Can Arkansas release citizen complaints about an Alcoholic Beverage Control enforcement agent under FOIA, even if the agent objects?

Plain-English summary

A FOIA request to the Arkansas Department of Finance and Administration (DF&A) sought "complaints made since March 2015 about ABC Enforcement Agents." The custodian determined the records were personnel records that should be released. Aaron D. Farmer, an agent in the Alcoholic Beverage Control Enforcement Division and the subject of (or one of the subjects of) those complaints, objected. He invoked his statutory right under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask the Attorney General whether the custodian's release decision was consistent with the FOIA.

Attorney General Leslie Rutledge confirmed that it was. The records were properly classified as personnel records (as opposed to employee evaluation/job performance records), because they were unsolicited citizen complaints, which the AG's office has long treated as falling on the personnel-records side of the FOIA divide. Personnel records are presumptively open under FOIA unless release would be a "clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12).

The Arkansas Supreme Court's two-step balancing test from Young v. Rice (1992) governs that analysis. Step one asks whether the records contain information of a "personal or intimate nature" creating a more-than-de-minimis privacy interest. Step two, if that threshold is met, weighs the privacy interest against the public's interest in disclosure, with the scale tipped in favor of disclosure.

Applying that test to the records before her, the AG concluded the public's interest in disclosure outweighed the agent's privacy interest. Citizen complaints about how a state law enforcement officer is performing his duties shed light on agency performance, the core public interest the FOIA protects. The custodian's decision to release was therefore consistent with the FOIA.

Currency note

This opinion was issued in 2017. 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

Q: What is the difference between "personnel records" and "employee evaluation records" under Arkansas FOIA?
A: The two FOIA exemptions cover overlapping but distinct categories. "Employee evaluation or job performance records" are records created by the employer to evaluate an employee, like supervisor evaluations, internal investigation reports, and disciplinary findings. "Personnel records" is the residual category: everything else in a personnel file that is about an individual employee, including unsolicited citizen complaints. The AG's office has consistently classified citizen complaints as personnel records, not evaluation records.

Q: Why does the classification matter?
A: Different release standards. Employee evaluation records under § 25-19-105(c)(1) are released only after final administrative resolution of a suspension or termination proceeding where the records were the basis for the decision, and only if there is a "compelling public interest" in disclosure. Personnel records under § 25-19-105(b)(12) are presumptively open unless release would be a "clearly unwarranted invasion of personal privacy." The personnel-records standard tilts much more strongly toward disclosure.

Q: What is the Young v. Rice balancing test?
A: It is a two-step inquiry the Arkansas Supreme Court adopted in 1992. First, the custodian asks whether the information is of a "personal or intimate nature" creating a privacy interest greater than de minimis. If the privacy interest is only de minimis, the thumb on the scale toward disclosure outweighs it and the records are released. Second, if the privacy interest is substantial, the custodian weighs it against the public's interest in disclosure, measured by whether release would "shed light on an agency's performance of its statutory duties or otherwise let citizens know 'what their government is up to.'" The burden is on the person resisting disclosure.

Q: Why didn't the agent's objection carry weight?
A: Two reasons. First, the Young v. Rice test is "objective": the subject's view of whether release is invasive is "irrelevant to the analysis." Second, the records were citizen complaints about an officer's job performance, the kind of information that goes to the core of public-interest oversight of government. That public interest readily outweighed the agent's personal interest in keeping the complaints private.

Q: What about the underlying privacy of the complainants?
A: The opinion does not address it directly. In other AG opinions, custodians sometimes redact information that would identify a private complainant. Whether that was needed here would have depended on the content of the specific records. The AG's role under § 25-19-105(c)(3)(B)(i) is to assess the custodian's decision, not to second-guess specific redactions absent objection.

Q: Who can request an AG opinion under § 25-19-105(c)(3)(B)(i)?
A: The custodian, the requester, or the subject of the personnel or employee evaluation records. All three have standing to ask whether the custodian's release decision is consistent with the FOIA. The opinion is not binding on a court, but it is highly persuasive and routinely cited by agencies, courts, and FOIA practitioners.

Background and statutory framework

The Arkansas FOIA establishes a presumption that public records "shall be presumed to be public records" (Ark. Code Ann. § 25-19-103(7)(A)). The two FOIA exemptions for personnel-related records were designed to balance that presumption against legitimate employee-privacy concerns, but the legislature kept the categories narrow and the disclosure standards demanding.

The personnel-records exemption requires "clearly unwarranted invasion of personal privacy" before withholding, language the Arkansas Supreme Court has interpreted strictly. Young v. Rice set the analytical framework: a two-step test that treats the privacy claim with skepticism unless the information is genuinely personal or intimate, and even then weighs it against the public's interest in agency accountability. Stilley v. McBride (1998) confirmed that the public-interest measure is whether disclosure shows "what their government is up to," language the Arkansas court borrowed from federal FOIA case law (Department of Defense v. FLRA).

Citizen complaints about state employees, especially law enforcement officers, sit close to the heart of that public-interest concept. Multiple AG opinions over decades have treated such complaints as personnel records and concluded that the Young v. Rice balance generally favors release.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Ark. Supreme Court, two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Ark. Supreme Court, public-interest measure)
• Department of Defense v. FLRA, 510 U.S. 487 (1994) (U.S. Supreme Court, source of "what their government is up to" formulation)

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Ark. Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2017-053
May 8, 2017

Aaron D. Farmer, Agent
ABC Enforcement Division

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Department of Finance & Administration
1509 West 7th Street, Suite 403
Little Rock, AR 72201

Dear Mr. Farmer:

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 someone has requested copies of all "complaints made since March 2015 about ABC Enforcement Agents to the Department of Finance & Administration and the Alcoholic Beverage Control Division (Administration and Enforcement)." The custodian of records has determined that the requested documents are personnel records that should be released in compliance with the request. You object to the release of these records and ask whether the custodian's decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion based on the limited information before me that they have been properly classified as personnel records and that the custodian's decision to release them is consistent with the FOIA. I will set out all the definitions and standards and then apply them to the records you attached.

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 Arkansas Department of Finance and Administration ("DF&A"), which is a public entity. As for the second element, the FOIA defines "public record" as:

[W]ritings, 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.

All the documents you have attached to your request appear to reflect your job performance. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

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 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.

Based on the limited information presented to me, it seems that the custodian has classified the records in question as "personnel records." 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 a question of fact that can only be determined by reviewing the record itself, and by taking into account the particular surrounding circumstances.

In this instance, it is my opinion that the requested records have been properly classified as personnel records, as it appears from the face of the records that they are unsolicited citizen complaints. It has long been this office's view that such complaints qualify as personnel records. And I have no information regarding these particular records' creation that leads me to question their classification as anything other than personnel records. I will therefore limit my analysis to the test for release of personnel records.

Under the FOIA, personnel records must be disclosed unless doing so "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 the scale tipped in favor of 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. 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. 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.

III. Application.

As stated above, the records at issue have been properly classified as personnel records. As such, they must be disclosed unless to do so would constitute a clearly unwarranted invasion of your personal privacy. Judging from the face of the records, and applying the Young v. Rice balancing test above, it is my opinion that the public's interest in the records' disclosure outweighs your personal privacy interest in this instance. Therefore, in my opinion, the custodian's decision to release these records is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General