Can a former Arkansas State Police trooper block release of his personnel and evaluation records in response to a FOIA request?

Plain-English summary

The Arkansas State Police received a FOIA request for the personnel file and separation records of a former employee. The custodian decided to release the records (with sensitive personal information redacted). The former employee, Patrick Claggett, objected and asked the AG to review under § 25-19-105(c)(3)(B)(i). He raised two grounds: (1) general privacy and (2) the absence of a "compelling public interest" in his evaluation records.

Attorney General Leslie Rutledge rejected both objections.

On privacy: Personnel records are subject to the Young v. Rice balancing test, which tips the scale in favor of disclosure. The objector bears the burden of showing a privacy interest greater than the public's interest. A general invocation of privacy does not meet that burden.

On compelling public interest in evaluation records: Records of "rank-and-file" public-safety employees, especially law enforcement, more easily meet the test. Where the misconduct involves rules aimed at conduct undermining public trust, compromising public safety, or honesty rules, AG opinions have repeatedly found a compelling public interest. The opinion did not review the specific records but said it had no reason to think the custodian's release decision was inconsistent with the FOIA.

The four-part evaluation-records test under § 25-19-105(c)(1) requires: (1) suspension or termination, (2) finality of that proceeding, (3) the records formed the basis for the decision, and (4) compelling public interest. Mr. Claggett did not contest the first three; he challenged only the fourth. The AG explained why, on these facts, that prong was likely met.

Currency note

This opinion was issued in December 2021. The Arkansas FOIA was significantly amended in 2023 with reforms affecting personnel and evaluation records. Verify the current text of § 25-19-105(b) and (c) and any AG opinions issued after the 2023 amendments before applying this analysis to a current request.

What this means for you

If you are a law enforcement officer facing release of your evaluation records

Based on this opinion, your job carries less FOIA shield than other public employees because of the heightened public interest in police accountability. A privacy objection alone is unlikely to succeed. To meaningfully resist release, you need to show that the specific records contain information beyond the routine performance evaluation: protected medical information, undercover-officer identity (§ 25-19-105(b)(10)), or material that does not relate to the misconduct in question.

If you are a police records custodian

Per this opinion, you can release evaluation records when all four parts of the test are met. The compelling-public-interest prong, which is the hardest one to assess, is more easily met for law enforcement than for other public employees. Document your reasoning: nature of the misconduct, public-safety implications, position of the officer.

If you are a journalist or civil rights attorney

This opinion is one of a long line affirming that law-enforcement disciplinary records often clear the FOIA's evaluation-records test. The opinion specifically points to violations of "rules aimed at conduct that could undermine the public trust, compromise public safety, or both" and "rules of conduct regarding honesty" as triggering the compelling-public-interest prong.

If you are a public employee in a non-law-enforcement role

The compelling-public-interest analysis shifts when the employee is not in a public-safety job. Per the AG's prior opinions, the test is harder to meet for non-public-safety roles. Your privacy interest does not get fundamentally bigger, but the offsetting public interest is less likely to clear "compelling."

Common questions

Q: What's a "compelling public interest" under the FOIA?
A: The leading commentators (Watkins, Peltz-Steele, and Steinbuch) listed three factors: (1) nature of the infraction, especially violations of public trust or gross incompetence; (2) existence of a public controversy related to the agency and its employees; and (3) the employee's position. A general interest in public-employee performance is not enough. A specific link between a controversy, an agency, and a serious breach of public trust usually suffices.

Q: Why does law enforcement get a higher compelling-interest finding?
A: Per the opinion, "the public has a special and weighty interest in the job performance of law enforcement officials due to their unique position of public trust." Officers exercise force, conduct stops, and have access to confidential information. Misconduct in those areas implicates the legitimacy of the police function itself.

Q: Can a former employee block disclosure with just a privacy objection?
A: Per Young v. Rice and Stilley v. McBride, the objector bears the burden of showing the privacy interest outweighs the public's interest, with the scale tipped in favor of disclosure. A bare privacy claim, without identifying the specific personal or intimate nature of the information at issue, will not carry that burden.

Q: Are there mandatory redactions even when records are releasable?
A: Yes. The opinion lists the standard redaction items: home address, personal phone, personal email, dates of birth, social security numbers, medical information, undercover-officer identity, drivers' license numbers, insurance coverage, tax/withholding information, payroll deductions, and banking information.

Q: What about evaluation records of someone who resigned, not was fired?
A: The opinion did not directly address that scenario. The four-part test requires "suspension or termination," so a voluntary resignation may not satisfy step one. AG opinions have addressed forced-resignation situations under the Thomas v. Hall framework; a clean voluntary resignation typically falls outside the test, leaving the records categorized differently.

Background and statutory framework

The Arkansas FOIA's personnel-vs-evaluation distinction is a longstanding source of difficulty. Personnel records are presumptively public, subject to a balancing test that favors disclosure. Evaluation records are presumptively closed, releasable only on the four-part test. Misclassification can mean either improper release or improper withholding.

Arkansas case law has filled in important gaps. Young v. Rice (1992) set up the personnel-records balancing test with the thumb on the scale toward disclosure. Stilley v. McBride (1998) put the burden on the objector. Thomas v. Hall (2012) defined evaluation records and approved the AG's "by or at the behest of the employer" framework. Pulaski County v. Arkansas Democrat-Gazette (2007) confirmed the rebuttable presumption of public-record status.

The opinion's distinctive contribution is the application to law-enforcement misconduct. Rank-and-file police officers operate in a public-trust context that elevates the public-interest side of every balancing test the FOIA contemplates. The result: a law-enforcement officer who has been suspended or terminated for a misconduct-related reason is unlikely to keep the records sealed under FOIA scrutiny.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure for personnel/evaluation records)

Cases:

• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) (rebuttable presumption of public-record status)
• Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992) (personnel-records balancing test)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (burden on objector)
• Thomas v. Hall, 2012 Ark. 66, 9-10, 399 S.W.3d 387, 392-93 (definition of evaluation records, "at the behest" test)

Source

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

Original opinion text

Opinion No. 2021-097
December 3, 2021

Patrick Claggett
c/o Tess Bradford, Legal Counsel
Arkansas State Police Headquarters
One State Police Plaza Drive
Little Rock, AR 72209

Dear Mr. Claggett:

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. 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.

You indicate that the Arkansas State Police ("ASP") has received a request under the FOIA for your personnel file and for any records relating to your separation from employment. The ASP records custodian has determined that the requested records are subject to release pursuant to the FOIA, with sensitive personal information redacted. You object to the release of your records on the grounds that their release would be an invasion of your privacy. Additionally, you have stated that you believe there is no "compelling public interest" in the release of your employee-evaluation records. You ask whether the custodian's decision to release the records is consistent with the FOIA.

RESPONSE

My duty under subdivision 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 the 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.

However, 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.

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. 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;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• 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;
• 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.

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.

When dealing with employment-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 discussed above. Because I have not seen the records at issue in this instance, I cannot definitively opine about either of these determinations.

However, I do not believe that your first stated objection to the records' release, invasion of privacy, would, as a general matter, be a legally sufficient reason to withhold records that are subject to disclosure under the FOIA. Personnel records of public employees are subject to disclosure except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Thus, as to your personnel records, the custodian must apply the balancing test for personnel records discussed above by determining (1) whether information in the records gives rise to a greater than de minimus privacy interest, and (2) whether that interest outweighs the public's interest in disclosure, keeping in mind that the balancing test is weighted in favor of disclosure. As the subject of the records, you bear the burden of showing that your privacy interest is greater than the public's interest in disclosure.

As to any records the custodian has classified as employee-evaluation records, such records cannot be released unless all four elements of the test for disclosure have been met. You do not dispute that the first three elements of this test have been met, but you maintain that the fourth element, a compelling public interest in the records' disclosure, has not been satisfied. Whether a compelling public interest in an employee's evaluation records exists is a question that must be answered in the first instance by the custodian after taking into consideration all of the surrounding facts and circumstances.

Various factors bear on this analysis. First, as noted above, an employee's rank in the hierarchy may bear on the strength of the public's interest in his performance. As this office has previously opined, however, a compelling public interest can be more easily found in the records of "rank-and-file" employees in public-safety positions, such as law enforcement.

Far more pertinent to the analysis may be the kind of misconduct that led to the disciplinary action taken against you. With respect to allegations of misconduct by law enforcement officers, this office has consistently opined that a compelling public interest likely exists in information reflecting a violation of department rules aimed at conduct that could undermine the public trust, compromise public safety, or both. Additionally, this office has consistently held that the violation of rules of conduct regarding honesty gives rise to a compelling public interest in disclosure of employee-evaluation records.

In sum, I have not reviewed the actual records at issue and, therefore, I cannot definitively opine on whether the custodian's decisions in this matter are consistent with the FOIA. However, your objection to the records' release on privacy grounds would generally not appear to serve as a sufficient reason for the custodian to withhold records that are otherwise subject to disclosure. Regarding your employee-evaluation records, the custodian has determined that the foregoing four-part test requires the release of these records. You maintain that the fourth element of the test, the compelling public interest prong, is not met. While I cannot specifically opine as to whether this element has been met, I can state that this office has consistently opined that the public has a special and weighty interest in the job performance of law enforcement officials due to their unique position of public trust. Thus, I have no reason to believe the custodian's determination regarding the release of your employee-evaluation records is inconsistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General