Can the Arkansas State Police release the internal-affairs investigation file of a former recruit when the events are 15 years old?

Plain-English summary

A FOIA requester asked the Arkansas State Police for records relating to an internal-affairs investigation of a former employee. The custodian planned to disclose the records with some redactions. The subject of the investigation (Boyce Hamlet) invoked his statutory right under § 25-19-105(c)(3)(B)(i) to ask the AG to review whether disclosure would be consistent with the FOIA.

The AG concluded it would not.

The records qualified as "employee-evaluation records" under the test the Arkansas Supreme Court set out in Thomas v. Hall (2012): 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. Internal-affairs investigations generally fit that test.

Under Ark. Code Ann. § 25-19-105(c)(1), employee-evaluation records can be disclosed only when four conditions are met: the employee was suspended or terminated, there has been a final administrative resolution of the proceeding, the records formed a basis for that decision, and there is a "compelling public interest" in disclosure.

Three of the four were met. The former employee was terminated. The termination had been final for about 15 years. The records formed a basis for the termination decision. The fourth, the compelling-public-interest element, was where the AG departed from the custodian. Three factors pushed against finding compelling interest:

• The former employee was very low-ranking (a recruit). He was not yet a certified law enforcement officer, so the usual presumption favoring compelling interest in law-enforcement records did not apply at full strength.
• The infraction did not involve misuse of state money or resources, and did not involve interactions with the public.
• Fifteen years had passed since the events, significantly eroding whatever public interest there may once have been. The AG was careful to say passage of time alone is rarely dispositive, but here the combination of factors mattered.

None of these factors alone was dispositive. Their cumulative effect was. The AG concluded that release would not be consistent with the FOIA and that the custodian's decision to disclose was therefore inconsistent with the act.

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

Arkansas FOIA distinguishes two kinds of personnel-file material:

• Personnel records (§ 25-19-105(b)(12)): records about an employee that are not evaluation records. Released unless disclosure would be a "clearly unwarranted invasion of personal privacy" (Young v. Rice balancing test).
• Employee-evaluation or job-performance records (§ 25-19-105(c)(1)): the more protective category. Released only when all four conditions in subsection (c)(1) are met.

The Arkansas Supreme Court held in Thomas v. Hall that internal-affairs investigation records, when they detail employee performance, qualify as employee-evaluation records. That category triggers the four-element disclosure test.

The "compelling public interest" element of subsection (c)(1) is not statutorily defined. Watkins & Peltz's treatise (THE ARKANSAS FREEDOM OF INFORMATION ACT, 5th ed. 2009) suggests three factors:

1. The nature of the infraction (with weight to violations of public trust or gross incompetence).
2. The existence of a public controversy related to the agency.
3. The employee's position within the agency.

The position factor matters because public interest is "more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue." The general interest in public-employee performance, standing alone, is not compelling because it is theoretically always present.

For law-enforcement officials, there is a special presumption: the public has a heightened interest in their performance because of their position of public trust. The AG noted that this presumption applies at full strength only to certified officers, not to recruits.

Common questions

Why does it matter that the former employee was a recruit?

Recruits are not yet certified law-enforcement officers. The usual heightened presumption of compelling interest in law-enforcement records is grounded in the public trust officers hold and the powers they exercise. A recruit does not carry that same level of public trust, so the presumption applies with less force.

Doesn't the public have a compelling interest in any police misconduct?

Not as a matter of law. The "compelling" interest standard is more demanding than mere public curiosity. The Watkins & Peltz factors require something specific (nature of the infraction, public controversy, position) rather than a general interest in seeing all police records.

Could the result have been different if the events were recent?

Possibly. The AG explicitly weighted the 15-year passage of time as one factor among several. Recent events involving the same kind of conduct might still have failed the test on the position-and-nature factors alone, but the time-passage point would not have cut against release.

What happens to the requester now?

The AG's opinion is not self-executing. The custodian can still release the records if it believes the AG is wrong, in which case the subject can sue for an injunction. Or the requester can sue to compel disclosure. The AG opinion is persuasive but not binding in court.

Does this protect the employee's identity even from journalists?

In practice, this opinion protected the file. The records themselves were not released by ASP. A journalist or other requester would have to seek the same records again and either accept the custodian's denial or sue.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review channel for personnel/evaluation records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records four-element test)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)
• Watkins & Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89, 216-18 (Arkansas Law Press, 5th ed., 2009)
• Op. Att'y Gen. Nos. 2015-077, 2015-049 (internal-affairs records as employee-evaluation records)
• Op. Att'y Gen. 2008-065 (compelling public interest factors)

Source

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

Original opinion text

Opinion No. 2015-108
August 31, 2015
Mr. Bill Sadler
Public Information Officer
Arkansas State Police
One State Police Plaza Drive
Little Rock, Arkansas 72209
Dear Mr. Sadler:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

I am writing in response to a request for my review of the record custodian's decision regarding a records request under the Arkansas Freedom of Information Act (FOIA). The request for my review, which is from the subject of the records, 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.

It is my understanding that someone has requested a copy of records relating to an internal-affairs investigation of a former Arkansas State Police employee. It is also my understanding that the custodian at Arkansas State Police intends to disclose these records after making some unspecified redactions. The FOIA requires me to render my opinion on whether this decision is consistent with the FOIA.

RESPONSE

Having reviewed the records at issue, it is my opinion (1) that the attached records are the former employee's employee-evaluation records; and (2) that the custodian's decision to disclose the records is not consistent with the FOIA because (for reasons explained below) there is no compelling interest in the disclosure of the records.

DISCUSSION

I. General Rules 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. Because only the third element is in question here, I will focus my analysis solely on that point.

Under certain conditions, the FOIA exempts two types of records 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 tests for whether these two types of documents may be released differ 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.

In the current matter, the relevant exception is for "employee evaluation or job performance records," which the FOIA does not define. But the Arkansas Supreme Court has held 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 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.

II. Application

We are now in a position to apply the foregoing rules to the documents at issue. The first step is to classify the documents. All the records are clearly the former employee's employee-evaluation records because they were created by the employer to evaluate an allegation about the former employee's conduct. Records created as part of an internal-affairs investigation are properly classified as employee-evaluation records.

The attached records clearly indicate that the former was terminated (thus meeting element (1)); that termination has been final for about 15 years (thus meeting element (2)); and that the records clearly formed a basis for the termination (thus meeting element (3)). Thus, the only question regarding whether these records should be disclosed is whether there is a compelling public interest in their disclosure.

In my opinion, after applying the factors outlined above, the public does not have a compelling interest in these documents. There are several bases that jointly establish this conclusion:

• The former employee's position at the time of the infraction was very low ranking (i.e. a recruit). The fact that the former employee was not yet a certified law enforcement officer also means that the usual presumption in favor of finding a compelling interest does not apply to these records.

• The infraction that lead to the subject's termination did not involve (a) misuse of state money or resources, or (b) interactions with the public.

• Further, to the extent that there was serious breach of public trust, the significant passage of time since the breach (i.e. 15 years) reduces any interest that may have existed in these records. In general, and given the circumstances, the passage of time can reduce the extent to which there is a compelling public interest. I hasten to add, however, that the passage of time, by itself, is seldom a sufficient basis to find that no compelling public interest exists. But given the nature of the infraction reflected in these records and the low-level ranking of the subject at the time of the infraction, I believe that, to the extent there ever was a compelling interest, that interest has significantly degraded over time to be less than compelling now.

Any one of these factors, when considered individually, is not dispositive. But the factors, when considered together, have a cumulative effect indicating that the public lacks a compelling interest in the records. This means that the final element for the release of employee-evaluation records has not been met in this case. Therefore, in my opinion, the custodian's decision to disclose the internal-affairs file is not consistent with the FOIA.

Sincerely,
Leslie Rutledge
Attorney General

LR:cyh