If a FOIA request for an Arkansas state trooper's personnel file looks politically motivated, can the custodian deny it on that ground, and what should be redacted?

Plain-English summary

Robert Gault, an Arkansas State Police employee, learned that ASP had received a FOIA request for his personnel file. The records custodian decided to release some records and identified specific items to be withheld: medical records and information, personal contact information, home address and phone, date of birth, Social Security number, marital status, and "employee evaluation or job performance records that did not result in a suspension or termination."

Gault objected on the ground that the request was politically motivated, and asked the AG whether the custodian's decision to release was consistent with FOIA.

Attorney General Leslie Rutledge gave two answers:

1. The custodian's planned redactions are generally consistent with FOIA. They match the standard items the AG has consistently said should be withheld from personnel records.
2. The objection ("the requester is politically motivated") is not a legally sufficient reason to withhold otherwise releasable records. A FOIA requester's identity or motive for making a request is generally irrelevant.

The AG could not opine on the specific releasability of any document because she did not have copies. The custodian still has to do the per-document classification (personnel record vs. evaluation record) and apply the right test in each case.

What this means for you

If you are a public employee whose records are about to be released

A subjective belief that the requester is being political, vindictive, or out for personal information will not stop release. The Arkansas FOIA balancing tests are objective. The two questions the law asks are:

• Does the document, considered objectively, shed light on the workings of government for the general public?
• Does its release amount to a clearly unwarranted invasion of personal privacy?

Neither question has an "and was the requester nice about it" prong. The AG cited a chain of opinions making this point: 2018-087, 2018-061, 2014-094, 2019-036, 2018-125, 2012-014, 2011-107.

What you can do is push for thorough redactions. The standard list of items that must be redacted is long: home address, personal phone numbers, personal email, employee personnel number, marital status and dependents, DOB, SSN, medical information, undercover-officer identifying info, driver's license, insurance, tax info, payroll deductions, and banking info. Make sure your custodian applies all of these.

If you are a records custodian

Two operational reminders:

1. Don't deny based on perceived motive. A request is a request. Document the redaction list and stay objective. The opinion explicitly notes that the legislature has not enacted a "harassment" exemption.
2. Per-document classification matters. Each document needs to be classified as a personnel record (Young v. Rice balancing) or an evaluation record (four-part test). The AG cannot help you on documents she has not seen, and a list of categories to be withheld does not relieve the custodian's duty to do the per-document analysis. Pages within a single file may need different treatments.

If you are a FOIA requester whose request was challenged as politically motivated

Your motive is generally irrelevant. The AG's letter is essentially a green light to the custodian to release based on the standard rules. If a custodian denies because of perceived motive, that is itself an FOIA error.

Common questions

Q: What did the AG actually decide?
A: That the custodian's general redaction list (medical, personal contact info, home address, DOB, SSN, marital status, and non-disciplinary evaluation records) is consistent with FOIA. And that the requester's political motivation does not change the analysis.

Q: Why couldn't the AG decide more?
A: Because she had not seen the actual records ASP planned to release. Without seeing each document, she could not apply the correct test (personnel-record vs. evaluation-record) on a per-record basis. That is the custodian's job in the first instance.

Q: Does the requester's identity ever matter?
A: Only marginally. A footnote in the opinion notes that while the requester's subjective motive cannot drive the decision, it can sometimes be considered if it supplies a previously unseen objective public interest. That is a narrow exception. The default rule is "motive is irrelevant."

Q: Why aren't evaluations that did not lead to discipline disclosable?
A: Because the four-part test in § 25-19-105(c)(1) requires (a) the employee to have been suspended or terminated and (b) the specific records to have formed the basis for that discipline, plus finality and compelling interest. If a performance evaluation was not the basis for any suspension or termination, the first prong is not met and the record is not releasable.

Q: What about evaluations that DID lead to discipline?
A: They go through the full four-part test. The custodian, not the AG, runs it.

Background and statutory framework

Standard Arkansas FOIA framework (§ 25-19-101 et seq.):

• Personnel records (§ 25-19-105(b)(12)) are released under the Young v. Rice two-step balancing test, with the scale tipped toward disclosure. Standard redactions apply.
• Evaluation or job-performance records (§ 25-19-105(c)(1)) are released only if all four prongs are met (level of discipline, finality, basis, compelling public interest). Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines what counts as an evaluation record.
• Per-document classification by the custodian is required.
• Requester motive is generally irrelevant, per a long line of AG opinions.
• Subject objection is not by itself a basis for withholding, because the test is objective.

The custodian-opinion review under § 25-19-105(c)(3)(B)(i) is bounded to a particular custodian decision; the AG cannot review hypothetical or undecided issues.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• Pulaski Cty. v. Ark. 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
• Ops. Att'y Gen. 2019-036, 2018-125, 2018-087, 2018-061, 2014-094, 2012-014, 2011-107 (requester motive irrelevant)
• Op. Att'y Gen. 2019-047 (no harassment exemption)

Source

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

Original opinion text

Opinion No. 2021-076
September 22, 2021
Robert N. Gault
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Katlyn Nelson, Legal Support Specialist
Arkansas State Police
1 State Police Plaza Drive
Little Rock, AR 72209
Dear Mr. Gault:

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.

You indicate that the Arkansas State Police ("ASP") has received a request under
the FOIA for your personnel file. The records custodian has determined that some
records in your personnel file are subject to disclosure but that certain information
and records contained in the file cannot be released. Specifically, the custodian has
identified the following as being exempt from disclosure: "medical records/medical
information"; "personal contact information"; "home address, home telephone
number, and date of birth"; "social security number"; "marital status"; and
"employee evaluation or job performance records that did not result in a suspension
or termination." You object to the release of any records from your personnel file
on the grounds that the request is politically motivated, and you ask whether the
custodian's decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My duty under subsection 25-19-105(c)(3)(B) is to state whether the custodian's
decision as to the release of "personnel or evaluation records" is consistent with the
FOIA. Because I have not seen any records that ASP 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 state, however, that the custodian's decision
as to what information must be redacted appears to be generally consistent with the
FOIA.

I will 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. 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 ASP, 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.

[Two-step Young v. Rice balancing test as discussed in companion opinions.]

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;
marital status of employees and information about dependents; dates of birth; Social
Security numbers; medical information; information identifying certain
undercover law enforcement officers (Ark. Code Ann. § 25-19-105(b)(10));
driver's license number and photocopy of driver's license; insurance coverage; tax
information or withholding; payroll deductions; and banking information.

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).

[Compelling-interest commentary discussion as in companion opinions.]

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 kind 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 any particular records from your personnel file.
Properly classifying a record is critical so that the appropriate test for disclosure can
be applied.

While I cannot opine on the release of any specific records here, I will note that the
custodian has determined that your medical records and medical information,
personal contact information, home address, home telephone number, date of birth,
Social Security number, and marital status must be redacted from any releasable
records. That decision is, in my opinion, consistent with the FOIA. Furthermore,
the custodian has stated that "any employee evaluation or job performance records
that did not result in a suspension or termination" would not be subject to disclosure.
That decision is also consistent with the FOIA, though I will note that your
employee-evaluation records are not subject to release unless the other three prongs
of the test set out above are met as well.

Finally, the objection you have raised is not a legally sufficient reason to withhold
the records at issue. As noted above, a FOIA requester's identity or motive for
making the request is generally irrelevant to whether a record must be released.
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. The custodian's analysis cannot be based on a requester's
subjective motive for wanting the record.

Sincerely,
LESLIE RUTLEDGE
Attorney General