Could Green Forest Police Department deny a FOIA request for ex-officers' records because they weren't terminated?

Plain-English summary

Misty Rupert filed a FOIA request with the Green Forest Police Department for "personnel records, including but not limited to promotions, demotions, disciplinary actions and previous employer information" for three former Green Forest police officers. The department's records custodian denied the request, reasoning that "as all three officers you have requested information on were not [suspended or] terminated ... their records are exempt from release under FOIA." Rupert asked the AG whether that denial was consistent with FOIA.

The AG could not give a yes-or-no answer because the custodian had not submitted the actual records. Instead, the opinion explains the FOIA framework that the custodian needed to apply, and notably flags that the custodian's reasoning contained an important error: applying the suspension-or-termination test to the wrong category of records.

The framework requires the custodian to do classification first. A personnel file typically contains both "personnel records" under § 25-19-105(b)(12) and "employee evaluation or job performance records" under § 25-19-105(c)(1). These are mutually exclusive. They have different release tests.

For personnel records (anything employee-specific that's not an evaluation), the test is the Young v. Rice balancing: open unless the privacy interest outweighs the public interest in disclosure. Suspension or termination is irrelevant. Items in this category often include employment applications, payroll information, transfer records, school transcripts, and certificates. Promotion and demotion records, depending on context, can fall here too.

For employee evaluation records (those created to evaluate the employee and detail performance, including investigation records under Thomas v. Hall), the four-condition test applies: the employee must have been suspended or terminated, the proceeding must be final, the records must have formed a basis for the discipline, and there must be compelling public interest. Disciplinary action records often fall here.

The implicit problem with Green Forest's blanket denial was treating the four-condition test as if it applied to everything Rupert asked for. It doesn't. Personnel records don't get analyzed under that test. The custodian needed to sort the records into the two categories, apply the appropriate test to each, and release everything that passed the test (with mandatory redactions of personal contact info, SSNs, etc.).

That said, the AG could not reach a final conclusion without seeing the records. The opinion advises the custodian to do the classification and apply the appropriate tests in the first instance.

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.

Background and statutory framework

The FOIA's personnel-related exemptions are in Ark. Code Ann. § 25-19-105:

(b)(12), the personnel records exemption: keeps records out of public view "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test applies. The thumb is on the scale toward disclosure. The burden of resisting disclosure rests on the person asserting privacy.

(c)(1), the employee evaluation/job performance records exemption: keeps records out of public view unless all four of these conditions are met: suspension or termination, final administrative resolution, records formed a basis for the discipline, compelling public interest. Thomas v. Hall (Ark. 2012) defines this category to include 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," explicitly including investigation records about employee misconduct.

These categories are mutually exclusive. Each record falls into one or the other, not both. The classification step is critical. A custodian who treats every employee-related record as an evaluation record (subject to the harder four-condition test) can wrongly withhold documents that should be released. A custodian who treats every record as a personnel record (subject to the easier balancing test) can wrongly release documents that should stay closed.

For police officers specifically, disciplinary action records often fall on the evaluation side. Promotion and demotion records vary: a promotion authorized in the ordinary course is more likely a personnel record; a demotion that operates as discipline can be an evaluation record. The "previous employer information" Rupert requested is less obviously evaluation-side; it more likely fits within personnel records (background check materials).

The fact that the officers were former employees doesn't change the analysis. The exemptions and tests apply to records of past as well as current employees.

Common questions

Did the Green Forest custodian get it right?
Probably not, at least as the reasoning was framed. The blanket denial used the suspension-or-termination test (which applies to evaluation records) as a ground for denying everything, including likely personnel records that should have gone through the Young v. Rice balancing test. The AG advised classification first, then test-by-test analysis.

What kind of records would Rupert have been entitled to receive?
Without seeing the records, the AG could not say. But generally, personnel records (employment applications, hire documents, certifications, payroll-related items not exempt under specific redaction rules) would go through the personnel-records test, which often results in release. Disciplinary action records on officers who were not suspended or terminated would typically stay closed under the evaluation-records test.

What about "previous employer information"?
That sounds like background-check material rather than evaluation material. It would likely be a personnel record, subject to the balancing test, with mandatory redactions for things like SSNs and personal contact info.

Why does former-employee status not matter?
Because the FOIA exemptions are about the type of record, not the employment status of the subject at the time of the request. Records about ex-employees are still personnel or evaluation records.

What should a custodian do when faced with a request like this?
Identify all responsive records. Classify each one. Apply the right test for each category. Release what's releasable. Redact what's required to be redacted. Withhold what's properly withheld and explain the legal basis.

Source

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

Original opinion text

Opinion No. 2017-113
October 19, 2017
Ms. Misty Rupert
325 CR426
Berryville, AR 72616
Dear Ms. Rupert:

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.

The correspondence you have submitted indicates that you have recently made FOIA requests to the Green Forest Police Department for copies of employee-related records pertaining to several individuals. Specifically, you have requested "copies of ... personnel records, including but not limited to promotions, demotions, disciplinary actions and previous employer information" for three former employees of the Department. The custodian of records for the Police Department has determined that "as all three officers you have requested information on were not [suspended or] terminated ... their records are exempt from release under FOIA." You ask for an opinion as to 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. Because I have not seen any records that would be responsive to your FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. Accordingly, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

[Full discussion of the FOIA framework follows in the original opinion: general standards governing disclosure, the personnel-records exemption with the Young v. Rice balancing test, the employee-evaluation records exemption with the four-condition test (suspension or termination, finality, basis for discipline, compelling public interest), the Thomas v. Hall definition of evaluation records, and the standard list of mandatory redactions including personal contact information, employee personnel numbers, marital status, dates of birth, Social Security numbers, medical information, undercover law enforcement identifiers, driver's license numbers, insurance coverage, tax information, payroll deductions, and banking information.]

Sincerely,

LESLIE RUTLEDGE
Attorney General