Can a Little Rock police officer block FOIA release of his 2017 disciplinary records while his appeal is still pending in circuit court?

Plain-English summary

Lieutenant Zachary Farley of the Little Rock Police Department (LRPD) asked AG Leslie Rutledge to block release of his disciplinary records. The LRPD had received a FOIA request for "records relating to [Farley] within the last 60 days." The custodian had determined the records were releasable. Farley pointed out that the disciplinary action documented in the records (from 2017) was the subject of an active appeal in Pulaski County Circuit Court. He argued the records were exempt from disclosure while the litigation was pending.

The AG split her response. On the specific records, she could not opine because Farley had not submitted them to her office. On the pending-litigation argument, she rejected it directly: the existence of a pending appeal of the underlying disciplinary action is not a sufficient basis for reversing the custodian's release decision.

The reasoning is structural. Arkansas FOIA's exemptions are statutory. Ark. Code Ann. § 25-19-105(b)(12) covers personnel records subject to the Young v. Rice balancing test. Section 25-19-105(c)(1) covers evaluation records subject to the four-prong release test. There is no "pending litigation about the underlying discipline" exception to either. A court appeal might delay the finality of the disciplinary action itself, but the records documenting that action remain public records governed by the standard FOIA framework.

The four-prong test for evaluation records does have a "final administrative resolution" prong (Ark. Code Ann. § 25-19-105(c)(1)). The opinion does not say whether the 2017 disciplinary action had reached final administrative resolution before the court appeal began. If it had, the appeal does not undo finality for FOIA purposes; finality is administrative, and a court appeal is a different proceeding. If administrative resolution was still pending, that would be a different question, and the four-prong test might not be met.

For Farley specifically, the AG could not classify or test the records without seeing them. She had to rely on the custodian's judgment. The custodian had decided release was appropriate, and Farley's pending-appeal argument did not, by itself, defeat that judgment.

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

Why doesn't a pending court appeal block release?
Because Arkansas FOIA exemptions are statutory, and "pending appeal of underlying discipline" is not on the list. The FOIA's framework treats the records as public records subject to the personnel/evaluation tests. A court appeal of the disciplinary action runs in a separate forum on a separate timeline and does not change the records' status under FOIA.

What about the four-prong test's 'final administrative resolution' requirement?
That prong looks at whether the agency's internal disciplinary process has concluded, not whether subsequent court litigation has finished. If the LRPD had reached final administrative resolution of Farley's 2017 discipline before he filed his court appeal, the prong was satisfied. The court appeal is a separate, post-administrative process.

Could Farley argue the records are 'preliminary' because of the pending appeal?
The four-prong test specifically includes "preliminary notes and other materials" within the evaluation-records category. The "final administrative resolution" prong is about the discipline being finalized administratively, not about all related litigation having concluded. So the preliminary-records argument does not fit.

Why couldn't the AG just look at the records directly?
Because Farley did not provide them. The AG's review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) depends on the records the custodian provides. With no records to review, the AG can only set out the legal framework and address the specific objection raised.

What other arguments might Farley have?
Privacy interests in personal information could trigger standard redactions. Constitutional-privacy concerns under McCambridge v. City of Little Rock could apply if the records contain information about minors or other constitutionally protectable subjects. But none of these would block release entirely, just require redaction. The AG's framework does not contain a categorical "pending litigation" exception.

What does this opinion mean for police accountability transparency?
That officers cannot delay FOIA disclosure of disciplinary records by appealing the underlying discipline to court. The court appeal proceeds on its own track. The records about the discipline remain governed by the FOIA framework, and the custodian's release decision controls (subject to AG review and judicial enforcement under § 25-19-107).

Background and statutory framework

Arkansas FOIA's two-track framework for employee records is set out in Ark. Code Ann. § 25-19-105(b)(12) (personnel records) and § 25-19-105(c)(1) (evaluation records). The four-prong release test for evaluation records includes a "final administrative resolution" requirement, which is keyed to administrative process, not to any subsequent litigation in court.

Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007), establishes the rebuttable presumption that records held by a public entity are public records. The pending-litigation argument does not rebut that presumption. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplies the personnel-records balancing test. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, supplies the evaluation-records definition. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), puts the burden on the person resisting disclosure.

The AG's review authority under § 25-19-105(c)(3)(B)(i) covers consistency of the custodian's decision with FOIA, on the records the custodian provides. The AG cannot expand statutory exemptions to cover situations the legislature has not specifically addressed.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information)
• 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) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2020-029
June 23, 2020
Lieutenant Zachary Farley
Little Rock Police Department
700 West Markham
Little Rock, AR 72201-1428

Dear Lt. Farley:

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). 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 Little Rock Police Department has received a request under the FOIA for records relating to you within the last 60 days. The custodian has determined that the requested records are releasable. You state that the information the City plans to release "includes personnel records regarding disciplinary action taken against [you] in 2017." You further state that this information regarding disciplinary action is part of an active appeal in the Pulaski County Circuit Court; and you express the belief that the information is exempt from disclosure while this litigation is pending.

RESPONSE

Because I have not seen any records that would be responsive to the instant 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 "employee evaluation or job performance" 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. However, I can state that your specific objection to the release of information is not a sufficient basis for reversing the custodian's decision.

DISCUSSION

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases apply.]

Sincerely,

LESLIE RUTLEDGE
Attorney General