Can a former Arkansas police officer block release of his disciplinary file under FOIA when his old department wants to give it to a requester?

Plain-English summary

Jamol L. Jones, a former Benton Police officer, exercised his right under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask the Attorney General whether his old department's custodian was correctly releasing records in response to a third party's FOIA request. The request sought "records, allegations of misconduct, and internal affairs investigative files" related to Jones's employment. The custodian had identified five responsive documents and intended to release them with redactions. Jones objected.

AG Leslie Rutledge ran the records through Arkansas's familiar two-track FOIA framework for employee-related records:

• Personnel records are everything employee-related that is not an evaluation record. They are released unless disclosure would be "a clearly unwarranted invasion of personal privacy" under the Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test (privacy interest greater than de minimis, balanced against public interest, with a thumb on the scale toward disclosure).
• Employee-evaluation or job-performance records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance (Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387). These are released only if all four of the following hit: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for that decision, and (4) there is a compelling public interest in disclosure.

Applying that framework:

The first record was an "Employee Change of Status Report," which the AG treated as a personnel record. The face of the document did not show personal or intimate information that would meet the "clearly unwarranted" privacy threshold. The custodian's planned release was consistent with FOIA. The AG flagged one technical concern: a number was written on the "Employee No." blank, and Ark. Code Ann. § 25-19-105(b)(11) makes "personal identification numbers" used for computer-security functions exempt. If that number actually keys access to computerized data, the custodian had to redact it before release. (Citing Op. Att'y Gen. 2016-031.)

The other four records were letters on Benton Police Department letterhead about a 2018 allegation and resulting employment action. The AG treated those as evaluation records under Thomas v. Hall. The custodian had concluded each prong of the four-part test was met (level of discipline, finality, basis for decision, compelling public interest), and the AG had no reason to second-guess that determination on the face of the records. Releasing the letters was consistent with FOIA.

The bottom line: the release went through, with the asterisk that the custodian had to verify whether the "Employee No." was a computer-security identifier and redact it if so.

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 is the Arkansas FOIA review the AG was conducting?
A custodian, requester, or subject of certain employee-related records can ask the AG, under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), to review whether the custodian's decision is consistent with FOIA. The AG reviews the records and the custodian's reasoning and issues an opinion. The opinion is advisory, but it carries persuasive weight in any later litigation.

What was the difference between 'personnel records' and 'evaluation records' for purposes of release?
Personnel records had a release-tipping-toward-disclosure default, with the Young v. Rice balancing test deciding close cases. Evaluation records were release-by-default only if the four-part test (suspension/termination, final resolution, records basis for the decision, compelling public interest) was met. The classification of any given document was a fact question for the custodian.

What is the 'compelling public interest' test for evaluation records?
The leading Arkansas FOIA commentary identified three factors: (1) the nature of the infraction leading to discipline (with concern about violations of public trust or gross incompetence), (2) the existence of a public controversy related to the agency, and (3) the employee's position within the agency. A general public interest in employee performance is not enough; there has to be a tie between a public controversy, the agency, and a specific employee's serious breach of trust.

Does the requester's identity or motive matter to whether records are released?
Generally no. The AG repeated the consistent rule that the requester's identity and subjective motives are irrelevant to whether a non-exempt public record must be released. The custodian's analysis is objective: do the records, on their face, shed light on the workings of government?

What gets redacted before release even if a record is otherwise disclosable?
The AG's opinion catalogued the standard redactions: personal contact information of public employees (§ 25-19-105(b)(13)), employee personnel numbers, marital status and dependent information, dates of birth, social security numbers, medical information, undercover law-enforcement-officer identifying information (§ 25-19-105(b)(10)), driver's license numbers and photocopies, insurance coverage, tax/withholding information, payroll deductions, and banking information.

Background and statutory framework

Arkansas's Freedom of Information Act treats personnel-related records under two parallel exemption schemes. Section 25-19-105(b)(12) exempts "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Section 25-19-105(c)(1) exempts "employee evaluation or job performance records, including preliminary notes and other materials," releasing them only after suspension or termination, final administrative resolution, basis-for-decision, and compelling public interest are all satisfied.

Personnel files typically include applications, school transcripts, payroll-related documents, transfer records, insurance forms, performance evaluations, recommendation letters, disciplinary-action records, leave requests, training certificates, and legal documents like subpoenas (per the John J. Watkins / Richard J. Peltz-Steele / Robert Steinbuch FOIA treatise, 6th ed. 2017).

The Young v. Rice balancing test and the Thomas v. Hall definition of evaluation records together govern most close calls. The AG's opinion reproduces both frameworks at length to give Jones (and any future readers) a roadmap for the same analysis.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (Supp. 2019) (undercover-officer information exempt)
• Ark. Code Ann. § 25-19-105(b)(11) (Supp. 2019) (personal identification numbers for computer security exempt)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information exempt)
• 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 procedure)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• 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 (definition of employee-evaluation records)

Prior opinions referenced:

• Ops. Att'y Gen. 2015-072, 2016-031, 2007-070, 2014-094, 2007-064, 2006-035, 2003-153, 2017-125, 2013-090, 2004-167, 2005-194, 2003-385, 98-126, 2008-065, 2019-047, 2018-061, 2018-087, 2018-125, 2012-014, 2011-107, 2016-055, 2001-112, 2001-022, 94-198, 2006-176, 2004-260, 2003-336, 98-001, 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, 93-055, 96-168, 99-147, 2019-036, 2001-080, 97-368

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2020-048
September 29, 2020
Jamol L. Jones
c/o Cissy Brown, Benton Police Department
114 South East Street, Suite 100
Benton, AR 72015

Dear Mr. Jones:

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 Benton Police Department has received a request under the FOIA for "records, allegations of misconduct, and internal affairs investigative files pertaining to [your former employment with the Benton Police Department]." You have attached several documents that the custodian has identified as responsive to the request and that she intends to release. You object to the release of these records and ask whether the custodian's decision to release the records is consistent with the FOIA.

RESPONSE

Based on the face of the records and applying the definitions and standards discussed below, it is my opinion that with the possible exception of one additional redaction, the custodian's decision to release the records as redacted is consistent with the FOIA.

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 Benton Police Department, 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, given that I have no information to suggest that the presumption can be rebutted, 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.

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 or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is 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 that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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. 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. 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. The fact that the subject of records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be released. Again, the test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld.

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 number and photocopy of driver's license (Ops. Att'y Gen. 2017-125, 2013-090);
• 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. 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.

The custodian identified five records as being responsive to the request. The first record provided for my review is a document entitled "Employee Change of Status Report." I am unaware of how the custodian classified this record. But from the face of the record, it is clear that this is your personnel record and that its disclosure would not "constitute a clearly unwarranted invasion of [your] personal privacy" (the test for the release of personnel records). Additionally, with one possible exception, it appears that the custodian has made the appropriate redactions to the record. A number is written on the blank for "[Employee] No." on this record. Be aware that, pursuant to Ark. Code Ann. § 25-19-105(b)(11) (Supp. 2019), records containing "personal identification numbers" used for computer-security functions are specifically exempt from disclosure under the FOIA. I have no information upon which to gauge whether this exemption applies to the "Emp. No." listed on this record. But if this number does provide access to computerized data, then the custodian must also redact this information prior to the records' release.

The remaining four records are letters on Benton Police Department letterhead concerning a 2018 allegation and some employment action. From the face of the records, it is clear that these records are properly classified as your employee-evaluation records based on the definition above. Moreover, the custodian has determined that each element of the four-prong test set out above has been met for the disclosure of employee-evaluation records, and I have no information that would support a reversal of that determination. Accordingly, as to the letters mentioned herein, it is my opinion that the custodian's decision to release the records is consistent with the FOIA.

In sum, with the possible exception of an additional redaction to one of the records, the custodian's decision to release the records in question appears consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General