Under the Arkansas FOIA, what records can a Little Rock police officer get from the city's investigation file on a complaint they filed against a superior, when no discipline resulted?

Plain-English summary

A Little Rock Police Department officer filed two complaints in August and December 2016 against a superior, and after an internal investigation no discipline was imposed. The officer who filed the complaints later requested "the file" under the Arkansas FOIA. Little Rock's HR department asked the AG whether its release plan was correct.

The AG mostly agreed with the custodian, but flagged one record that had to be withheld. The analysis turned on two distinctions:

Personnel record vs. employee-evaluation record. The original complaint, written by the complaining officer rather than at the city's instigation, is a personnel record of both employees: the complaining officer and the officer being complained about. Personnel records are released to their subjects under § 25-19-105(c)(2), so the original complaint had to be turned over to the requesting officer.

Employee-evaluation records when no discipline followed. The bulk of the file (witness statements, transcribed interviews, internal memos, and a May 4, 2017 letter to the subject of the complaint) was created by the city as part of its investigation, which makes those records employee-evaluation records of the officer who was investigated. Under the four-prong test in § 25-19-105(c)(1), employee-evaluation records can be released only if the employee was suspended or terminated. Because the subject of the complaint was not disciplined, the "level of discipline" prong failed, and those records had to remain confidential. The city was planning to release a May 4, 2017 letter to the subject; the AG concluded that letter was an employee-evaluation record and could not be released either.

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.

Historical context: who owns a workplace complaint?

A small but important strand of Arkansas FOIA practice draws a hard line between records the employer creates "by or at the behest of" itself, on the one hand, and records that an aggrieved employee creates and then submits, on the other. The Thomas v. Hall (2012) test for employee-evaluation records turns on the records being created by the employer. A complaint authored by an employee and forwarded to HR does not satisfy that requirement. AG opinions stretching back to Op. Att'y Gen. 2002-326 had treated such complaints as personnel records of the employee being complained about (and, in this opinion, also of the complaining employee).

The two categories carry different release tests. Personnel records are released unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice (1992) balancing test. Employee-evaluation records, by contrast, are withholdable unless all four of the § 25-19-105(c)(1) prongs are met (level of discipline, finality, basis, compelling public interest).

Common questions

Why is the original complaint considered both employees' personnel record?

Because the document records information about both: the conduct allegedly committed by the officer being complained about, and the actions and statements of the officer who filed the complaint. Op. Att'y Gen. 2012-074 had collected the rule that an employee-generated complaint is the personnel record of the subject; the present opinion adds that it is also the personnel record of the author. Either way, both individuals can request a copy of their own personnel record under § 25-19-105(c)(2).

Why couldn't the rest of the investigation file be released?

Because the investigation produced no suspension or termination. The four-prong test for employee-evaluation records requires (1) suspension or termination, (2) a final administrative resolution, (3) records that formed the basis of the discipline, and (4) compelling public interest. With no discipline imposed, the first prong was not met, and the rest of the analysis did not need to run.

What's the policy reason for keeping investigation files confidential when no discipline followed?

The opinion (and the Watkins commentary it cites) treats this as preserving the confidentiality of the formal job-evaluation process to promote honest exchanges in the employee/employer relationship. Employees would be reluctant to participate candidly in interviews or write candid memos if every uncorroborated allegation became public.

What information has to be redacted from a personnel record before release?

The opinion lists the categories: personal contact information, marital status and dependents, dates of birth, social security numbers, medical information, identifiers for currently undercover law-enforcement officers, driver's license numbers, insurance coverage, tax/withholding information, payroll deductions, and banking details. These are based on a combination of statutory provisions and prior AG opinions covering each category.

Could the requesting employee challenge the AG's view?

Yes. AG opinions are not binding. The FOIA's enforcement provisions allow the requester to (a) ask the county prosecutor to bring a criminal complaint or (b) file a civil action in circuit court. The trial court would resolve any disputed factual questions and would not be bound to follow the AG's reading.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public record")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifiers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records four-prong test)
• Ark. Code Ann. § 25-19-105(c)(2) (employee right to own personnel record)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject AG opinion request)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (clearly-unwarranted-invasion balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting disclosure)
• Op. Att'y Gen. 2012-074 (employee-generated complaint as personnel record)
• Op. Att'y Gen. 2002-326 (same)

Source

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

Original opinion text

Opinion No. 2017-057
May 12, 2017

Shella Atlas Evans, Ed.D
Labor & Employee Relations Manager
City of Little Rock Human Resources Department
[address redacted]
Little Rock, AR 72201

Dear Ms. Evans:

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 Little Rock Police Department employee has requested "the file" regarding that employee's complaint, made through the Little Rock Department of Human Resources, against a superior on August 12, 2016, and December 27, 2016. You have provided the documents at issue, which include written statements and transcriptions of tape-recorded statements provided by the complaining employee, the subject of the complaint, and witnesses; as well as memoranda, letters, emails, and other documents relating to the investigation into the complaint. It is my understanding that no disciplinary action was taken against the subject of the complaint.

In your correspondence, you have divided the provided records as those that can be released to the requesting employee under the Act and those that cannot be disclosed. Your correspondence states that you have determined that the employee who lodged the complaint is only entitled to receive the records and tape recordings that this employee submitted regarding the complaint, and a letter notifying said employee of the final administrative determination regarding the complaint. However, you did not classify these records or explain why, under the FOIA, they were subject to be released to the requesting employee. You further determined that the remainder of the records cannot be disclosed because they constitute "evaluation records" of the employee complained about. You ask whether your decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether your decisions, as the records' custodian, are consistent with the FOIA. Having reviewed the records, it is my opinion that (1) all but one of the records have been properly classified as the employee evaluation records of the subject of the complaint, the exception being the original complaint itself, which is the personnel record of the employee being complained about and the employee making the complaint; and (2) you have properly identified the records that may be released to the requesting employee under the FOIA, except for one document that must be withheld as an employee evaluation record. I will set out all the definitions and standards applicable to this matter and 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 clearly appear met in this case. As for the first element, the documents are held by the City of Little Rock, 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.

As I understand it, all the attached documents were created or collected during an internal investigation of the employee's complaint. Accordingly, in my opinion, the records clearly reflect the performance or lack of performance of an official function of both the employees creating or providing the records (or information for the records) and the complaining employee seeking the records. Therefore, in my opinion, these records 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 exemption. Second, assuming the record does meet one of those definitions, the custodian must then 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 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. 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. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 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. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

b. Employee evaluation records.

The second potentially relevant exemption from disclosure is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has 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 exemption 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).

[Discussion of compelling-public-interest factors and Watkins commentary, identical to the framework set out in Op. Att'y Gen. 2017-063.]

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.

As I understand it, most of the documents you included with your request for my opinion were created by or at the behest of the employer pursuant to an investigation of an employee's complaint against another employee, which makes those specific documents employee evaluation records. As employee evaluation records, they cannot be released unless all of the elements listed above are met. Because the employee complained about was not suspended or terminated as a result of the complaint and subsequent investigation, the "level of discipline" prong of the test has not been met. Accordingly, those documents cannot be released, and your decision not to release those records is consistent with the FOIA, in my opinion.

As for the original complaint against the employee, this record appears to have been unsolicited by the employer. Therefore, it is not an employee evaluation record. Rather, it is the personnel record of both the employee complained about and the complaining employee. Because public employees are entitled to copies of their own personnel records (with limited exceptions noted above that are not relevant here), this record of the original complaint must be disclosed to the requester.

However, there is a letter dated May 4, 2017, addressed to the employee complained about that it appears you are planning to release. If that is the case, then in my opinion, that decision is inconsistent with the FOIA. From the face of the record, it appears this letter was written as a result of the investigation. As such, it is properly classified as an employee evaluation record; and it, along with the other employee evaluation records, is not disclosable for the reasons stated above.

In conclusion, it is my opinion that your decisions with respect to these records are mostly consistent with the FOIA. One record, however, that it appears you plan to release, must be withheld under the applicable test for an employee evaluation record.

Sincerely,
LESLIE RUTLEDGE
Attorney General