Can a city release a letter in a former police officer's personnel file in response to an Arkansas FOIA request despite his privacy objection?

Plain-English summary

The City of Cave Springs received an Arkansas FOIA request for the personnel file of a former city police officer. The records custodian, City Attorney Justin Eichmann, decided the entire file should be released. The former officer objected to one specific document, a March 1, 2007 letter, on the grounds that disclosing it would invade his personal privacy. Both the city and the former officer asked the AG to review the custodian's decision.

Attorney General Leslie Rutledge agreed with the custodian. She found the letter qualified as a personnel record (not an employee evaluation), and that even though the former officer had a moderate privacy interest in the personal information conveyed, the public interest in disclosure outweighed that interest because the letter explained that the personal information had affected his past law-enforcement employment and arguably should continue to do so.

Currency note

This opinion was issued in 2016. 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.

How the AG analyzed the disputed letter

Step 1: Personnel record or employee evaluation?
The AG concluded the letter was a personnel record, not an employee-evaluation record. Under Thomas v. Hall, an employee-evaluation record requires that the document be (1) created by or at the behest of the employer (2) to evaluate the employee (3) with respect to a specific incident. The disputed letter did not meet that test. Because it pertained to the former officer but did not qualify as an evaluation, it landed in the personnel-records category.

Step 2: Did the personnel-records balancing test require disclosure?
Personnel records are released unless disclosure would be "a clearly unwarranted invasion of personal privacy" under Ark. Code Ann. § 25-19-105(b)(12). The Arkansas Supreme Court's two-step Young v. Rice test asks first whether the information is personal or intimate enough to create a greater-than-de-minimis privacy interest, then weighs that interest against the public's interest in disclosure.

The AG found the former officer had at least a moderate privacy interest in the contents of the letter. But she found the public interest outweighed it because the letter explained that the personal information had affected his past employment as a law-enforcement officer and alleged that it should continue to do so. Citing Stilley v. McBride and Department of Defense v. FLRA, the AG noted that the public's interest is measured by the extent to which disclosure would "shed light on an agency's performance of its statutory duties or otherwise let citizens know 'what their government is up to.'"

The subject's view of privacy is not the test.
The AG's prior opinions have repeatedly held that an employee's own characterization of disclosure as an unwarranted invasion is irrelevant. The test is objective: the question is whether the public interest in seeing how government employment decisions were made outweighs the privacy interest in the specific information.

Background: a recurring AG framework

Arkansas's FOIA personnel-records framework has been built up through dozens of AG opinions. The repeated points:

• Personnel records are presumed disclosable; the burden falls on the person resisting disclosure.
• The exceptions are narrowly construed.
• Even where the public interest favors disclosure of the document as a whole, specific data points (Social Security numbers, dates of birth, banking information, home addresses, medical information) still get redacted.
• Allegations or complaints, even unsubstantiated ones, are generally subject to disclosure under the personnel-records balancing test once the document is otherwise disclosable.

This last point, footnoted in the opinion with a citation to Op. Att'y Gen. 2015-053, was the lever for the disclosure here. The fact that the letter touched on allegations that were later disputed did not flip the balance in favor of withholding.

Common questions

Can a former public employee block release of records by objecting?
No, not by objection alone. The Arkansas FOIA gives the records subject the right to ask for AG review of the custodian's decision, but the AG's analysis is objective and weighs the public interest against the privacy interest. A subject's discomfort with disclosure does not control the outcome.

Does this rule apply to current police officers too?
Yes, the same balancing test applies to current public employees, with the caveat that AR Code Ann. § 25-19-105(b)(10) separately exempts information identifying certain undercover officers, which has to be redacted before any release.

What is the difference between a "personnel record" and an "employee evaluation"?
Personnel records are essentially everything that pertains to an individual employee that is not specifically a job-performance evaluation: employment applications, payroll forms, recommendation letters, leave records, and the like. Employee evaluations are records created by the employer specifically to assess job performance. The two categories have very different disclosure tests. Evaluations are released only when there has been a suspension or termination, the discipline is final, the record formed a basis for the discipline, and the public has a compelling interest.

Source

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

Original opinion text

Opinion No. 2016-014
February 17, 2016
R. Justin Eichmann
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
City Attorney, City of Cave Springs
4710 S. Thompson St., Ste. 102
Springdale, Arkansas 72764
Dear Mr. Eichmann:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which 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 the City of Cave Springs has received an FOIA request from someone seeking the "personnel file of a former officer." Your correspondence indicates that the City claims that the FOIA requires the release of the entire file. But the subject of the records objects to the release of a single document in that file. The former officer asserts that the disclosure of the document, a letter dated March 1, 2007, "would constitute a clearly unwarranted invasion of [his] personal privacy." Both the City and the former officer have asked for my review of the City's decision to release the letter.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Based on the limited information conveyed to me, I take it that the custodian has determined (1) that the letter in question qualifies as a personnel record, and (2) that its disclosure would not be a clearly unwarranted invasion of the former officer's personal privacy. I believe both decisions are consistent with the FOIA.

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. Because the only issue in dispute here is whether an exception requires nondisclosure, I will limit my analysis to that element.

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 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.

Based on the limited information conveyed to me, it seems that the custodian has classified the letter in question as a "personnel record." While the FOIA does not define the term "personnel record," this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. 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."

In my opinion, the letter in question has been properly classified as a personnel record. This is because it clearly pertains to the former officer, and it does not qualify as an employee evaluation. An employee-evaluation record is a public record that was (1) created by or at the behest of the employer (2) to evaluate an employee (3) with respect to a specific incident. The letter in dispute does not meet any of these elements.

As a personnel record, the letter must be disclosed unless doing so "constitutes a clearly unwarranted invasion of personal privacy." While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," 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 test elaborated in 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, 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, the custodian must determine whether that interest is outweighed by the public's interest in disclosure. The public's 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.'" Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests.

In my opinion, the former officer has at least a moderate privacy interest in the information conveyed in the letter. This requires us to move to the balancing test's second prong and weigh that privacy interest against the public's interest in the letter. In my opinion, the public's interest outweighs the privacy interest. This is because, though the letter conveys personal information, the letter also explains that the information affected his past employment as a law-enforcement officer and alleges that it should continue to do so. This office has noted in an analogous context, that unsolicited complaints or allegations are subject to disclosure under the personnel-records balancing test, "even if the complaint or allegation is unsubstantiated or later determined to be unfounded." See Op. Att'y Gen. 2015-053.

Therefore, based on the information conveyed to me, it seems that the custodian has correctly determined that the letter must be disclosed because doing so would not amount to a clearly unwarranted invasion of personal privacy.

Sincerely,
LESLIE RUTLEDGE
Attorney General