Did the Little Rock Police Training Academy properly handle the FOIA release of CLEST records related to Officer Schiefelbein?

Plain-English summary

Officer Brandon Schiefelbein, on the personnel-records-subject track of § 25-19-105(c)(3)(B)(i), asked the AG to review the City of Little Rock's decision regarding a FOIA request for "copies of public records regarding [his] application of employment ... and copies of any forms and documents sent to the Arkansas Commission on Law Enforcement Standards & Training (CLEST)" about him. The custodian had marked some records for release with redactions and others for withholding.

The AG concluded the custodian's classification approach was correct: the records were properly treated as personnel records, not employee-evaluation records. Personnel records run through the Young v. Rice two-step balancing test (de minimis privacy interest screen, then balance against public interest with thumb on the scale toward disclosure). Most of the custodian's specific release/withhold and redaction decisions were consistent with the FOIA, with two exceptions identified in the opinion's full text.

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.

Why CLEST records sit in the personnel-records track

The Arkansas Commission on Law Enforcement Standards & Training (CLEST) certifies law enforcement officers and tracks their training, certification status, and disciplinary history. Forms and documents sent to CLEST about an individual officer (training certifications, disciplinary referrals, certification applications) typically fall within "personnel records" because they pertain to that officer's employment record. They are not "employee evaluation or job performance records" under the Thomas v. Hall test unless they were created by or at the behest of the employer specifically to evaluate the officer's performance.

The AG agreed with the custodian's classification and confirmed the records run through the personnel-records test under § 25-19-105(b)(12), not the four-part employee-evaluation test under § 25-19-105(c)(1).

How the Young v. Rice balancing test applies to CLEST records

Young v. Rice's two-step framework:

Step 1, de minimis screen. If the privacy interest is merely de minimis, the thumb-on-the-scale toward disclosure controls and the record is released. Routine training certifications and similar non-sensitive documents typically clear this step quickly.

Step 2, balance against public interest. When the privacy interest is more than de minimis, the custodian weighs it against the public interest in disclosure, with the burden on the person resisting disclosure (Stilley v. McBride). The subject's own preference for privacy is irrelevant; the test is objective.

Within released personnel records, certain discrete pieces of information must be redacted regardless of the document's overall releasability: home address (§ 25-19-105(b)(13)), social security number, date of birth, marital status, dependent information, medical information, driver's license number, banking information, payroll deductions, undercover-officer identification, employee personnel number.

Common questions

What is CLEST and why do its records matter?
The Arkansas Commission on Law Enforcement Standards & Training is the state agency that certifies law enforcement officers in Arkansas. Officers must meet CLEST training and certification standards to serve. CLEST holds records on every certified officer in the state, including training, certifications, disciplinary referrals, and decertification proceedings. CLEST records get FOIA requests both from journalists investigating officer misconduct and from officers themselves seeking copies of their own files.

Why did Officer Schiefelbein invoke § 25-19-105(c)(3)(B)(i)?
The statute lets the subject of personnel records request an AG opinion on whether the custodian's release decision is consistent with the FOIA. Officers facing release of records about themselves often use this mechanism to ensure proper redactions and to flag overbroad releases.

Could CLEST records be employee-evaluation records?
Some records sent to CLEST might fall on the evaluation side, particularly internal-affairs investigations or disciplinary findings. The AG concluded these specific records were personnel-track, not evaluation-track. That classification distinction matters because the four-part evaluation test is generally tougher than the Young v. Rice balancing test.

What does it mean that two records had to be adjusted?
The opinion identifies two specific records where the AG disagreed with the custodian's specific call. Without naming the documents in this summary (the full text describes the exceptions), the takeaway is that even when the overall framework is right, individual document-level decisions can need adjustment.

Are CLEST records held by Little Rock or by CLEST itself?
Both. The Little Rock Police Training Academy held copies of forms it sent to CLEST. CLEST holds its own records. A FOIA requester can target either custodian; the records may differ slightly because each custodian holds what was sent to or by that office.

Background and statutory framework

The FOIA opinion mechanism at § 25-19-105(c)(3)(B)(i) is unusual in U.S. open-records law. It lets the custodian, requester, or subject of personnel or employee-evaluation records seek a non-binding AG opinion on whether the release decision is consistent with the FOIA. The AG's review functions as a sanity check; the custodian retains decisional authority.

Personnel records under § 25-19-105(b)(12) are released unless disclosure would be a "clearly unwarranted invasion of personal privacy" under Young v. Rice's two-step test. Employee-evaluation or job-performance records under § 25-19-105(c)(1) are released only if all four conditions are met: suspension or termination, finality, basis, and compelling public interest (Thomas v. Hall).

CLEST is established under Title 12 of the Arkansas Code and serves as Arkansas's state-level law enforcement officer certification body.

Citations

• 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(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)

Source

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

Original opinion text

Opinion No. 2017-125
November 30, 2017
Officer Brandon Schiefelbein
c/o Captain Marcus Paxton
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
Little Rock Police Training Academy
10901 Arch Street
Little Rock, AR 72206
Dear Officer Schiefelbein:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is made pursuant to Ark. Code Ann. § 25-19-
l 05( 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 public
records regarding [your] application of employment . . . and copies of any forms
and documents sent to the Arkansas Commission on Law Enforcement Standards
& Training ("CLEST")" concerning you. You have attached several documents
that the custodian of records has either determined to be responsive to the request,
with certain redactions, or are exempt from disclosure. You ask whether the
attached records are subject to disclosure.
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 that the custodian has
properly classified the records at issue as personnel records. Furthermore, the
custodian's decision to either release the records with certain redactions or
withhold certain records is mostly consistent with the FOIA, with two exceptions
323 CENTrn STREET. Sum: 200 ' LITTLE ROCK. ARK/\NS/\S 7220 I
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Officer Brandon Schiefelbein
c/o Capt. Paxton, Little Rock Police Training Academy
Opinion No. 2017-125
Page 2
listed below. 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 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 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.1
In my opinion, these documents, kept and maintained by the City of Little Rock,
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.2 For purposes of the FOIA, these items can usually
1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2015).
2 This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records; Officer Brandon Schiefelbein
c/o Capt. Paxton, Little Rock Police Training Academy
Opinion No. 2017-125
Page 3
be divided into two mutually exclusive groups: "personnel records"3 or "employee
evaluation or job performance records."4 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.
It is my understanding that the custodian has determined that the records submitted
with your request for my opinion are personnel records, not employee-evaluation
records. I believe the custodian's determination in this regard is correct. I will
therefore limit my discussion to the test for disclosure relating to personnel
records.
The FOIA does not define the term "personnel records," 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.5
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
requests for leave-without-pay; certificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-
Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
3 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion
of personal privacy."
4 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(12) of this section, all
employee evaluation or job performance records, including preliminary notes and other materials,
shall be open to public inspection only upon final administrative resolution of any suspension or
termination proceeding at which the records form a basis for the decision to suspend or terminate
the employee and ifthere is a compelling public interest in their disclosure."
5 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. Officer Brandon Schiefelbein
c/o Capt. Paxton, Little Rock Police Training Academy
Opinion No. 2017-125
Page4
except "to the extent that disclosure would constitute a clearly unwarranted
invasion of personal privacy. "6
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,7 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. 8
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.9 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. 10 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. 11 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. 12 Finally, whether any particular personnel record's release would
constitute a clearly unwarranted invasion of personal privacy is always a question
of fact.13
6 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015).
7 308 Ark. 593, 826 S.W.2d 252 (1992).
8 Watkins, et al., at 208.
9 Young, 308 Ark. at 598, 826 S.W.2d at 255.
10 Id., 826 S.W.2d at 255.
11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Officer Brandon Schiefelbein
c/o Capt. Paxton, Little Rock Police Training Academy
Opinion No. 2017-125
Page 5
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));
• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• 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 )(1 O));
• 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).
III. Application.
Having reviewed the records at issue, it is my opinion that the custodian's decision
to release them as redacted 14 is mostly consistent with the FOIA. The records
plainly meet the definition of "public records." Furthermore, the records all meet
the definition of "personnel records." Thus, the custodian has correctly
determined that they are subject to disclosure unless doing so would constitute a
clearly unwarranted invasion of personal privacy. It is my opinion that with two
14 The records I reviewed were marked through in such a way, in my assessment, as to indicate
what information the custodian plans to redact and where those redactions will be made, but that
still enabled me to see the information to aid in my review. Clearly, the custodian will have to
make the redactions prior to disclosure in the proper manner such that the exempt information
cannot be viewed or discovered in any way. Officer Brandon Schiefelbein
c/o Capt. Paxton, Little Rock Police Training Academy
Opinion No. 2017-125
Page 6
exceptions, the custodian has properly redacted the records under this test. In my
opinion, one redacted record must be entirely withheld and another record must be
further redacted. Specifically, in my opinion, the custodian must:
• Withhold in its entirety the photocopy of your driver's license.15
• Redact your parents' names from your birth certificate.16
In conclusion, the custodian has classified the attached documents as personnel
records and has determined that certain of the records must be disclosed with
redactions and that other records are exempt from disclosure. In my opinion, in
light of the foregoing analysis, these decisions are consistent with the FOIA, with
the exception of the two corrections I have listed above. And, as noted, it is the
custodian's duty to make all redactions on an otherwise disclosable record
permanently enough as to absolutely prevent someone from being able to discover
the exempt information.
Sincerely,
~~_;~- ,,. //~.,,
LESLIE RUTLEDGE
Attorney General
15 Op. Att'y Gen. 2005-194. See also Ops. Att'y Gen. 2015-057, 2013-090, 2012-063, 2008-138,
2008-053, and 2001-331.
16 See Ops. Att'y Gen. 2011-081, 2008-053, 2007-070, 98-152, and 97-177.