Could the Arkansas AG decide whether releasing a former officer's internal-affairs file would prejudice his pending criminal trial?

Plain-English summary

An attorney for a former police officer objected to a records custodian's plan to release redacted internal-affairs records to a journalist. The officer faced a pending criminal trial. His attorney did not dispute that the records were public records, the custodian's employee-evaluation analysis, or the proposed redactions. The objection was that release would prejudice the officer's constitutional right to a fair trial.

The AG said he could not evaluate that objection. His statutory review was limited to a custodian's interpretation and application of the FOIA provisions on personnel records and employee-evaluation records. Because the attorney raised only a constitutional fair-trial issue, the AG did not revisit the undisputed FOIA analysis.

A footnote described the objection as having two parts: whether FOIA disclosure requirements yield when release jeopardizes a fair trial and whether this release would actually cause such prejudice. The AG cited Ark. Gazette Co. v. Goodwin and said only a trial court could conduct the balancing needed to evaluate those assertions. He did not decide the result of that balance.

What this means for you

Record subjects and custodians

An AG review request under the provisions discussed here addresses the custodian's application of the personnel and employee-evaluation record rules. In this opinion, the subject's attorney raised a separate fair-trial claim. The AG directed that issue to a trial court and did not resolve the planned release.

Currency note

This opinion was issued in 2014. Check current FOIA law and procedure before applying it to a pending release.

Common questions

Did the AG approve or block release of the records?
Neither. He said the sole objection presented was beyond the scope of his statutory review.

What FOIA conclusions were undisputed?
The attorney did not object to the custodian's public-record determination, employee-evaluation release analysis, or redactions.

Who could assess the fair-trial objection?
The AG said only a trial court could conduct the balancing required to evaluate the claimed harm from release, citing Goodwin.

Did the AG decide that this trial would be prejudiced?
No. Whether release would actually jeopardize the officer's fair-trial right was one of the questions he left to a trial court.

Background and statutory framework

The opinion confines the AG's review to the FOIA provisions concerning personnel and employee-evaluation records. It does not set out the substantive release test because the attorney did not dispute the custodian's application of it. The constitutional objection required a separate assessment that the AG said he could not perform.

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. 2014-007
January 28, 2014

Kent McLemore
Buckley, McLemore & Hudson, P.A.
123 North Block Avenue
Fayetteville, Arkansas 72701

Dear Mr. McLemore:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). The FOIA 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, as the subject's attorney, request such an opinion.

Your letter indicates that your client, a former police officer, was the subject of an internal-affairs investigation. The custodian of those records intends to release them (in redacted form) in response to a journalist's FOIA request for them.

While you object to their release, you apparently do not object to the custodian's determination that the records are "public records" under the FOIA. Nor do you object to the custodian's determination that the FOIA requires the records be disclosed pursuant to the test for employee-evaluation records under A.C.A. § 25-19-105(c)(1). Nor do you object regarding the custodian's redactions. Instead, your objection is solely based on the claim that, because your client is facing a pending criminal trial, the release of these records "will prejudice his constitutional right to a fair trial."

You ask me to determine whether, in light of your objection, the custodian's decision to release the records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. When performing this duty, I typically explain the FOIA's requirements pertaining to the release of employee-related public records. But since there is no dispute here regarding those requirements, such a discussion is not called for.

Your objection is entirely grounded in the federal constitution. Accordingly, the merits of your objection fall outside the scope of my review under subsection 25-19-105(c)(3)(B)(i), which limits my review to evaluating custodian's interpretation and application of A.C.A. §§ 25-19-105(b)(12) (for personnel records) and 25-19-105(c)(1) (for employee-evaluation records). Because your objection is based on an interpretation and application of something other than those two FOIA provisions, I am unable to evaluate it.

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

Sincerely,
DUSTIN McDANIEL
Attorney General
DM:RO/cyh

Footnote: Your objection essentially amounts to two assertions: (1) that the FOIA's disclosure requirements yield when a disclosure would jeopardize the subject's right to a fair trial; and (2) that, given all the circumstances, the disclosure of your client's information would, in fact, jeopardize his right to a fair trial. Accordingly, you may wish to refer to Ark. Gazette Co. v. Goodwin, 307 Ark. 204, 801 S.W.2d 284 (1990). As Goodwin makes clear, only a trial court is in a position to conduct the balancing tests required to evaluate your objection to the records' release in this instance.