Under Arkansas FOIA, which Little Rock Police Department personnel records (names, pay, addresses, dates of birth) can the public obtain?

Plain-English summary

The Little Rock Police Department received a sweeping FOIA request for personnel information on its officers: names, race, age, gender, home address, date of hire, promotions, pay and pay increases, plus personnel files of lieutenants and captains, the list of motorcycle patrol officers, and all promotions and demotions over the past two years. The department's records custodian decided most of the data was releasable but planned to redact home addresses, social security numbers, and dates of birth. The Little Rock FOP, on behalf of the officers, asked the Arkansas AG to review that decision.

AG Leslie Rutledge concluded the custodian's call was consistent with FOIA. Without seeing the actual records, she could not bless any specific document, but she confirmed the standard rules: in Arkansas, public employees' names, races, ages, genders, dates of hire, promotions, pay, and pay increases are personnel records that the public can see. Home addresses, social security numbers, and dates of birth must come out before release. Records that document promotions or demotions, however, can sometimes cross the line into employee-evaluation records, which are subject to a much stricter four-part test before they can be disclosed.

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 (with additional exemptions added for certain law-enforcement records and other categories), so a custodian deciding a similar request today should verify the current text of §§ 25-19-103 and 25-19-105 rather than rely on the 2016 framework alone.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., presumes public records are open. A document must be disclosed if (1) it is held by an entity subject to the act, (2) it constitutes a public record, and (3) no exception applies.

Two FOIA exceptions are most relevant to anything found in a personnel file: the "personnel records" exception under § 25-19-105(b)(12), and the "employee evaluation or job performance records" exception under § 25-19-105(c)(1). These are mutually exclusive categories with very different tests for release.

Personnel records test. Personnel records are open unless disclosure would constitute a "clearly unwarranted invasion of personal privacy." Under Young v. Rice, 308 Ark. 593 (1992), the custodian applies a two-step balancing test, with the thumb on the scale favoring disclosure: first, is the information personal or intimate enough to create more than a de minimis privacy interest? If so, does that interest outweigh the public's interest in disclosure? The party resisting disclosure bears the burden (Stilley v. McBride, 332 Ark. 306 (1998)).

Employee-evaluation test. Evaluation or job-performance records, as defined in Thomas v. Hall, 2012 Ark. 66, are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that detail performance or lack of performance on the job. These records can be released only if all four prongs are met: (a) the employee was suspended or terminated, (b) there has been a final administrative resolution, (c) the records formed the basis for the discipline, and (d) there is a "compelling public interest" in disclosure. If any prong fails, the records stay closed.

Items the AG identified as commonly releasable from a police personnel file at the time

• Names, race, age, gender
• Dates of hire
• Promotions, pay, and pay increases

Items the AG identified as commonly withheld or redacted

• Personal contact information including home address, personal phone, personal email (§ 25-19-105(b)(13))
• Date of birth
• Social security number
• Medical information
• Marital status and dependents
• Driver's license number
• Insurance coverage
• Tax withholding and payroll deductions
• Banking information
• Information identifying officers currently working undercover (§ 25-19-105(b)(10))

The wrinkle for promotion and demotion records

A bare list of who was promoted when is a personnel record. But a record explaining why a person was promoted or demoted (especially if a demotion led to suspension or termination) may be an evaluation record. Whether the four-prong test for releasing evaluation records is satisfied, and in particular whether there is a "compelling public interest" in the records, is always a fact question the custodian must answer in the first instance.

Common questions

Q: Can someone in Arkansas request the name and salary of every police officer in the state?
A: At the time of this opinion, yes, in concept, for any public agency subject to FOIA. Names, dates of hire, and salaries of public employees were treated as releasable personnel records. Volume, redaction, and fees are practical limits.

Q: Why are home addresses of officers redacted but salaries are not?
A: Salary is paid from public funds and carries a strong public interest in accountability that easily outweighs any privacy interest. Home address is a personal-safety concern (especially for law enforcement) and is specifically listed in § 25-19-105(b)(13) as withholdable.

Q: What is a "compelling public interest" in the evaluation-records test?
A: The AG quoted Watkins & Peltz: a general interest in how public employees perform is not enough (it is always present). What can rise to compelling is a link between a public controversy, the agency, and an employee who committed a serious breach of public trust, particularly a higher-ranking employee.

Q: Can an officer block release of his own personnel record?
A: No. The AG's opinion notes that whether the subject of the record considers release an unwarranted invasion of privacy is "irrelevant to the analysis because the test is objective." The custodian (and, on review, the AG and courts) decides under the Young v. Rice balancing test.

Q: What happens if the requester disagrees with the custodian's redactions?
A: § 25-19-105(c)(3)(B)(i) lets the requester, the subject of the records, or the custodian seek an AG opinion. That AG opinion is what the FOP did here. Beyond that, FOIA disputes can be litigated in Arkansas circuit court.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exception
• Ark. Code Ann. § 25-19-105(c)(1), employee-evaluation-records exception
• Ark. Code Ann. § 25-19-105(b)(13), personal contact information
• Ark. Code Ann. § 25-19-105(b)(10), undercover officer information
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG review of custodian decisions

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), the 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, definition of employee-evaluation records

Source

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

Original opinion text

Opinion No. 2016-101
October 11, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Detective Tommy Hudson, President
Little Rock Fraternal Order of Police Lodge # 17
P. O. Box 34351
Little Rock, AR 72203
Dear Detective Hudson:

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 a request has been made to the Little Rock
Police Department ("LRPD") for multiple items regarding LRPD employees. You
have received notice of the custodian of records' decision concerning the
following items that have been requested: personnel information, specifically,
name, race, age, gender, address, date of hire, promotion, pay, and pay increases; a
listing of command officers at the captain level and above with this same
personnel information; personnel files for those with the rank of lieutenant or
captain; a listing of motorcycle patrol officers; all promotions and demotions that
have occurred during the past two years.

The custodian of records has determined that the requested items are personnel
records that are subject to release under the FOIA, with the exception of your
home address, social security number, and date of birth. The custodian has also
determined that any performance evaluations or disciplinary actions are not
subject to release unless they formed the basis of a suspension or termination that
has reached final administrative resolution.

You have asked for my opinion regarding the custodian's decision.

RESPONSE

My statutory duty is to state whether the custodian's decision regarding the release
of personnel or employee evaluation records is consistent with the FOIA. That
determination depends upon the content of any records that are responsive to the
FOIA 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.

Based on the types of items requested, however, I can state that with the possible
exception of records of promotions or demotions, the custodian has properly
determined that records containing the requested information are personnel
records. The custodian has also properly determined that employees' names, race,
ages, gender, dates of hire, promotions, pay, and pay increases are releasable, but
that home addresses, social security numbers, and dates of birth are not releasable.

I can also address the general tests that apply to the release of records commonly
included in personnel files. Depending upon their content and the circumstances
surrounding their creation, records of promotions and demotions might be
properly classified as evaluation records, which are subject to a different test for
disclosure that includes (in the case of any demotions that led to suspension or
termination) a determination whether there is a compelling public interest in
disclosure.

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 LRPD, 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.

In my opinion, the information and records requested are public records under this
definition and must be disclosed unless some specific exception provides
otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts from public disclosure two groups of
items. 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 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. 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."

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.

Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. 2001-080);
• Dates of birth of public employees (Op. 2007-064);
• Social security numbers (Ops. 2006-035, 2003-153);
• Medical information (Op. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers (Op. 2007-025);
• Insurance coverage (Op. 2004-167);
• Tax information or withholding (Ops. 2005-194, 2003-385); and
• Payroll deductions (Op. 98-126); banking information (Op. 2005-194).

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.

Because I have not seen any of the records that may be responsive to the FOIA
request in this case, I cannot address any specific records. I can state, however,
that with the possible exception of promotion or demotion records, the custodian
has properly determined that records containing the items requested are personnel
records. Applying the above test for the release of such records, it is my opinion
that the custodian has properly decided to release employees' names, race, ages,
gender, dates of hire, promotions, pay, and pay increases. As indicated above,
home addresses, social security numbers, and dates of birth are not releasable.
Whether additional redactions are necessary will depend upon the content of the
particular records at issue, applying the above balancing test applicable to
personnel records.

With regard to records of promotions and demotions, such records might be
properly classified as evaluation records under the above definition. As explained
above, suspension or termination is a threshold requirement under the test for the
release of such records. Additionally, the test for the release of evaluation records
includes (in the case of any demotions that led to suspension or termination) a
determination whether there is a compelling public interest in disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General