Could a Little Rock police officer block release of his personnel and disciplinary records by objecting under the Arkansas FOIA?

Plain-English summary

Detective Brad Silas of the Little Rock Police Department received a FOIA notice from the City of Little Rock indicating that the City planned to release his personnel and disciplinary records, with sensitive personal information (address, date of birth, telephone number, social security number) redacted, and evaluation records withheld unless they formed the basis of a finalized suspension or termination. Silas objected and asked the AG, under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), whether the custodian's plan was consistent with the Arkansas FOIA.

Then-Attorney General Leslie Rutledge could not opine on releasability of any specific document (the office did not have the records in hand) but laid out the legal framework the custodian had to apply. The framework was identical to the one set out two days earlier in Op. 2020-063 (Withers): personnel records get the Young v. Rice balancing test under § 25-19-105(b)(12), with the scale tipped toward disclosure; evaluation records under § 25-19-105(c)(1) cannot come out unless all four prongs (suspension/termination, finality, basis, compelling public interest) are met; categorical redactions (date of birth, social security number, personal contact info, undercover-officer identifiers, etc.) apply on top of those tests.

The opinion's significance is that it transplanted the Withers framework, almost word for word, into the police-records context. There is no general "police officer" exemption under the Arkansas FOIA. LRPD officers' personnel files get the same Young v. Rice balancing as any other public employee. Op. 2021-003 became the controlling cross-reference for a wave of nearly identical FOIA review requests filed by LRPD officers and detectives in the days that followed (Ops. 2021-004 through 2021-010).

Currency note

This opinion was issued in 2021. 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

Is there a "police officer" exception under the Arkansas FOIA?
No general one. The undercover-officer protection at Ark. Code Ann. § 25-19-105(b)(10) shields specific identifying information for officers currently working undercover. Beyond that, police personnel records get the same Young v. Rice balancing test that applies to other public employees.

Could Silas block the release by objecting?
No. The opinion identified that under the Arkansas FOIA, the subject's subjective objection was irrelevant because the test was objective. The custodian had to weigh the public interest in disclosure against the privacy interest, with the scale tipped toward disclosure.

Why did the City withhold evaluation records absent suspension or termination?
Because § 25-19-105(c)(1) gates evaluation records behind a four-prong test. One prong is that the employee was suspended or terminated and there has been a final administrative resolution. Without that, the evaluation records cannot be released, regardless of the public interest.

The City's notice didn't mention the "compelling public interest" prong. Was that a problem?
The opinion noted that the City's framework, as written in the notice, was an acceptable shorthand so long as the full four-prong test was applied case by case. Custodians who use the City's shorthand should still apply all four prongs in their actual decision.

What disciplinary records would have been releasable?
Disciplinary-action records that are part of an officer's personnel file (records of formal discipline, corrective actions, etc.) generally fall within "personnel records" rather than evaluation records, and were releasable through the Young v. Rice balancing. Records generated during an internal investigation that detail the underlying conduct are evaluation records under Thomas v. Hall and gated by the four-prong test.

Did the requester's identity or motive matter?
Generally no. The opinion explained that under the FOIA the requester's subjective motive could not be the basis for a withholding decision. There is no generalized "harassment" exemption.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) gives the custodian, the requester, and the subject of certain employee-related records the ability to seek a non-binding AG opinion before records are released. The opinions are advisory but they shape custodian behavior in practice and frame the analysis if litigation follows.

The opinion drew the same two-track framework as Op. 2020-063:

1. Personnel records under § 25-19-105(b)(12). Released after Young v. Rice balancing (de minimis privacy interest gate, then weighing public interest, with categorical redactions layered on top).
2. Employee evaluation or job performance records under § 25-19-105(c)(1). The Thomas v. Hall, 2012 Ark. 66, definition: records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance on the job. Released only on (a) suspension or termination, (b) final administrative resolution, (c) basis, and (d) compelling public interest.

The Watkins, Peltz-Steele & Steinbuch treatise (THE ARKANSAS FREEDOM OF INFORMATION ACT, 6th ed. 2017) supplied the compelling-public-interest factors that AG opinions and courts had used: the nature of the infraction (especially violations of public trust or gross incompetence), the existence of a public controversy linking the agency, and the employee's position within the agency.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception, Young v. Rice balancing)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job-performance four-prong gate)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• 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

Cross-referenced AG opinions:

• Op. Att'y Gen. 2020-063 (Withers, January 5, 2021) (the framework opinion)
• Op. Att'y Gen. 2008-065 (compelling-public-interest factors)
• Op. Att'y Gen. 2018-039 (resignation does not equate to suspension or termination)

Source

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

Original opinion text

Opinion No. 2021-003
January 7, 2021
Brad Silas
STATE OF ARKANSAS
THE ATTORNEY GENEllAL
LESLIE RUTLEDGE
c/o City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Detective Silas:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the subject of the records request, 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 includes the notice you received from the City of Little Rock
stating that the City has received a request under the FOIA for your personnel and
disciplinary records. The City's custodian of records has determined that "this
information is part of your personnel record and is releasable" after redacting
"sensitive personal information such as address, date of birth, telephone number or
social security number." The City has also informed you that"[ e ]valuations are not
releasable unless they form the basis of a suspension or termination and only if they
have reached their final administrative resolution." You object to the release of the
records, and have asked for my opinion as to whether the custodian's decisions with
respect to the records is consistent with the FOIA.
RESPONSE
Because I have not seen any records the City has determined to 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. I can only set out the legal standards the custodian must apply
323 CENTER STREET. Su m : 200. LITTLE ROCK, ARK/\NS/\S 72201
TELEPHONE (501) 682-2007 • F/\X (501) 682-8084
INTERNET WEBSITE . http://www.ag.state.ar.us/ Brad Silas
Opinion No. 2021-003
Page 2
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. Properly classifying a record is critical so
that the appropriate test for disclosure can be applied. This is the responsibility of
the custodian in the first instance.
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 Little
Rock, which is a public entity and is subject to the FOIA. Moreover, the request
appears to pertain to public records. 1 Because the records are held by a public entity,
they are presumed to be public records,2 although that presumption is rebuttable.3
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.4 For purposes of the FOIA, these items can usually be
1 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 that constitute a record of the performance or lack of performance of official
functions ... carried out by a public official or employee .... " Ark. Code Ann. § 25-19-103(7)(A)
(Supp. 2019).
3 See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722
(2007) ("the presumption of public record status established by the FOIA can be rebutted if the
records do not otherwise fall within the definition found in the first sentence, i.e., if they do not
'constitute a record of the performance or lack of performance of official functions,"' citing Op.
Att'y Gen. 2005-095).
4 This office and the leading commentators on the FOIA have observed that personnel files usually
include: employment applications; school transcripts; payroll-related documents, such as Brad Silas
Opinion No. 2021-003
Page 3
divided into two mutually exclusive groups: "personnel records"5 or "employee
evaluation or job performance records."6 The test for whether these two types or
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.7 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. "8
While the FOIA does not define the phrase "clearly unwarranted invasion of
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; ce1tificates 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 Acr 205-06 (Arkansas Law Press, 6th ed.,
2017).
5 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following
shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of
personal privacy."
6 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all
employee evaluation or job performance records, including preliminary notes and other materials,
shall be open to public inspection only upon final administrative resolution of any suspension or
termination proceeding at which the records form a basis for the decision to suspend or terminate
the employee and if there is a compelling public interest in their disclosure."
7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
8 Ark. Code Ann. § 25-19-105(b )(12). Brad Silas
Opinion No. 2021-003
Page 4
personal privacy," the Arkansas Supreme Court, in Young v. Rice,9 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.10
The balancing test elaborated by Young v. Rice has two considerations the custodian
must take into account. 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. 11 If the privacy interest is
merely de minimis (that is, insignificant or trifling), then the public's interest in
disclosure easily outweighs the privacy interest. Second, if the information gives
rise to a greater than de minim is privacy interest, then the custodian must determine
whether that interest is outweighed by the public's interest in disclosure.12 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.13 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. 14
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.15
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.16
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
9 308 Ark. 593, 826 S.W.2d 252 (1992).
10 Watkins, et al., at 208.
11 Young, 308 Ark. at 598, 826 S.W.2d at 255.
12 Id., 826 S.W.2d at 255.
13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W .2d 125, 128 ( 1998).
14 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
16 Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. Brad Silas
Opinion No. 2021-003
Page 5
government for the general public.17 This ordinarily precludes the custodian from
considering the identity or any subjective motives of a requester when making the
determinations whether a record must be disclosed or withheld. 18
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 of the
items that must not be disclosed 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)(l3));
• 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, 2003-3 85);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194 ).
17 See Ops. Att'y Gen. 2019-04 7, 2018-061.
18 See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Att'y Gen. 2014-094 (noting that "neither
the Arkansas Legislature nor our appellate cou1ts have allowed custodians to consider the
subjective motive of the requester."). While the requester's subjective motive cannot be the basis
for the decision, it can be considered by the custodian to determine whether it supplies a previously
unseen objective public interest. Op. Att'y Gen. 2014-094 at n.8.
It should also be noted that the Legislature has not seen fit to include a generalized "harassment"
exemption to the release of otherwise disclosable employee-related records. Op. Att'y Gen. 2019-
047 (and opinions cited therein). Brad Silas
Opinion No. 2021-003
Page 6
b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define.19 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.20 This
exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct. 21
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).22
   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
   19 I will refer to this group of records as "employee-evaluation records."
   20 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.
   21 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
   22 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. Brad Silas
   Opinion No. 2021-003
   Page 7
   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.23
   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, 24 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 m the
   employee/employer relationship.25
   III. Application.
   When dealing with employee-related records, custodians must make two
   determinations in the first instance: (1) whether the records meet the definition of
   the two kinds of employment records discussed above; and (2) if so, whether under
   the specific circumstances, the FOIA requires the employment records be released
   based on the applicable test for disclosure. I have no information regarding the
   custodian's classification of the records at issue. Properly classifying a record is
   critical so that the appropriate test for disclosure can be applied.
   I must note that the custodian notified you that any personal information, such as
   your home address, personal telephone number, Social Security number, and the
   like, would be redacted from any disclosable personnel records. That decision is,
   in my opinion, consistent with the FOIA. Furthermore, the custodian stated that any
   employee-evaluation records would not be disclosed "unless they form the basis of
   a suspension or termination and only if they have reached their final administrative
   23 Watkins, et al., at 238-39 (footnotes omitted).
   24 Id. at 237 (noting that "[a]s 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").
   25 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. Brad Silas
   Opinion No. 2021-003
   Page 8
   resolution." As long as the other two prongs of the test set out above are also met,26
   that decision too would be consistent with the FOIA.
   With respect to your specific objection to the release of your personnel records, I
   am unable to address that as any resolution is very fact-intensive and is beyond what
   this office is able to do in the scope of a three-day opinion under the FOIA. Some
   judicial remedy may be available to you, but only a court has the authority to hear
   such evidence and fashion an appropriate remedy. 27
   Finally, as noted above, a FOIA requester's identity or motive for making the
   request is generally irrelevant to whether a record must be released. 28 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.29 The custodian's analysis cannot be based on a requester's subjective
   motive for wanting the record.
   Sincerely,
   ~:::=::-:_;:;:>- L. //?...£'~
   LESLIE RUTLEDGE
   Attorney General
   26 Supra text accompanying n.22.
   27 See Ark. Code Ann.§ 25-19-105(c)(3)(C) (Supp. 2019).
   28 Supra n.18.
   29 See Ops. Att'y Gen. 2018-087, 2018-061.