What does Arkansas's AG do when a former police officer wants his personnel and internal-investigation files kept private from a FOIA requester?

Plain-English summary

Raymond Jeffers, a former Rogers Police Department employee, asked AG Leslie Rutledge to review whether the Department's records custodian was correctly releasing records about him. The Department had received a FOIA request for "any and all personnel information related to or involving [Jeffers]; including but not limited to all internal investigations and correspondence related to such actions, as well as reason for termination" for the period January 1, 2020 to July 14, 2020. The custodian had identified responsive documents and intended to release them with redactions. Jeffers objected, citing what he believed was an invasion of his personal privacy and the privacy of an individual mentioned in the records. He also told the AG the Department had not given him certain information or answered his questions about the case file.

The AG explained the limits of her authority and declined to substantively decide the case. Two reasons.

First, the AG could not see the records. Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), the AG's review depends on the records the custodian provides. The custodian had not submitted records here. So the AG could only set out the legal standards.

Second, the AG cannot serve as a FOIA enforcement office. Her authority is "limited to reviewing the custodian's decision with respect to the release of personnel or employee evaluation records that the custodian has determined are responsive to the request." She has not been given the power to compel production of records, to act as a fact-finder in rendering opinions, or to enforce FOIA requests. The FOIA itself contains the enforcement mechanisms in Ark. Code Ann. § 25-19-107: a citizen who believes FOIA has been violated can ask the county prosecuting attorney to file criminal charges, or, if the prosecutor sees the matter as civil, the citizen can file a lawsuit in circuit court.

So Jeffers's complaint that the Department had withheld information from him went to a different forum. His objection to the release was something the AG would have addressed if she had the records, but without records, she could only recite the framework.

The framework the AG laid out is the same one that runs through the related ADH FOIA opinions (2020-036, 2020-038, 2020-039) and the broader Arkansas FOIA case law: personnel records under Ark. Code Ann. § 25-19-105(b)(12) are disclosable subject to the Young v. Rice balancing test for "clearly unwarranted invasion of personal privacy," while employee-evaluation records under Ark. Code Ann. § 25-19-105(c)(1) are disclosable only if all four prongs are met. Records "generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct" qualify as evaluation records under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387.

This opinion is useful for what it tells future readers about the limits of AG review. It does not decide a particular dispute; it teaches what the AG can and cannot do, and where else a citizen with a FOIA complaint should go.

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

What were Jeffers's two complaints, and where did each go?
The privacy objection to release was addressable in principle through the AG-review process, but only with the records in front of the AG. The complaint that the Department had not given Jeffers certain information was outside the AG's authority entirely; that goes to a county prosecutor (criminal track) or a circuit court lawsuit (civil track) under Ark. Code Ann. § 25-19-107.

What is the AG's actual review authority under § 25-19-105(c)(3)(B)(i)?
To review whether the custodian's decision regarding release of certain employee-related records is consistent with FOIA. The AG looks at the records the custodian determined are responsive, and at the legal classification and release tests the custodian applied. The AG opinion is advisory, persuasive in any subsequent litigation, but not self-executing.

What happens if the custodian refuses to send records to the AG?
The AG cannot compel production. The opinion explains that explicitly. The complainant's options are to wait for the custodian to release the records (and challenge release in circuit court if disagreed with), or to use the prosecuting-attorney or circuit-court routes in § 25-19-107.

What about the privacy interest of an unnamed person mentioned in the records?
The AG did not reach this question because no records were submitted. In the parallel Op. Att'y Gen. 2020-051 (Benton PD), the AG flagged third-party privacy as a McCambridge constitutional-privacy concern that custodians should weigh independently when records contain identifiable information about minors or other constitutionally protectable subjects.

What enforcement remedies does Ark. Code Ann. § 25-19-107 actually provide?
Two routes. First, criminal charges if the citizen believes FOIA has been violated, brought by the county prosecuting attorney. Second, a civil lawsuit in circuit court by the citizen if the prosecutor views the matter as civil. The civil route is the more common path.

Is the AG ever an enforcement office for FOIA?
No. Under § 25-19-105(c)(3)(B)(i), the AG renders opinions on classification and release decisions for employee-related records. There is no provision establishing a state compliance office for FOIA, and the AG is not authorized to enforce FOIA requests.

Background and statutory framework

Same framework as other 2020 ADH/police FOIA opinions: Ark. Code Ann. § 25-19-105(b)(12) (personnel records, Young v. Rice balancing), § 25-19-105(c)(1) (evaluation records, four-prong test), Thomas v. Hall (definition of evaluation records, including misconduct-investigation records), Pulaski County v. Arkansas Democrat-Gazette (rebuttable presumption), Stilley v. McBride (burden on resisting party).

The AG's review authority comes from § 25-19-105(c)(3)(B)(i). The limits on that authority were articulated in Op. Att'y Gen. 2005-236 and the opinions cited therein. Section 25-19-107 is the FOIA enforcement provision.

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) (employee-evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)
• Ark. Code Ann. § 25-19-107 (FOIA enforcement: criminal and civil)

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

Prior opinion referenced:

• Op. Att'y Gen. 2005-236 (limits of AG review authority)

Source

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

Original opinion text

Opinion No. 2020-037
July 22, 2020
Raymond B. Jeffers
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Becky Johnson, Executive Secretary
Rogers Police Department
1905 S. Dixieland
Rogers, AR 72758

Dear Mr. Jeffers:

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 Rogers Police Department ("Department") has received a request under the FOIA for "any and all personnel information related to or involving [you]; including but not limited to all internal investigations and correspondence related to such actions, as well as reason for termination." The time frame for the request January 1, 2020 to July 14, 2020. The records custodian has identified documents responsive to the request that she intends to release with redactions. You object to the records' release to the requester, citing what you believe to be "an invasion of [your] personal privacy," and an invasion of the personal privacy of an individual mentioned in the records to be released. You have also informed me that the Department has not provided you with certain information and has not answered your questions about the case file.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I must emphasize as a preliminary matter in this regard that my duty is limited to reviewing the custodian's decision with respect to the release of personnel or employee evaluation records that the custodian has determined are responsive to the request. I have not been given the power or duty to compel the production of records or, if necessary, to act as a fact-finder in rendering opinions concerning them. The FOIA has no provision establishing a state compliance office and does not authorize the Attorney General to enforce FOIA requests. The FOIA provides two methods of enforcement. First, if a citizen believes the FOIA has been violated, he may contact the county prosecuting attorney and request that criminal charges be filed against the custodian of public records. Second, if the prosecutor views the complaint as a civil matter, the citizen may file his own lawsuit in circuit court. Ark. Code Ann. § 25-19-107.

This opinion must therefore be limited to a discussion of the pertinent provisions of the FOIA bearing on employment-related records. Because I have not seen any records that would be responsive to the 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.

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 (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) apply.]

Sincerely,

LESLIE RUTLEDGE
Attorney General