When a former police officer's personnel file is requested under FOIA, can the city release the suspension review along with redacted records, and which items must stay private?

Plain-English summary

The Brookland Police Department got a FOIA request for a former officer's personnel file, including correspondence between the officer and the department and any official letters about his status. Chief Jon Moore decided to release the records with redactions. The officer objected. Chief Moore asked the AG to review the redacted release.

Attorney General Leslie Rutledge said the release was mostly consistent with FOIA, but with several corrections.

What was correctly released: the "Employee Conduct Review" document. It explained the suspension, so it was an employee-evaluation record under § 25-19-105(c)(1). The four-part release test was met (suspended/terminated; finality; basis; compelling interest, given the public-safety stakes for police).

What needed to stay back:

• Five Facebook posts. Their release would be a clearly unwarranted invasion of personal privacy under the personnel-records balancing test. The Employee Conduct Review already describes their general nature, so the public's interest in the underlying conduct was sufficiently met without releasing the posts themselves.
• Three Performance Evaluations / Performance Reviews that did not appear to be the basis for the suspension. Under the four-part evaluation-records test, if those reviews did not form the basis for the discipline, they cannot be released.

What needed extra redaction before release:

• The "Marital" section of the Personal History Statement (marital status and family-life information).
• Height and weight on the Personal History Statement, unless those values are a condition of initial or continuing employment.
• Personal financial items (numbers 25 and 28) on the Personal History Statement.
• Employee ID number on Performance Reviews, but only if the ID provides access to computerized data (then it falls under the § 25-19-105(b)(11) personal-identification-number exemption).

What this means for you

If you are a police chief, sheriff, or municipal HR director

This opinion is a useful operational checklist for redacting an officer's personnel file before release.

1. Pull every document and classify it: personnel record, employee-evaluation record, or both ("mixed record").
2. For evaluation records, run the four-part test under § 25-19-105(c)(1). If a particular evaluation did not form the basis for the suspension or termination, you cannot release it.
3. For personnel records, run the Young v. Rice balancing test. The thumb is on the scale for disclosure, but high-privacy items like off-duty social-media posts can survive review even when the broader file is released.
4. Apply the standard redaction list every time: personal contact info, employee personnel number, marital status and dependents, DOB, SSN, medical info, undercover identifying info, driver's license, insurance coverage, tax/withholding, payroll deductions, banking info. This opinion adds height/weight (unless tied to a job condition), and Personal History Statement marital and personal financial sections.

If you are an Arkansas police officer (or other safety-sensitive public employee)

Your suspension or termination notice that explains the reason will usually be released after final resolution, especially in your role. But the AG was willing to keep your off-duty Facebook posts out of the released file once their general subject matter was already covered in the formal Employee Conduct Review. That distinction matters: the public interest is in the agency's official action and basis, not in the underlying social-media artifacts when they have been adequately summarized in evaluative records.

Past performance reviews that had nothing to do with your suspension are also protected. The four-part test in § 25-19-105(c)(1) is exclusionary: only the records that formed the basis come out.

If you are a FOIA requester or journalist

You can ordinarily get the document that explains the suspension reasons (here, the "Employee Conduct Review"). You will probably not get unrelated performance reviews and you should not expect off-duty social-media posts from the personnel file. Those latter items have been adequately addressed in the evaluation document the city is releasing.

If a custodian withholds the formal evaluation document while releasing only routine personnel records, push back: the four-part test usually mandates release of the disciplinary basis once the discipline is final.

Common questions

Q: Why are Facebook posts in a personnel file treated differently than the Employee Conduct Review?
A: The Conduct Review is created by the employer to evaluate the employee, so it is an evaluation record under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The Facebook posts themselves are personnel records; their disclosure runs through the Young v. Rice balancing test. The AG decided that since the Conduct Review already describes the general nature of the posts, public interest in the underlying conduct is satisfied, and the personal-privacy interest in the actual posts wins.

Q: Why withhold past performance reviews?
A: Because § 25-19-105(c)(1) only allows release of evaluation records that "form a basis for the decision to suspend or terminate the employee." If a 2018 performance review had nothing to do with the 2021 suspension, that 2018 review remains exempt no matter how related it might seem.

Q: Why is height and weight redacted unless a job condition?
A: Op. Att'y Gen. 2015-008 (cited here) treats officer height and weight as personnel data with a meaningful privacy interest unless the agency has a height/weight requirement that ties those numbers to fitness for duty.

Q: Is an employee ID always redactable?
A: Only if it is a "personal identification number" used for computer-security functions, which is specifically exempt under § 25-19-105(b)(11). A bare employee number used for HR record-keeping but with no computer-system role can sometimes be released.

Q: What is a "mixed record"?
A: A record that combines (a) more than one person's evaluation, (b) at least one person's evaluation and at least one other person's personnel record, or (c) more than one person's personnel record. Mixed records require multiple-track analysis: each subject's content is evaluated under the rule that fits.

Background and statutory framework

Same FOIA framework as the related opinions in this series:

• Personnel records under § 25-19-105(b)(12): exempt to the extent disclosure is a clearly unwarranted invasion of personal privacy. Test is Young v. Rice's two-step balancing.
• Employee evaluation records under § 25-19-105(c)(1): exempt unless all four parts of the test are met (level of discipline, finality, basis, compelling public interest).

Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines an evaluation record as one (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details performance or lack of performance.

Specific items expressly exempt:

• § 25-19-105(b)(10): undercover law enforcement officer identifying information.
• § 25-19-105(b)(11): personal identification numbers used for computer-security functions.
• § 25-19-105(b)(13): personal contact information of public employees (personal phone, email, home address).

Items the AG has consistently said must be redacted from any release: marital status and dependents, dates of birth, Social Security numbers, medical information, driver's license number, insurance coverage, tax and withholding info, payroll deductions, banking info. This opinion adds height and weight (unless a job condition) and Personal History Statement marital and personal financial sections.

The custodian-opinion procedure is at § 25-19-105(c)(3)(B)(i).

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(11), (b)(12), (b)(13) (exemptions)
• 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
• Op. Att'y Gen. 2015-003 (marital information redaction)
• Op. Att'y Gen. 2015-008 (officer height and weight)
• Ops. Att'y Gen. 2005-113, 2001-080, 90-295 (personal financial information)
• Op. Att'y Gen. 2019-066 (employee ID redaction)
• Op. Att'y Gen. 2020-001 (records of suspension reasons as evaluation records)

Source

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

Original opinion text

Opinion No. 2021-090
October 26, 2021
Jon Moore, Chief of Police
Brookland Police Department
409 Holman Street
P.O. Box 7
Brookland, AR 72417
Dear Chief Moore:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian of the requested
records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 Brookland Police Department
("Department") has received a request under the FOIA for the personnel file of a
former employee of the Department, to include copies of correspondence between
the former employee and the Department as well as official letters regarding the
former employee's status with the Department. You have attached several
documents that you believe are responsive to the request and that you intend to
release with redactions. The subject of the records objects to this release. You ask
whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

The custodian has determined that the records at issue are subject to release after
making certain redactions. Having reviewed the records, it is my opinion, based on
the definitions and standards discussed below, that the custodian's decision to
release them as redacted is mostly, but not entirely, consistent with the FOIA. I
have identified several personnel records that do not meet the test for release, several
additional pieces of information that need to be redacted, and several records that
should not be released if they did not form a basis for the employee's suspension.

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 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.

Additionally, some employee-related records constitute "mixed records," i.e.,
records that constitute (1) more than one person's evaluation, (2) at least one
person's evaluation and at least one other person's personnel record, or (3) more
than one person's personnel record.

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.

Having reviewed the records, it is my opinion that with some exceptions they are
subject to release, with redactions, under the test for the disclosure of personnel
records discussed above. The record entitled "Employee Conduct Review," which
states the basis for the employee's suspension, is an employee-evaluation record.
In my opinion, this record meets the test for release applicable to that type of record.

However, the five Facebook posts must be evaluated under the test for personnel
records. I believe the balance tips in favor of nondisclosure of these posts, given
their content. While there may be some detectable public interest in the content, I
believe this interest is satisfied by the release of the "Employee Conduct Review,"
which describes the general nature of the posts. It is my opinion that the custodian's
decision to release the posts themselves is inconsistent with the FOIA.

Additionally, the three records entitled "Performance Evaluation" and "Performance
Review" qualify as employee-evaluations. And it seems unlikely, from the
face of these records, that they formed the basis for the employee's suspension. If
that is in fact the case, then the test for release is not met and the custodian's decision
to release these "Performance" records is inconsistent with the FOIA.

Moreover, it is my opinion that the following additional redactions must be made
from the records prior to their release:

• The entire section on the "Personal History Statement" entitled "Marital"
  because it reveals information about marital status and family life;
• Height and weight information on the Personal History Statement, unless that
  information is a condition of initial or continuing employment;
• Items 25 and 28 on the Personal History Statement, reflecting personal
  financial information;
• Employee ID number on Performance Reviews, but only if they aid in
  providing access to computerized data.

In sum, it is my opinion that the custodian's decision is not entirely consistent with
the FOIA. The additional redactions listed above must be made prior to the records'
release. And the exempt records identified above must be removed prior to releasing
the remaining records, as redacted consistent with this opinion.

Sincerely,
LESLIE RUTLEDGE
Attorney General