Was Little Rock's plan to release Mark Ison and other LRPD officers (group request)'s personnel and disciplinary records consistent with the Arkansas FOIA?

Plain-English summary

Mark Ison and a group of other LRPD officers received a FOIA notice from the City of Little Rock indicating that the City planned to release their personnel and disciplinary records, subject to redaction of sensitive personal information and to withholding of evaluation records absent finalized suspension or termination. Acting under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), Ison and the other officers in the group objected and asked the AG whether the custodian's plan was consistent with the Arkansas FOIA.

Then-Attorney General Leslie Rutledge declined to repeat the analysis. The request was virtually identical to an LRPD officer's request addressed in Op. Att'y Gen. 2021-003 (Silas, January 7, 2021), which had been issued days (or in some cases the day) earlier. The opinion incorporated Op. Att'y Gen. 2021-003 (Silas, January 7, 2021) by reference and enclosed it as the controlling analysis. The substantive holding (carried over from Op. 2021-003) was that the City's framework was generally consistent with the Arkansas FOIA. Personnel records get the Young v. Rice balancing test under § 25-19-105(b)(12). Evaluation records under § 25-19-105(c)(1) cannot come out unless the 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) apply on top.

This opinion is one of a January 2021 cluster in which the AG's office handled a wave of materially identical FOIA review requests by cross-referencing the police-personnel-records framework set out for Detective Brad Silas.

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

Why didn't the AG just consolidate all the requests?
Each subject of records files separately under § 25-19-105(c)(3)(B)(i). The AG has a statutory duty to respond to each, even when the analyses overlap. Cross-referencing a contemporaneous opinion is the office's efficient way of meeting both duties without rewriting the framework each time.

What did Op. 2021-003 actually decide?
That the City's planned release of police personnel records, with redaction of personal identifiers and withholding of evaluation records absent the four-prong test, was generally consistent with the FOIA. The 2021-010 opinion is, in substance, the same answer applied to each of the officers in this group.

Could the officers block 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 apply the Young v. Rice balancing on the merits, with the scale tipped toward disclosure.

Was there anything special about a group request from multiple LRPD officers?
No general police-officer exemption applies. Police personnel records get the same Young v. Rice balancing test as any other public employee. The narrow exception in § 25-19-105(b)(10) protects identifying info for officers currently working undercover, but does not blanket-exempt police records from disclosure.

Background and statutory framework

The "subject's right to AG review" at Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is a statutory check available to public employees facing the disclosure of their employment records. Cross-referencing a recent opinion lets the AG efficiently dispose of duplicate requests without re-litigating the same framework. The substance of the analysis for the Ison group is found in the cross-referenced Op. 2021-003; the present opinion's role is to put the AG's official acknowledgment of the group request on the record and to confirm that the framework applied without modification to each member.

Citations

Statutes:

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (subject's right to AG review)

Cross-referenced AG opinions:

• Op. Att'y Gen. 2021-003 (Silas, January 7, 2021) (controlling framework, enclosed)

Source

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

Original opinion text

Opinion No. 2021-010
January 8, 2021
Mark Ison, et al.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE R UTLEDGE
c/o City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Ladies and Gentlemen:
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 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
Your request for my opinion regarding the custodian's decisions as to the
classification and disclosure of your employment-related records, including your
objections to those decisions, is virtually identical to the request I responded to in
Op. Att'y Gen. 2021-003, published on Thursday, January 7, 2021. The legal
323 CENTER STREET. SurrE 200. LITTLE R OCK, ARKJ\NSJ\S 72201
T ELEPHO E (50 I) 682-2007 • F J\X (50 I) 682-8084
11 TERN ET WEUSITE • http://www.ag.stale.ar.us/ Mark Ison, et al.
Opinion No. 2021-010
Page 2
analysis and its application to your request consequently are the same as in that . . . prev10us opm10n.
Therefore, I will not repeat the opinion herein, but instead refer you to the enclosed
Opinion 2021-003 for the analysis and conclusions.
Sincerely,
.=:~-;~- L. //~Jf"fa
LESLIE RUTLEDGE
Attorney General
Enclosure STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2021-003
January 7, 2021
Brad Silas
c/o City of Little Rock Human Resources
500 West Markham, Suite l 30W
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 arc 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 thl'. release o!'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
lD Ci." rm STRll T. Sl IT! 200. LI !Tl.I ROCK. ARKA:'-;Si\S 722() I
Ti.l.1:1'110'\I. (501) 682-2007 • 1:,\X (501) (182-8084
INTLR'-1.r Wrns1T1 • hltp://wwll'.ag.sl<1lc.au1s/ Brad Silas
Opinion No. 2021-003
Page 2
to determine whether certain employee-related records must he 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 FOii\ 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 clements appear to be met. The request was made to the City of Little
Rock, which is a public entity and is subject to the FOii. Moreover, the request
appears to pertain to public records.1 Because the records are held by a public entity,
they arc presumed to be public records,2 although that presumption is rebuttablc.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 filcs.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 kepi 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 .... " /\rk. Code Ann.§ 25-19-103(7)(/)
(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 es ta bl ished by the FOIJ\ 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.
/\tt'y Gen. 2005-095).
•1 This office and the leading commentators on the [·'()IA 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 rccords"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 docs
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" arc 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 FOii\ docs 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; certificates of advanced training or education; and legal documents.
such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard .I. Peltz-Steele & Robert
Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th eel ..
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]crsonnel 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 terminati:
the employee and if there is a compelling public interest in their disclosure.'·
7 See, e.g., Ops. Att'y Gen. 2015-072, 99-14 7; Watkins, et al., at 202.
8 Ark. Code Ann.§ 25-19-105(b)(l2). 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, i r the information gives
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.12 Because
the exceptions must be narrowly construed, the person resisting disclosure bears the
burden or showing that, under the circumstances, his privacy interests outweigh the
public's interests.13 The fact that the subject of records may consider release or the
records an unwarranted invasion of personal privacy is irrelevant to the analysis
because the test is objcctive.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 or personnel records asks whether, as
an objective matter, the records in question shed light on the workings or
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.
11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 ( 1998).
1•1 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, e1 u/, 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.'7 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 )( 1 O));
• 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. 2019-047, 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 courts 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 disc losable 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 FOi/\ likewise does not define. 19 But the Arkansas
Supreme Court has adopted this office's view that the term refers to any records (I)
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: (I) 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
   1'1 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)(I); 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 111 the
   employee/employer rclationship.25
   Ill. Application.
   When dealing with employee-related records, custodians must make two
   determinations in the first instance: ( 1) whether the records meet the definition or
   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).
   2'1 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-filc' workers are at issue").
   25 CJ 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 mct,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,
   ~-c:~C:C;:>_ L. /}~7
   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.