Can a city withhold a police chief's suspension letter from public records when other related records have already been released?

Plain-English summary

Harrison City Attorney Grant Ragland asked whether the city's records custodian was acting consistently with FOIA when he proposed to release some records responsive to a citizen-complaint FOIA request but withhold two letters from the Chief of Police. The chief's letters were sent to two officers who were the subjects of the citizen complaint, informing them of their suspensions and giving the reasons.

The AG found the custodian's split decision only partly consistent with FOIA:

• Releasing the other records (which the custodian classified as employee-evaluation records relating to the officers) was consistent with FOIA, assuming the suspension was final and the custodian found a compelling public interest. Nothing in the request suggested otherwise.
• Withholding the chief's two letters did not look right. The AG had repeatedly opined that letters from a supervisor recounting the reasons for an employee's suspension or termination are themselves employee-evaluation records and meet the disclosure test once discipline is final and there is a compelling public interest. The city had not specified an "allowable exception" to support keeping them out, so the AG could not definitively review the custodian's logic, but on their face the letters appeared to be disclosable.

The opinion is one of the cleanest articulations of how Arkansas FOIA distinguishes "personnel records" (subject to a privacy balancing test) from "employee-evaluation records" (subject to the four-part discipline/finality/basis/compelling-interest test).

Currency note

This opinion was issued in 2020. 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.

Common questions

Q: What is the four-part test for releasing employee-evaluation records?
A: Under Ark. Code Ann. § 25-19-105(c)(1) the records can come out only if (1) the employee was suspended or terminated, (2) there has been a final administrative resolution of that suspension or termination, (3) the records formed a basis for the discipline decision, and (4) the public has a compelling interest in their disclosure.

Q: How does "compelling public interest" get measured?
A: The leading commentators (Watkins, Peltz-Steele, and Steinbuch) lay out three factors: the nature of the infraction (especially violations of the public trust or gross incompetence), whether there is a public controversy involving the agency, and the employee's position. A general interest in public-employee performance is not enough; a specific link between a controversy, the agency, and the employee's actions is.

Q: Why are letters from the police chief themselves considered evaluation records?
A: Because they were created by an employer, were used to evaluate (and discipline) employees, and detailed the employees' performance. Op. Att'y Gen. 2019-022, 2014-052, 2013-155, and 2012-077 had previously reached the same conclusion about supervisor letters announcing suspensions or terminations.

Q: What if the custodian had cited a specific exception?
A: Then the AG could have reviewed it. The opinion's main complaint is that the city said only "allowable exception" without saying which one. Without a specified exception, there was nothing to test against the records' face.

Q: Does the rank of the employee matter?
A: Yes. The commentators noted that compelling public interest is "more likely to be present when a high-level employee is involved." A police chief signing the suspension letters about subordinates does not put the chief himself in the spotlight, but the rank of the officers being disciplined would still feed into the public-interest analysis.

Background and statutory framework

The Arkansas Freedom of Information Act treats personnel files as containing two distinct categories of records, each with its own disclosure standard.

Personnel records (any record other than an evaluation/job-performance record that pertains to an individual employee) are open to public inspection unless disclosure would be "a clearly unwarranted invasion of personal privacy" under Ark. Code Ann. § 25-19-105(b)(12). The Arkansas Supreme Court in Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992), set out a two-step balancing test: first, whether the information is personal or intimate enough to give rise to a more-than-de-minimis privacy interest; second, whether that interest is outweighed by the public's interest in disclosure. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998), put the burden on the person resisting disclosure.

Employee-evaluation or job-performance records are governed by the more restrictive § 25-19-105(c)(1) test, with the four prongs above. The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-part definition: records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance.

Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the custodian, requester, or subject of an employee-related record can ask the AG whether the custodian's release decision is consistent with FOIA. That is the procedural posture of the opinion.

The presumption that records held by a public entity are public records (Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007)) was satisfied here, leaving the analysis to whether any exemption barred disclosure.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review of custodian decision)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

Opinion No. 2020-001
January 7, 2020

Grant Ragland, Esq.
Harrison City Attorney
324 W. Ridge Avenue
Harrison, AR 72601

Dear Mr. Ragland:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the custodian of records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 the Harrison Police Department has received a request under the FOIA for records regarding a citizen's complaint. You have attached several documents that you have identified as responsive to the request and that the custodian, on your advice, intends to release. However, you have also advised the custodian that letters from the Chief of Police to the subjects of the citizen's complaint are not disclosable as being "subject to an allowable exception under the FOIA." You do not specify the exception. One of the subjects of the complaint objects to the disclosure of the records, though you have not relayed any specific objection in this regard. You ask whether the custodian's decision to release the records, while withholding letters written by the Chief of Police, is consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision may only be partly consistent with the FOIA. The custodian's decision to release the records that have been identified for release appears to be consistent with the FOIA. But I must question the decision to withhold the two letters from the Police Chief. I cannot definitively opine in that regard, as I have not been provided with the "allowable exception" the custodian is relying upon to withhold the letters. However, the letters appear on their face to be disclosable.

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 to be met. The request was made to the City of Harrison, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. Accordingly, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure.

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 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. In the instant case, the custodian appears to have determined that the records at issue are the employee-evaluation records of the personnel who were the subject of the citizen complaint. I cannot say that this determination is inconsistent with the FOIA. Accordingly, I will limit my discussion to the definitions and standards of records of that type.

The relevant exception to disclosure of public employee-related records is for "employee evaluation or job performance records," which the FOIA 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 exception 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).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the 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 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.

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, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

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.

Having reviewed the records the custodian intends to release, it is my opinion that the custodian has correctly classified the records as the employee evaluations of the subjects of the citizen's complaint. With regard to the records' disclosure, you state only that the records satisfy the "level of discipline" and the "basis" prongs of the test. But I take it that the suspension decision is final and that the custodian has also determined there is a compelling public interest in disclosure. In that light, and based on the face of the records, the custodian's decision to release those records that have been identified for release appears to be consistent with the FOIA. I have not been provided with the objecting employee's specific objections to disclosure, and I have no clear basis to say the custodian's decision to release those specific records is inconsistent with the FOIA.

However, I must question the custodian's decision to withhold letters written by the Chief of Police to each of the subjects of the citizen's complaint, informing them of their suspensions and the reasons for the suspensions. This office has consistently opined that letters like these, which recount the reasons for an employee's suspension (or termination), constitute employee-evaluation records. And from the face of the records, it would seem that the letters at issue meet the above test for disclosure.

You state (without elaboration) that these records are not disclosable based on an unspecified "allowable exception." I cannot definitively opine on the custodian's decision to withhold the two letters from the Police Chief (which on their face appear to be disclosable) without a greater or clearer indication of what this "allowable exception" is that would allow the letters to be withheld. However, the letters appear on their face to be disclosable.

Sincerely,

LESLIE RUTLEDGE
Attorney General