Can a sheriff's office release internal investigation records that led to officer firings and forced resignations under Arkansas's FOIA?

Currency note

This opinion was issued in 2013. 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.

Plain-English summary

The Washington County Attorney asked whether a records custodian could release internal investigation files for four law enforcement officers under Arkansas's FOIA, after a sheriff's office internal investigation led to one officer's suspension and three others' forced resignations. The custodian had classified the records as "employee evaluation or job performance records" and found a compelling public interest in disclosure.

The Attorney General agreed the records were properly classified as employee evaluation records, since they were created by the employer to evaluate the employees and detail their conduct on the job. The opinion also agreed the suspended officer's records could be released, since Arkansas's FOIA lets these records out once there's a final disciplinary resolution based on the records, plus a compelling public interest, both requirements the opinion found readily met for law enforcement misconduct. But for the three officers who resigned, the opinion couldn't confirm release was proper, because that depends on whether their resignations were genuinely voluntary or were "coerced resignations" (tantamount to a termination) under the FOIA's disclosure test, a factual question the Attorney General's office has no authority or ability to investigate when writing opinions.

Background and analysis (as of 2013)

FOIA's personnel-file exemptions split into two categories with different disclosure tests: "personnel records" generally, open unless disclosure would be a clearly unwarranted invasion of privacy, and the narrower category of "employee evaluation or job performance records," which the Arkansas Supreme Court in Thomas v. Hall defined as records created by or at the employer's behest to evaluate an employee's job performance, including misconduct investigation records. The opinion found the Washington County records clearly fell into this second, more protective category.

For employee evaluation records, FOIA requires four things before disclosure: the employee was suspended or terminated; there's been a final administrative resolution of that discipline; the records formed the basis for the disciplinary decision; and there's a compelling public interest in disclosure. The opinion found the basis and compelling-interest elements clearly satisfied here, noting the office has repeatedly recognized a compelling public interest in law enforcement officers' disciplinary records for misconduct implicating public trust or safety, and assumed the finality element was met for the suspended officer since the county attorney's letter didn't suggest otherwise. That left only the "suspended or terminated" element in question, and only as to the three officers described as having "resigned." The opinion explained that a resignation "tendered in the face of certain, impending termination" can count as a constructive termination satisfying this element, but whether any specific resignation crosses that line is a factual determination for the custodian, not something the Attorney General can verify from a letter alone. Because the county attorney's use of the phrase "forced to resign" didn't establish whether the resignations met that legal standard, the opinion declined to rule on those three officers' records, while confirming the suspended officer's file could properly be released.

Citations and references

Statutes (as they stood in 2013):

• A.C.A. § 25-19-105(c)(3)(B)(i), authorizing a custodian's attorney to seek an Attorney General opinion on a FOIA disclosure decision
• A.C.A. § 25-19-105(b)(12), the general personnel-records privacy exemption
• A.C.A. § 25-19-105(c)(1), the four-part test governing disclosure of employee evaluation or job performance records (suspension/termination, finality, basis, compelling public interest)

Cases:

• Thomas v. Hall, 2012 Ark. 66, defining "employee evaluation or job performance records" as records created by or at the employer's behest to evaluate the employee's job performance, including misconduct investigation records

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-144

November 18, 2013

George Butler, Jr.

Washington County Attorney
280 North College, Suite 501
Fayetteville, Arkansas 72701

Dear Mr. Butler:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian's attorney, is based
on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013). This subsection authorizes the
custodian, requester, or the subject of personnel or employee evaluation 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 say that someone has made an FOIA request to the Washington County
Sheriff's office for records related to four law enforcement officers, only one of
whom is still a current employee. You report that the sheriff's office conducted an
internal investigation that resulted in disciplinary action against these four officers.
You have attached to your letter several documents that, in the custodian's
judgment, are "job evaluation records" that "were the basis for the forced
resignations [of three officers] and the suspension [of one officer]." Further, the
custodian has determined that there is a compelling public interest in the
disclosure of these records.

You ask whether the custodian's decisions regarding the records' classification
and release are consistent with the FOIA.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

George Butler, Jr.
Washington County Attorney

Opinion No. 2013-144
Page 2

RESPONSE

The custodian's decision to classify the attached records as "employee evaluation
or job performance records" is, in my opinion, consistent with the FOIA. Further,
based on the information provided to me, the custodian's decision to release the
records of the suspended officer is consistent with the FOIA. I am unable to
definitively comment on the decision to release the records of the officers who
resigned. The propriety of that decision turns on a key factual question that I am
neither authorized nor equipped to investigate when issuing opinions.

DISCUSSION

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. There is no question that
the first two elements are met in this case. Thus, I will only analyze the final
element: whether there are any exceptions that shield the documents from
disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files.1 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records"2 or "employee

1 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
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 J. Peltz,
THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).

2 A.C.A. § 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."

George Butler, Jr.
Washington County Attorney

Opinion No. 2013-144
Page 3

evaluation or job performance records."3 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 the record be disclosed.

Because the attached records so clearly qualify as "employee evaluation or job
performance records," I will only focus on that exception. While the FOIA does
not define the term "employee evaluation or job performance records," the
Arkansas Supreme Court has held 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.4 This exception
includes records generated while investigating allegations of employee misconduct
that detail incidents that gave rise to an allegation of misconduct.5 Because each
of the attached records clearly meets each of these definitional elements, it is my
opinion that the custodian has properly classified the records as the respective
employees' employee evaluation records.

Having settled the question whether the records meet the definition of an
employee evaluation record, we must move to the question whether the FOIA
requires that the record be withheld from disclosure. The FOIA states that
employee evaluation records cannot be released unless all the following elements
have been met:

1. The employee was suspended or terminated (i.e., level of discipline);

3 A.C.A. § 25-19-105(c)(1): "Notwithstanding subdivision (b)(12) 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."

4 Thomas v. Hall, 2012 Ark. 66 (Feb. 16, 2012); see, e.g., Ops. Att'y Gen. Nos.
2009-067; 2008-004; 2005-030; 2004-211; 2003-073; and 93-055.

5 Id.

George Butler, Jr.
Washington County Attorney

Opinion No. 2013-144
Page 4

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).6

As for the final prong, the FOIA never defines the key phrase "compelling public
interest." But two 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, for that concern is, at least theoretically, always present.
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.7

These commentators also note that "the status of the employee" or "his rank
within the bureaucratic hierarchy" may be relevant in determining whether a

6 A.C.A. § 25-19-105(c)(1) (Supp. 2011); Op. Att'y Gen. 2008-065.

7 Watkins & Peltz, supra note 1, at 217-18 (footnotes omitted).

George Butler, Jr.
Washington County Attorney

Opinion No. 2013-144
Page 5

"compelling public interest" exists.8 The latter determination is always a question
of fact that must be determined by the custodian after considering 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.9

We are now in a position to apply the elements of the foregoing test to the attached
records. The basis and compelling-interest elements seem clearly met.10 Further, I
assume (though you do not say) that the disciplinary action against the suspended
officer is complete such that the finality element is also met. The only remaining
question is whether the level-of-discipline element is met. More specifically, the
question is whether the remaining three officers, who were (as you say) "forced
to resign," were "terminated" for purposes of this element.

As this office has used the term, a "forced resignation" or "coerced resignation"
refers to "a resignation tendered in the face of certain, impending termination."11
This office has opined that a coerced resignation can, in principle, amount to a
constructive termination that would satisfy the level-of-discipline element. But
whether any given resignation is actually a "coerced resignation" is a question of
fact that must be decided by the custodian. While you say these three officers were
"forced to resign," I have no way of knowing whether you are using that term in
the sense described above. And I lack both the resources and the authority to
investigate the factual question whether the three officers suffered a "coerced
resignation" as that term is used in this office's opinions. Consequently, I cannot

8 Id. at 216 (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").

9 Cf. Op. Att'y Gen. 96-168; Watkins & Peltz, supra note 1, at 204.

10 This office has repeatedly opined that the public has a compelling interest in the disciplinary records
of law enforcement officials who were disciplined for violating administrative policies aimed at
conduct that could undermine the public trust and/or compromise public safety. E.g., Op. Att'y
Gen. Nos., 2009-195, 2003-072, 2001-343, 98-210, 98-075, 97-400 and 92-319.

11 See, e.g., Op. Att'y Gen. 2011-084 (and opinions cited therein).

George Butler, Jr.
Washington County Attorney

Opinion No. 2013-144
Page 6

definitively opine on whether the custodian has properly determined that the level-
of-discipline element has been met in this case.

Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I
hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh