Can a deputy sheriff stop the release of his 20-year-old personnel records under the Arkansas FOIA?

Plain-English summary

A FOIA requester asked the Benton County Sheriff's Office for Officer Mike Lira's "entire file," including personnel, evaluation, performance, and disciplinary records. The Sheriff's Office assembled and redacted Lira's file. Lira asked the AG to review the release decision under § 25-19-105(c)(3)(B)(i), specifically objecting to the older records (Bates 053-094) from his earlier period of employment with the Sheriff's Office, which dated back roughly 20 years.

The AG concluded the release decision was largely consistent with the FOIA. The Arkansas FOIA does not exempt records based on age. The Pulaski County Circuit Court had ruled in Racop v. Arkansas State Police that 15-year-old personnel records still had to be disclosed under the same FOIA standards as recent records. The AG agreed with that approach, treating it as persuasive (a circuit court decision is not binding).

But the AG identified specific records that should be withheld or further redacted. Bates 055 (from the older period) was an employee-evaluation or job-performance record that did not form the basis of a suspension or termination, so it was exempt under § 25-19-105(c)(1). Bates 049-052 and 111 (from the more recent period) had the same problem. Bates 001-008 were employee-evaluation records that might still be in an ongoing disciplinary proceeding; if so, they were exempt until that proceeding had a final administrative resolution. Bates 040 had a home street address that needed redaction under § 25-19-105(b)(13).

The AG also offered a process note on redaction practice. The custodian had used white-out, which the AG said was less reliable than blacking out information and then photocopying or scanning. That tip is for production quality, not legal sufficiency.

Currency note

This opinion was issued in 2018. 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 FOIA's two-track exemption framework worked here

Once a public-employee record is responsive to a FOIA request, the custodian first determines whether it is a personnel record (§ 25-19-105(b)(12)) or an employee-evaluation/job-performance record (§ 25-19-105(c)(1)). They are mutually exclusive categories with different release tests.

Personnel records. Released unless disclosure would constitute a "clearly unwarranted invasion of personal privacy" under the Young v. Rice two-step test: (1) is the privacy interest more than de minimis? If not, release. (2) If yes, balance against public interest, with the thumb on the scale toward disclosure and the burden on the person resisting disclosure.

Employee-evaluation/job-performance records. Defined under Thomas v. Hall as 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. Released only if all four of the following are met: the employee was suspended or terminated; the disciplinary proceeding reached final administrative resolution; the records formed a basis for that decision; and the public has a compelling interest in disclosure.

The AG worked through Lira's file under both tracks.

Specific findings on the older records

The AG focused first on Bates 053-094 (the older 20-year-old records that Lira specifically objected to). The AG concluded:

Most are non-exempt personnel records. The training certifications at 095-110 and 112-116 were classified as personnel records and the AG saw no clearly unwarranted invasion of privacy from disclosure.

Bates 055 is exempt. The AG identified 055 as an employee-evaluation or job-performance record. Because it did not form the basis of any suspension or termination, all four conditions for release were not met, and the document was exempt under § 25-19-105(c)(1).

Age does not change the analysis. The AG addressed the age objection directly. The FOIA does not include any age-based exemption. Racop v. Arkansas State Police was decided in 2015 and ordered disclosure of 15-year-old personnel records. Even though that was a trial-court decision (and trial-court decisions are not binding), the AG found it persuasive. Lira's 20-year-old records were not protected from disclosure simply because they were old.

Specific findings on the more recent records

The AG also identified pages from the more recent period that the custodian should reclassify or redact:

• Bates 001-008: Employee-evaluation records. The AG noted that these "may not have resulted in a final administrative resolution of the suspension or termination proceeding." If any such proceeding was ongoing, those documents were exempt under § 25-19-105(c)(1). If the proceeding had reached final resolution, the documents would still need to satisfy the basis and compelling-public-interest prongs. The AG also said that if the records were ultimately disclosed, names of co-employees who were also evaluated should likely be redacted.

• Bates 040: A personnel record that had a discrete piece of information needing redaction. The street address beside "Address Contact Notes" had to be redacted under § 25-19-105(b)(13) (personal contact information of public employees).

• Bates 049-052: Employee-evaluation or job-performance records that did not form the basis of a suspension or termination. Exempt under § 25-19-105(c)(1).

• Bates 111: Same analysis as 049-052. Exempt.

Common questions

Why does age not protect old records?
Because the Arkansas FOIA's exemptions are content-based, not chronology-based. The exemptions ask: is this record a personnel record? An employee-evaluation record? Does releasing it invade personal privacy? They do not ask whether the record is recent or old. The Pulaski County Circuit Court took the same approach in Racop, and the AG followed it as persuasive.

Did the AG rule on whether the public has a "compelling interest" in records 001-008?
Not directly. The AG noted that 001-008 might be in an ongoing disciplinary proceeding, which would make them exempt regardless of public interest. If the proceeding had ended, the AG would have had to apply the four-part test, which includes the compelling-public-interest prong. The opinion did not reach that step because of the ongoing-proceeding question.

Could redacting names of co-employees protect their privacy?
The AG said yes. When a single employee-evaluation record references multiple employees, releasing it as to one (the subject) does not require releasing the names of other evaluees. Co-employee names should be redacted in those cases.

What does white-out vs. black-out and photocopy actually matter?
White-out can sometimes be reversed by manipulating the document's contrast or scanning it under different conditions. Black-out followed by photocopy or PDF scan is a one-way operation: the redacted material literally cannot be recovered. The AG's practice tip is about ensuring redactions stay redacted in the released document.

What if the requester only wanted recent records?
The opinion notes that the AG has no statutory duty to review whether the custodian gathered the right records. That is the custodian's responsibility. The AG's role under § 25-19-105(c)(3)(B)(i) is to review release/withhold decisions about the records the custodian decides are responsive.

Why does this opinion matter beyond Officer Lira's specific file?
It clarifies three points of broader use. First, age does not exempt records under the Arkansas FOIA. Second, employee-evaluation records that did not form the basis of suspension or termination are exempt regardless of age. Third, white-out is not the recommended redaction method.

Background and statutory framework

Section 25-19-105(b)(12) covers personnel records and runs through the Young v. Rice balancing test. Section 25-19-105(c)(1) covers employee-evaluation and job-performance records and runs through the four-part test from Thomas v. Hall. Section 25-19-105(b)(13) requires redaction of personal contact information of public employees: phone numbers, email addresses, home addresses. Other discrete pieces of information that have to be redacted from otherwise-disclosable records (per AG opinions) include personnel numbers, marital status, dates of birth, social security numbers, medical information, undercover law-enforcement identifying information, driver's license numbers, insurance coverage, tax information, payroll deductions, and banking information.

Racop v. Arkansas State Police was decided in 2015. Although it is a trial-court decision and thus persuasive rather than binding, it is the leading Arkansas authority on the principle that age does not exempt personnel records.

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 redaction)
• 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)
• Racop v. Arkansas State Police, 60CV-4192 (Pulaski Cir. Ct. Sept. 9, 2015) (age does not exempt records)
• 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. 2018-007
January 29, 2018
Officer Mike Lira
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Sgt. Shannon Jenkins
Benton County Sheriffs Office
1300 SW 14th Street
Bentonville, AR 72712
Dear Officer Lira:
You have asked for my opinion regarding documents sought under the Arkansas
Freedom of Information Act ("FOIA"). Arkansas Code Annotated § 25-19-
105( c )(3)(B)(i) (Supp. 2015) authorizes the custodian, requester, or subject of
personnel or employee-evaluation records to seek an opinion from this office as to
whether the custodian's decision regarding release of these records is consistent
with the FOIA.
Documents forwarded to this office show that a FOIA request was made to the
Benton County Sheriffs Office for a copy of your "entire file," including
"personnel records, evaluation and performance records, any disciplinary records,
or any other applicable documentation with appropriate redactions made involving
[your] protected information." You have provided a copy of your personnel file as
redacted by the custodian.
You indicated that your file covers two separate periods of employment with the
Benton County Sheriffs Office, the earlier of which dates back 20 years. While
you do not question the release of your "current file," as redacted, you object to
release of the documents that pertain to your "previous employment" with the
Sheriffs Office. I am therefore beginning my review with the documents
generated during your earlier period of employment. However, I will make note
of any documents from your more recent period of employment that are exempt
from disclosure under the FOIA.
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (50 I) 682-8084
ARKANSASAG.GOV Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 2
RESPONSE
Under section 25-19-105( c )(3)(B)(i), my duty is to state whether the decision of
the custodian (the Benton County Sheriff's Office) is consistent with the FOIA.
Having reviewed the documents provided, it is my opinion that the custodian
correctly identified the majority of documents as non-exempt personnel records
and employee-evaluation records. And because there is no exemption under the
FOIA for documents based simply on their age, I believe the custodian's decision
to release, with redactions, the documents related to your earlier period of
employment is correct. Likewise, I believe the decision is largely correct to
release, with redactions, the documents related to your more recent period of
employment. Although you do not object to the more recent documents'
disclosure, I believe some of the documents should be withheld under the FOIA as
exempt employee-evaluation records.
DISCUSSION
I. General standards governing disclosure.
A document must be disclosed under the FOIA if (1) the request was directed to
an entity subject to the FOIA; (2) the requested documents are public records; and
(3) the requested documents are not exempt from disclosure. All three of these
conditions must be satisfied for disclosure to take place.
The first two elements seem to be satisfied. The request was made to the Benton
County Sheriff's Office, which is a public entity subject to the FOIA. And the
request pertained to public records. The FOIA defines public records as "writings,
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 ... carried out by a public official or employee .... "1 There is a
rebuttable presumption that documents kept by a entity subject to the FOIA are
public records.2 Here, the Benton County Sheriff's Office appears to have
classified as public records all of the documents forwarded for review. I will
therefore proceed as though the documents are public records that must be
disclosed, unless an exemption provides otherwise.
1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2 See Op. Att'y Gen. 2010-044. Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 3
II. Relevant exemptions under the FOIA.
The FOIA exempts two types of records normally found in employees' personnel
files: "personnel records"3 and "employee evaluation or job performance
records."4 The custodian is responsible for classifying documents from a
personnel file5 as either personnel or employee-evaluation records. Then, the
custodian must apply the appropriate exemption test to determine whether the
FOIA requires that the records be disclosed.
a. Personnel records.
The FOIA does not define "personnel record." But this office has consistently
opined that personnel records are all records, other than employee-evaluation
records, that pertain to individual employees. 6 Whether a particular record meets
this definition is a question of fact that can only be determined by reviewing the
record itself. Documents properly classified as personnel records are exempt
under the FOIA, but only "to the extent that disclosure would constitute a clearly
unwarranted invasion of personal privacy."7
The FOIA does not define the phrase "clearly unwarranted invasion of personal
privacy." However, the Arkansas Supreme Court has established a balancing test
to determine whether release of a personnel record would violate this standard. In
3 See Ark. Code Ann. § 25-19-105(b )(12) (Supp. 2017).
4 See Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2017).
5 This office and the leading commentators on the FOIA have observed that personnel files
usually include documents such as 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).
6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
7 Ark. Code Ann.§ 25-19-105(b)(12). Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 4
Young v. Rice,8 the Court balanced the public's interest in accessing personnel
records against the subject of the record's interest in keeping them rrivate. This
balancing test takes place with the scale tipped in favor of disclosure.
The test involves two steps. First, the custodian must assess whether the
information contained in the personnel record is of a personal or intimate nature,
such that it gives rise to a greater than de minimis privacy interest for the subject.10
If the interest is merely de minimis, then the thumb on the scale favoring
disclosure outweighs the privacy interest, and the record must be disclosed.
If the information gives rise to a greater than de minimis privacy interest, then the
custodian must next determine whether that interest is outweighed by the public's
interest in disclosure. 11 Whether the release of any particular personnel record
would constitute a clearly unwarranted invasion of personal privacy is always a
question of fact.12 However, because the balancing test is objective, whether the
subject of the records considers their release an unwarranted invasion of personal
privacy is irrelevant to the analysis.13 Exemptions under the FOIA are narrowly
construed, so the subject has the burden of showin9 that under the circumstances,
his privacy interests outweigh the public's interests. 4
A personnel record, as a whole, may meet the two-part balancing test. But the
record may nevertheless contain discrete information that would constitute a
clearly unwarranted invasion of personal privacy if disclosed. Such information
must be redacted. Examples are:
• 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));
8 308 Ark. 593, 826 S.W.2d 252 (1992).
9 Watkins, et al., at 208.
'0 Young, 308 Ark. at 598, 826 S.W.2d at 255.
11 Id., 826 S.W.2d at 255.
12 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
13 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
14 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 5
• 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 records.
The FOIA does not define "employee evaluation or job performance records."
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.15 Employee-evaluation records include records generated while
investigating allegations of employee misconduct, which describe the incidents
that gave rise to the allegation of misconduct.16
Documents properly classified as employee-evaluation records are generally
exempt from disclosure under the FOIA.17 An employee-evaluation record may be
disclosed only if all of the following conditions apply:
15 See 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.
16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
17 See Ark. Code Ann. § 25-19-105(c)(l). This exemption preserves the confidentiality of the
job-evaluation process and promotes honest exchanges in the employee/employer relationship.
See Op. Att'y Gen. 96-168; Watkins, Peltz-Steele & Steinbuch at 223. Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 6

1. The subject employee was suspended or terminated ("level of
   discipline");
2. There was a final administrative resolution of the suspension or
   termination proceeding ("finality");
3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate ("basis"); and
4. The public has a compelling interest in the disclosure of the records
   in question ("compelling interest").18
   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:
   [T]he 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
   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
   As with personnel records, whether a record qualifies as an employee-evaluation
   record-and whether it is exempt from disclosure-is a question of fact that must
   first be answered by the custodian after considering the relevant information.
   18 Ark. Code Ann.§ 25-19-IOS(c)(l); Op. Att'y Gen. 2008-065.
   19 Watkins, et al., at 238-39 (footnotes omitted). The commentators also note that the "status of
   the employee" and "his rank within the bureaucratic hierarchy" may be relevant in determining
   whether a "compelling public interest" exists. Id. at 237 ("As 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."). Officer Mike Lira
   c/o Sgt. Shannon Jenkins
   Opinion No. 2018-007
   Page 7
   III. Application.
   I can now apply these definitions and disclosure tests to the attached records. You
   have objected to the release of the records from your "previous employment" with
   the Benton County Sheriffs Office.20 You state that these records are dated, going
   back some 20 years. As best I can tell, the "previous employment" records appear
   from Bates-stamped documents 053 through 094.
   In my opinion, the custodian's decision to release records 053 through 094 is
   largely consistent with the FOIA.21 The requester seeks your "entire file," with no
   date or time parameters. This office has no statutory duty to review a decision to
   gather certain records in response to a request-that is the custodian's
   responsibility-but the records pertaining to your previous employment seem
   relevant to the requester's broad query.
   Just as important, the FOIA does not exempt records based on their age relative to
   the year of the request. Indeed, the Pulaski County Circuit Court has held that the
   FOIA required disclosure of personnel records that were approximately 15 years
   old when they were requested.22 While a trial-court decision is not binding (and
   while all FOIA determinations must be made on a case-by-case basis), I find the
   holding to be persuasive. Therefore, I do not believe that the records Bates
   stamped 053 through 094 should be withheld due to their age.
   Nevertheless, at least one record pertaining to your "previous employment" should
   be withheld. Specifically, the record at 055 is an employee-evaluation or job-
   performance record that did not form the basis of a suspension or termination. It is
   my opinion that this record is exempt under section 25-19-105( c )( 1 ).
   20 I have Bates-stamped the records forwarded for my review, beginning with 001 and ending
   with 116.
   21 The records stamped 095 through 110, and 112 through 116, appear to be training
   certifications, which would likely not result in a clearly unwarranted invasion of personal privacy
   if disclosed. That is, I believe the custodian correctly identified them as non-exempt personnel
   records.
   22 See Racop v. Arkansas State Police, et al., 60CV-4192 (Circuit Court of Pulaski County,
   Arkansas, Sept. 9, 2015). Officer Mike Lira
   c/o Sgt. Shannon Jenkins
   Opinion No. 2018-007
   Page 8
   You do not object to the release of records pertaining to your "current file," or
   your more recent employment with the Benton County Sheriff's Office. But some
   of these records are likely exempt from disclosure:
   • The records stamped 001 through 008 are employee-evaluation
   records that may not have resulted in a final administrative
   resolution of the suspension or termination proceeding. If any such
   proceeding is ongoing, these documents are exempt under section
   25-19-105( c )(1 ). If the records are subject to disclosure, the names
   of co-employees who were also evaluated should likely be redacted.
   • The record stamped 040 is a personnel record with a discrete piece
   of information that should not be disclosed. Specifically, the street
   address appearing beside "Address Contact Notes" should be
   redacted under section 25-19-105(b)(13).
   • The records stamped 049 through 052 are employee-evaluation or
   job-performance records that did not form the basis of a suspension
   or termination. It is my opinion that these records are exempt under
   section 25-19-IOS(c)(l).
   • The record stamped 111 is an employee-evaluation or job-
   performance record that did not form the basis of a suspension or
   termination. It is my opinion that this record is exempt under section
   25-19-105(c)(l).
   Finally, the documents provided to my office were redacted by whiting-out
   information determined by the custodian to be exempt. You did not object to the
   documents' release on grounds that the redactions were improper, and I did not
   focus my review of the documents on that basis. However, I would note the surest
   way for a custodian to redact is to black out the exempt information, and then
   photocopy the redacted pages or scan them into a PDF document for disclosure.
   Sincerely,
   ~~-_,·/~7
   LESLIE RUTLEDGE
   Attorney General