Can an Arkansas sheriff issue a blanket denial of a FOIA request for records about an employee's alleged harassment, and does the employee's resignation unlock those records?

Plain-English summary

Bobby Walraven filed an Arkansas FOIA request with the Little River County Sheriff's Department for all records concerning alleged harassment of department employees by a former employee, including communications, complaints, images, and statements. The Sheriff denied the request, asserting that any responsive records were "exempt from the FOIA" under Ark. Code Ann. § 25-19-105(b)(12) and (c). Walraven asked the AG to review the denial, arguing that the response was overly broad, that redactions could allow release of statements, and that any investigation records should now be releasable because the subject employee had resigned.

Without seeing the actual records, AG Leslie Rutledge could not bless or reject any specific document. But she made three important points that constrain how sheriffs and other Arkansas custodians can respond to FOIA requests of this type:

1. Citing the exemption is enough, but explanation is wise. The FOIA itself does not require a custodian to explain the denial in detail, but the AG has long advised citing the specific exemption relied on. The Sheriff did cite (b)(12) and (c), so the denial met the bare minimum. As a practical matter, the custodian will need to explain the basis if a denial is appealed.

2. Blanket denials are generally inconsistent with the FOIA. Section 25-19-105(f)(2) requires that "any reasonably segregable portion of a record" be provided after deleting exempt information. The AG has consistently said a blanket "denied" response to employee-related records is ordinarily inconsistent with FOIA, citing Ops. 2010-152, 2007-258, 2001-130, 2000-232. The custodian must classify each record and apply the appropriate test, releasing segregable portions where possible.

3. Resignation does not unlock evaluation records. Walraven argued that because the alleged harasser had resigned, the investigation records were now subject to disclosure. The AG corrected this: the evaluation-records exemption in § 25-19-105(c)(1) requires suspension or termination (not resignation) as a threshold. Resignation does not satisfy that prong.

The AG also flagged that any third party identifiable in the records may have a constitutional privacy interest under McCambridge v. City of Little Rock, 298 Ark. 219 (1989), which can supersede FOIA's specific disclosure requirements.

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.

The Arkansas FOIA has been amended multiple times since 2016. Custodians today should verify the current text of § 25-19-105 and recent AG guidance before relying on the principles in this opinion.

Background and statutory framework

Arkansas FOIA creates a strong presumption of openness. A record must be released if (1) it is held by an entity subject to the act, (2) it qualifies as a public record under § 25-19-103(5)(A), and (3) no exemption applies. The Little River County Sheriff's Department is a public entity, and records of alleged harassment by a former employee qualify as public records under the definition.

The two relevant exemptions:

• Personnel records (§ 25-19-105(b)(12)): open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test.
• Employee evaluation or job performance records (§ 25-19-105(c)(1)): closed unless all four prongs are met (suspension or termination, final administrative resolution, the records as the basis for the discipline, and a compelling public interest).

Records generated by an internal investigation typically classify as evaluation records under Thomas v. Hall, 2012 Ark. 66.

The segregability rule

§ 25-19-105(f)(2) provides that any "reasonably segregable portion of a record" must be provided after deleting exempt information. The AG translates this into a hard rule: a blanket denial of a request for employee-related records is "ordinarily inconsistent with the FOIA." The custodian must:

1. Classify each record (personnel vs. evaluation vs. neither).
2. Apply the appropriate test to determine if the record (or parts) must be disclosed.
3. Release segregable portions after redacting exempt information.

Why resignation is not enough

Walraven's argument that "the investigation records must be disclosed because the subject has resigned" fails on the text of § 25-19-105(c)(1). The first prong of the four-prong evaluation-records test is whether the employee "was suspended or terminated." Resignation is neither. The AG has read this strictly across many opinions, because the exemption is designed to preserve the confidentiality of the evaluation process unless the employer took formal disciplinary action serious enough to suspend or terminate.

Constitutional privacy from McCambridge

Even when the FOIA's statutory disclosure requirements would order release, the Arkansas Supreme Court in McCambridge v. City of Little Rock, 298 Ark. 219 (1989), recognized that a constitutionally protected privacy interest can override FOIA. That is a fact-bound determination the custodian must make in the first instance, considering the particular circumstances. In a harassment-investigation context, complainants and other identifiable third parties may have such an interest.

Common questions

Q: My agency denied my entire FOIA request. Is that allowed?
A: Generally no. Under this opinion and § 25-19-105(f)(2), the custodian must classify records and release segregable portions. A flat "denied" response without further analysis is usually inconsistent with FOIA.

Q: Does the custodian have to explain the denial?
A: The FOIA itself does not require detailed explanation, but the AG has consistently said the specific exemption should be cited. As a practical matter, the custodian will likely need to explain the rationale when the denial is challenged.

Q: The employee I complained about just resigned. Can I get the investigation file now?
A: No. Under § 25-19-105(c)(1), the evaluation-records exemption stays in place unless the employee was suspended or terminated. Resignation alone does not satisfy that threshold.

Q: What about my own statement to the sheriff?
A: An employee-complaint record created on the complainant's own initiative is generally a personnel record (per Op. 2002-326), not an evaluation record. Personnel records are open subject to the Young v. Rice balancing test, so the complainant's own statement may be releasable if redacted properly.

Q: How do I challenge the sheriff's denial?
A: Under Ark. Code Ann. § 25-19-104 you can file a civil action in circuit court, or under § 25-19-107 you can pursue an expedited civil action. The AG opinion path under § 25-19-105(c)(3)(B)(i) is also available, as Walraven used here.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exemption
• Ark. Code Ann. § 25-19-105(c)(1), evaluation-records exemption
• Ark. Code Ann. § 25-19-105(f)(2), segregable-portion requirement
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG-opinion review process
• Ark. Code Ann. § 25-19-104, civil action to compel disclosure
• Ark. Code Ann. § 25-19-107, expedited civil action

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), personnel-records balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), burden on party resisting disclosure
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, evaluation-records definition
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), constitutional privacy can override FOIA

Source

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

Original opinion text

Opinion No. 2016-095
September 2, 2016
Mr. Bobby Walraven
114 Little River 725
Ashdown, AR 71822
Dear Mr. Walraven:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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)
(Supp. 2015). 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 you have submitted a FOIA request to the
Sheriff of Little River County for "records that pertain to the sexual harassment, or
any other kind of harassment, of employees of the Little River County Sheriff's
Department and of any other person" by a former employee of the Little River
County Sheriff's Department. You specified that the records should include all
communications, complaints, images, and statements. The sheriff has denied your
request, stating: "If any of these records pertaining to sexual harassment exist, they
are exempt from the [FOIA], covered under [Ark. Code Ann.] § 25-19-105(b)(12)
[and] (c)." You state that you were advised that "certain parties had provided
statements to the sheriff complaining about [the former employee]," but that the
statements "would be potentially embarrassing to the complaining parties if . . .
released."

You object to the sheriff's response, stating that it is "overly broad" and does not
sufficiently explain the reason given for not providing the records. You note that
"any such statements [by complaining parties] may have certain and limited
information redacted and still be in compliance with the FOIA." You also say that
records of any investigation regarding the matters complained of "are now subject
to disclosure since [the former employee] . . . has now resigned . . . ."

You have asked for an opinion regarding the custodian's decision to deny your
request.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. That determination depends upon the content of any records that are
responsive to your request and the proper application of the relevant FOIA test for
disclosure. Because I have not seen any records that may be at issue, I cannot
opine regarding the release of any particular records. I can, however, explain the
tests that apply to the types of records you are seeking. I can also make several
observations regarding your particular objections to the Sheriff's decision to deny
your request. I will make those observations and then proceed to a discussion of
the tests.

First, as two recognized commentators on the FOIA have observed, "nothing in
the FOIA itself requires an agency denying a request in whole or in part to explain
its decision," but "the Attorney General has opined that the exemption relied upon
as the basis for denying access should be provided." The correspondence you
provided to my office indicates that the Sheriff cited the FOIA exemptions for
personnel and employee evaluation records (discussed below) in denying your
records request. It appears that the FOIA does not itself require the Sheriff to
provide any further explanation. This office has previously observed, however,
that "as a practical matter this information will most likely have to be forthcoming
in the event of an appeal of the [agency's] decision."

Second, the FOIA requires that any "reasonably segregable portion of a record" be
provided after deleting exempt information. This means, as to employee-related
records (discussed below), that a blanket denial of access to such records is
ordinarily inconsistent with the FOIA. The custodian must instead apply the
applicable test and determine whether the records must be released after deleting
any exempt information. I cannot specifically opine in this regard as to the
records you have requested. I can only note that if the records contain exempt
information that can reasonably be segregated, then the record(s) must be provided
after the redactions are made.

Finally, regarding your statement that any investigation records must be disclosed
because the subject has resigned, the FOIA actually establishes a rule to the
contrary for any such records that qualify as employee evaluation records. As
explained further below, suspension or termination is a threshold requirement for
the release of those kinds of employee-related records.

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 Little River County Sheriff's Department
("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.

If the records you are seeking are kept by the Department, it seems clear, given
their subject matter (alleged harassment by a former employee), that they qualify
as "public records" under this definition. Accordingly, they must be disclosed
unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two kinds of employee-related
records: "personnel records" and "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 first of the two most relevant potential exceptions is the one for "personnel
records," which the FOIA does not define. But this office has consistently opined
that "personnel records" are 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."

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 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 minimis
privacy interest. If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. 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. The fact that
the subject of any such records may consider release of the records an unwarranted
invasion of personal privacy is irrelevant to the analysis because the test is
objective.

Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define. 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 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.

I have not seen any of the records that are responsive to your FOIA request and
therefore cannot address any specific records. I will note generally, however, that
most complaints against public employees are either the personnel records or the
employee evaluation records of the person being complained about; and
complaints by public employees are also usually the personnel records of the
complainants. Additionally, as indicated above, records generated as part of an
internal investigation typically are properly classified as employee evaluation
records.

The custodian must first apply the above definitions to any records that are
responsive to your request in order to properly classify the records, and then
determine whether, and to what extent, the records are subject to release based on
the appropriate test for disclosure.

You should also be aware that any party who is identifiable from any of the
requested records may have a constitutionally protected privacy interest in those
records. The Arkansas Supreme Court has recognized that the constitutional right
of privacy can supersede the specific disclosure requirements of the FOIA, at least
with regard to the release of documents containing constitutionally protectable
information. The question of whether information is protectable under the
constitutional right of privacy is one of fact that must be determined in the first
instance by the custodian of the records, on the basis of the particular facts of the
case.

Sincerely,

LESLIE RUTLEDGE
Attorney General