-affairs investigation records are properly classified as employee-evaluation records (citing Thomas v. Hall and Op. 2015-034). Second, even when a record as a whole meets the disclosure test, it may contain discrete pieces of information that must be redacted, and the opinion referred the custodian to Op. 2015-057 for a list of common redactions.

The four-factor "compelling public interest" framework came from Watkins and Peltz's treatise on the Arkansas FOIA: (a) the nature of the infraction (with weight to violations of the public trust or gross incompetence), (b) the existence of a public controversy related to the agency and its employees, and (c) the employee's position within the agency. The AG quoted the treatise's observation that a general interest in employee performance is not enough, but that a link between a controversy, an agency, and an employee who has committed a serious breach of public trust does satisfy the compelling-interest prong.

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.

Common questions

Who can ask the AG for a FOIA opinion?

Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the records custodian, the requester, or the subject of personnel or employee-evaluation records can seek an opinion from the AG about whether the custodian's decision is consistent with the FOIA. The AG's opinion does not bind the parties; it is advisory and persuasive only.

Are internal-affairs records "employee-evaluation records"?

Per Thomas v. Hall, an employee-evaluation record is a record (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 on the job. Internal-affairs investigations of police officers fit this definition because the department creates them to investigate allegations of misconduct, and they detail the officer's job performance. This office had consistently classified internal-affairs records as employee-evaluation records.

What four conditions must be met to release employee-evaluation records?

(1) The employee was suspended or terminated. (2) There has been a final administrative resolution of the suspension or termination proceeding. (3) The records in question formed a basis for the decision to suspend or terminate. (4) The public has a compelling interest in disclosure.

Why is a "compelling public interest" usually met for police officers?

Because law enforcement officers exercise unique authority over the public (arrest, use of force, custody), so the public has a special interest in knowing how that authority has been exercised and how the department responds to misconduct. The AG had consistently opined this, citing earlier opinions including Op. 2010-055. The treatise on the Arkansas FOIA also lists "the employee's position within the agency" as a relevant factor.

Can an employee block disclosure by objecting?

No. The test is objective. The subject employee's view that disclosure would be unwarranted is irrelevant to the FOIA analysis. The 16 Sherwood officers' objection did not change the legal result.

Are any parts of the released record still protected?

Yes. Even when a record as a whole meets the disclosure test, discrete pieces (dates of birth, Social Security numbers, medical information, driver's license numbers, undercover-officer identifiers, home addresses, payroll information, etc.) must be redacted. The opinion pointed the custodian to Op. 2015-057 for a representative redaction list.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., is structured around two main exceptions for personnel-related records: the personnel-records exception in § 25-19-105(b)(12) and the employee-evaluation exception in § 25-19-105(c)(1). The two exceptions have very different release tests.

Personnel records (the catch-all category, undefined by statute but interpreted as records that pertain to individual employees and aren't employee-evaluation records) are open to inspection except to the extent disclosure would be a "clearly unwarranted invasion of personal privacy," as analyzed under the Young v. Rice balancing test.

Employee-evaluation records (defined in Thomas v. Hall) are subject to the four-part test above. The "compelling public interest" prong is undefined by statute, and Watkins and Peltz's treatise has provided the de facto framework that AG opinions consistently apply.

The opinion explicitly stated that this office cannot opine about specific records it has not seen, and that this opinion addresses the general framework for internal-affairs investigations of police officers, with the caveat that any individual record's release also requires the appropriate redactions.

Citations

• Ark. Code Ann. § 25-19-103(5)(A) (Repl. 2014)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2015-034
• Op. Att'y Gen. 2015-057
• Op. Att'y Gen. 2010-055
• Op. Att'y Gen. 2010-078
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act 217-18 (Arkansas Law Press, 5th ed., 2009)

Source

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

Original opinion text

Opinion No. 2015-077
July 9, 2015

Stephen R. Cobb
City Attorney, Sherwood
7506 Highway 107
Sherwood, Arkansas 72120

Dear Mr. Cobb:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

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 Ark. Code Ann. § 25-19-105(c)(3)(B)(i). 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 made a FOIA request to the Sherwood Police Department. The requester seeks, among other things, "access to documentation of any officer employed by the Sherwood Police Department regarding any and all actions involving Internal Affairs. This request includes but is not limited to the following individual [sic]: all currently employed Sherwood Police Department officers." You report that "the custodian has determined that approximately 16 officers that are still employed with the City have received some type of suspension as a result of internal affairs investigations." You further report (1) that the custodian has classified the "internal investigation reports" as employee-evaluation records and (2) that the custodian has determined that the records must be disclosed. Six of the 16 officers have objected to the disclosure of these records because, you say, they believe that "this FOI request is invasive … and will be damaging to them professionally if any of this information is disclosed." You ask, on behalf of the custodian, whether (in light of the employees' objections) the custodian's decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not been provided with any of the specific records at issue, I cannot opine about the disclosure of specific records. Instead, I can opine more generally about the classification and disclosure of records generated by an internal affairs investigation of a police officer. As explained more fully below, it is my opinion that the kinds of records at issue here are properly classified as employee-evaluation records and that they must be disclosed.

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

The first two elements are clearly met in this case. As for the first element, the documents are held by Sherwood Police Department, 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.

This office has consistently opined that records of an internal affairs investigation qualify as public records because the records reflect the performance of the official functions of both the department and the officer(s) being investigated. Therefore, the records at issue here must be disclosed unless a specific exception provides otherwise.

The relevant exception is the one for employee evaluations. When determining whether the employee-evaluation exception requires certain records to be withheld from disclosure, custodians must make two separate determinations. First, they must determine whether the record meets the definition of an employee-evaluation record: namely, a record created by or at the behest of the employer to evaluate the employee. This office has consistently opined that records created during an internal-affairs investigation of a police officer qualify as the officer's employee evaluations.

Having addressed the classification question, a custodian must move to the second question — whether the test for employee-evaluations records requires disclosure. Employee evaluations cannot be disclosed 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.

The custodian has determined that the foregoing four-part test requires the release of the internal-affairs records. Because I have not seen the specific records at issue, I cannot say whether this decision is correct regarding any specific record. But I can say that this decision is usually the correct one regarding internal-affairs investigations generally. The custodian has determined that the records formed the basis for the final suspension of the six officers who object to disclosure. Thus, Elements 1, 2, and 3 appear met. The custodian is also most likely correct in determining that Element 4 — i.e. the compelling public-interest prong — is met. This is because, as this office has consistently opined, the public has a special and weighty interest in the job performance of law-enforcement officials due to their unique position of public trust. Therefore, in my opinion, the test for the disclosure of internal-affairs investigations is met under these circumstances.

[Footnote: The custodian should be aware that even if a record, when considered as a whole, meets the test for disclosure, the record may contain discrete pieces of information that have to be redacted. Please consult Opinion No. 2015-057, which provides a representative sampling of common redactions.]

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/RO:cyh