Should a former city employee's personnel file and internal affairs investigation be released under the Arkansas FOIA?

Plain-English summary

Stacey Witherell, on behalf of Brandon Gurley, the subject of the records and a former City of Little Rock employee, asked the AG to review the City's decision to release Gurley's "personnel file and an Internal Affairs Investigation which lead [sic] to his termination of employment." The City had classified the personnel file as personnel records (releasable with redactions) and the IA investigation as a "performance record which lead [sic] to the termination of employment" with no further administrative resolution available to Gurley.

The AG's review reached three conclusions:

Classification. Nearly all the records were properly classified as personnel records under § 25-19-105(b)(12). One specific record was properly classified as an employee-evaluation record under § 25-19-105(c)(1).

Release decision. The City's decision to release both the personnel records and the employee-evaluation record (as redacted) was largely consistent with FOIA. The IA investigation cleared the four-part test under § 25-19-105(c)(1) because it formed the basis of Gurley's termination, the termination was final (no further administrative resolution was available), and the public interest in police-misconduct investigation results was sufficient to be compelling.

Additional redactions needed. The opinion identified specific information beyond what the City had already redacted that needed to be redacted before release.

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.

How the four-part test cleared for the IA investigation

When an employee-evaluation or job-performance record is at issue, § 25-19-105(c)(1) requires all four conditions for release:

1. The employee was suspended or terminated. Met. Gurley was terminated.
2. There has been a final administrative resolution. Met. The City had said no further administrative resolution was available, meaning the termination was final.
3. The records formed a basis for the decision. Met. The IA investigation was the basis of Gurley's termination.
4. The public has a compelling interest in disclosure. Met. Police-misconduct investigations involving terminated officers regularly clear the compelling-interest prong, especially when the position is one of public trust and the misconduct affects the public.

All four prongs met means the IA investigation moves from exempt to required to be released. That is a high bar in employee-evaluation cases, but it is the right outcome for a finalized termination based on misconduct findings.

How personnel-records classification worked for the rest of the file

The personnel file (everything other than the IA investigation) ran through the Young v. Rice two-step balancing test:

Step 1, de minimis screen. Most personnel-file documents (employment applications, training certifications, payroll-related documents, transfer records) clear the de minimis screen quickly because they are not personal or intimate.

Step 2, balance against public interest. When privacy interests are more than de minimis, they are weighed against the public interest in disclosure with the thumb on the scale toward disclosure (Stilley v. McBride). The personnel-file records typically clear this step too, especially for a former employee with a terminated tenure.

The AG identified specific items that needed redaction even within the disclosed file: home address, 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. These categorical redactions apply to all personnel-record releases.

Common questions

What was the IA investigation's misconduct?
The opinion does not specify the underlying misconduct. The Speaker submitted the records but did not detail the conduct in the AG's review request. The compelling-public-interest prong was met because of the basic structure (police misconduct, termination, finality), not because of details specific to the conduct.

Does this mean all police IA investigations are releasable?
No. The four-part test has to be met. An IA investigation that does not lead to suspension or termination is exempt. An IA investigation that is still ongoing has not reached final administrative resolution and is exempt. An IA investigation that finds no basis for discipline does not lead to a basis-formation prong being met. Only investigations that lead to a finalized suspension or termination, where the investigation formed the basis, and where there is a compelling public interest, get released.

Why does the public have a compelling interest in police misconduct cases?
Because police officers exercise public authority, including the use of force. The public has a strong interest in understanding how that authority is exercised and how misconduct is handled. The Watkins, Peltz-Steele & Steinbuch treatise (Arkansas Law Press, 6th ed. 2017) notes that "the status of the employee" or "his rank within the bureaucratic hierarchy" can be relevant to the compelling-interest analysis. High-trust positions, especially law enforcement, regularly clear the prong.

Could Gurley have prevented release through this AG opinion?
The AG's opinion mechanism is non-binding. The custodian (the City) makes the final call. But the AG's analysis here gave the City legal cover to release. Gurley's options to prevent release would have been litigation, which is generally a steep climb against a finalized termination based on a documented IA investigation.

What are the typical redactions in a police IA investigation release?
Beyond the standard personnel-record redactions (home address, SSN, etc.), IA-specific redactions can include: identification of confidential informants, identification of officers working undercover (§ 25-19-105(b)(10)), victim contact information, and information that would compromise ongoing investigations of other officers or third parties. The AG's "additional information you may need to redact" likely fell within these categories, though the opinion does not specify.

What is the difference between an "employee evaluation" record and a "personnel" record for an officer?
Under Thomas v. Hall, evaluation records are (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance or lack of performance. IA investigations and other discipline-related documents typically fit. Personnel records are everything else: hiring documents, payroll, training certifications, transfer records, post-employment compensation. The two categories are mutually exclusive; classification matters because the disclosure tests differ significantly.

Background and statutory framework

The Arkansas FOIA's two-track approach to public-employee records (personnel under § 25-19-105(b)(12), evaluation under § 25-19-105(c)(1)) is one of its more distinctive features. Personnel records use Young v. Rice's two-step balancing with disclosure as default. Evaluation records use § 25-19-105(c)(1)'s four-part test with exemption as default.

For police misconduct cases that result in termination, the four-part test typically clears, making IA investigations releasable when the misconduct was serious enough to support termination. That is consistent with the strong public interest in police accountability.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identification redaction)
• 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)
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed. 2017)

Source

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

Original opinion text

Opinion No. 2017-134
December 19, 2017
Stacey Witherell
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
LR Human Resources Department
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Ms. Witherell:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, made on behalf of Mr. Brandon Gurley, the subject
of the records at issue, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp.
2017). 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 there are a number of requests for Mr.
Gurley's "personnel file and an Internal Affairs Investigation which lead [sic] to
his termination of employment." You have determined that the "first item is a
personnel record and therefore releasable with personal information redacted."
You have further determined that the "second item is a performance record which
lead [sic] to the termination of employment and there is no administrative
resolution process that he can avail himself of." You have ultimately determined
that the attached records are releasable with the applicable personal information
redacted. The subject of the FOIA request, a former City of Little Rock employee,
is requesting an opinion with respect your determination.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the records at issue, it is my opinion (1) that nearly all of
the records should be classified as personnel records; (2) that one record should be
323 CENTE I~ STRE ET. SUITE 200 · LITTLE ROCK. ARKANSAS 7220 I
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Stacey Witherell
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classified as an employee-evaluation record; and (3) that your decision as
custodian to release the personnel records and the employee-evaluation record, as
redacted, is for the most part consistent with the FOIA. However, as discussed
below, there is additional information you may need to redact.
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 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
Because the records are held by a public entity, they are presumed to be public
records, although that presumption is rebuttable. 2 You appear to have determined
that they are public records.
Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files.3 For purposes of the FOIA, these items can usually
1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2 See Op. Att'y Gen. 2010-044. Stacey Witherell
Opinion - 2017-134
Page 3
be divided into two mutually exclusive groups: "personnel records"4 or "employee
evaluation or job performance records."5 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. 6 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
3 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;
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).
4 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."
5 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 if there is a compelling public interest in their disclosure."
6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. Stacey Witherell
Opinion - 2017-134
Page 4
that disclosure would constitute a clearly unwarranted invasion of personal
privacy."7
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,8 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. 9
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. 10 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. 11 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.12 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.13
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact. 14
7 Ark. Code Ann.§ 25-19-105(b)(12).
8 308 Ark. 593, 826 S.W.2d 252 (1992).
9 Watkins, et al., at 208.
10 Young, 308 Ark at 598, 826 S.W.2d at 255.
11 Id., 826 S.W.2d at255.
12 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
14 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Stacey Witherell
Opinion -2017-134
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)(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 exception.
The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define. 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. 15 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
15 Cf Op. Att'y Gen. 96-168; Watkins, et al. at 223. Stacey Witherell
Opinion -2017-134
Page 6
performance or lack of performance on the job. 16 And this office has opined that
letters of termination constitute employee-evaluation records if they contain the
reasons for the termination. 17
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).18
   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, because that concern, at least theoretically, always
   exists. However, a link between a given public controversy, an
   16 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067; 2008-
   004; 2007-225; 2006-038; 2005-030; 2003-073; 98-006; 97-222; 95-351; 94-306; and 93-055.
   17 E.g. Ops. Att'y Gen. 2014-052 and 2001-276 (and opinions cited therein). If, however, the
   letter merely reflects the fact of termination, without elaboration, this office has opined that the
   letter is properly classified as a "personnel record" under section 25-19-105(b )(12). See Op.
   Att'y Gen. 2006-147 (and opinions cited therein).
   18 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. Stacey Witherell
   Opinion - 2017-134
   Page 7
   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. 19
   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.20 Of particular relevance here, I would note
   that "the public has a great interest in the performance of police officers and other
   law-enforcement officials, and in this case the 'cop on the beat' is just as important
   as the chief of police."21 But as with all elements of the test for disclosure of
   employee-evaluation records, whether there is a compelling public interest is a
   question of fact that must be addressed by the custodian after she considers all the
   relevant information.
   II. Application.
   I can now apply the foregoing to the attached documents, which you have
   determined should be disclosed, subject to certain redactions.
   The first step, as noted above, is to categorize the documents. It is clear from their
   content that most of the documents you have submitted for my review constitute
   personnel records. In my opinion, the only document that does not fall into that
   category is the "Termination of Employment" letter, dated December 8, 2017.
   Because this termination letter recounts the reasons for the termination of the
   former employee, I believe the letter qualifies as an employee-evaluation record.
   As an employee-evaluation record, it cannot be released unless all four elements
   of the disclosure test are met. It appears clear from the face of the record that the
   level-of-discipline element has been met and that the record formed a basis for the
   disciplinary decision. That is, the subject of the records has been terminated, and
   19 Watkins, et al., at 238-39 (footnotes omitted).
   20 Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   21 Watkins, et al., at 238. Stacey Witherell
   Opinion - 2017-134
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   the letter explains the employer's reasons for the termination.22 And you have
   ascertained that there is no administrative resolution process the terminated
   employee can avail himself of, such that the finality element is also satisfied.
   As for whether there is a "compelling public interest," it is my opinion that the
   relevant factors support your apparent determination that a compelling public
   interest does, in fact, favor the record's disclosure. The letter reflects that a law-
   enforcement recruit was terminated for violating rules aimed at preventing conduct
   that manifestly could undermine the public trust.23 Based on the incidents detailed
   in the letter forming the basis of the subject's termination, I believe there is a
   compelling public interest in the letter's disclosure. Therefore, in my opinion,
   your decision to release the December 8, 2017 termination letter is consistent with
   the FOIA. Your redaction of the subject's personnel number listed in this letter is
   likewise consistent with the FOIA. Please note, however, that the personnel
   number appears on both pages of the two-page letter, and it must be redacted in
   each instance.24
   The remaining documents are, in my opinion, personnel records. And I believe
   you have correctly determined that these records are subject to disclosure, except
   those portions of the records that would constitute a clearly unwarranted invasion
   of personal privacy if disclosed. In my opinion, the following information from
   the personnel records must be considered for redaction, in addition to the
   information you have already crossed through:25
   • The terminated employee's date of birth listed below Question 1 on page
   three of the "Entry Police Officer (Patrol) Application Detail."26
   • The "Job Class#" entry on page one of the "Hire/Personnel Action Form,"
   to the extent the job-class number meets the definition of "data used to
   22 Although written contemporaneously with the employment decision, letters of termination have
   been deemed by this office to form a basis for the termination. See Ops. Att'y Gen. 2014-052;
   2006-026; 2005-030, fn. 3.
   23 See note 20 supra.
   24 See, e.g. Ops. Att'y Gen. 2014-094, 2007-070.
   25 The custodian must make all redactions permanently enough so as to absolutely prevent
   someone from being able to discover the exempt information.
   26 See Op. Att'y Gen. 2007-064. Stacey Witherell
   Opinion - 2017-134
   Page 9
   cause a computer or a computer system ... to perform security functions,
   including, but not limited to ... personal identification numbers .... "27
   • The entire photocopy of the subject's driver's license, appearing on the
   second page of the documents provided. 28
   • The Social-Security Number on the photocopy of the subject's Social-
   Security card, appearing on the second page of the documents provided.
   • The "Employer ID #" appearing below the heading on the "Statement
   Concerning Your Employment in a Job Not Covered by Social Security.29
   • The "Position No." on page one of the "Status Change Form," to the extent
   the position number meets the definition of "data used to cause a computer
   or a computer system ... to perform security functions, including, but not
   limited to ... personal identification numbers .... "30
   • The "Immediate Supervisor Code" on page one of the "Status Change
   Form," to the extent the job-class number meets the definition of "data used
   to cause a computer or a computer system ... to perform security functions,
   including, but not limited to ... personal identification numbers .... "31
   CONCLUSION
   In my opinion, you have correctly classified the relevant documents as (1)
   personnel records, and (2) an employee-evaluation or job-performance record. I
   believe your decision to release these documents is consistent with the FOIA,
   subject to the information I identified above for purposes of redaction. I would
   emphasize that it is the custodian's duty to make all redactions on an otherwise
   disclosable record permanently enough that a third party would be absolutely
   prevented from discovering the exempt information.
   ~~ LESLIERCT~
   Attorney General
   27 Ark. Code Ann.§ 25-19-105(b)(l 1).
   28 See Op. Att'y Gen. 2017-125, n. 15. See also Op's Att'y Gen. 2005-194; 2015-057.
   29 See Op. Att'y Gen. 2005-194.
   30 Ark. Code Ann.§ 25-19-105(b)(l 1).
   31 Id.