Can the Arkansas AG block FOIA release of a police officer's internal affairs file because of his pending criminal trial?
Apply this to your situation
This page answers the general question as of 2014. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
Attorney Kent McLemore represented a former police officer who was facing pending criminal charges. A journalist filed an Arkansas FOIA request for the records of the internal affairs investigation that had been conducted into the officer's conduct. The records custodian intended to release the records in redacted form, applying the employee-evaluation test under A.C.A. § 25-19-105(c)(1).
McLemore did not dispute the custodian's conclusions on any FOIA test. He did not argue that the records were not public records, did not argue that they failed the employee-evaluation test, and did not contest the proposed redactions. His only objection was that releasing the records would prejudice his client's Sixth Amendment right to a fair trial.
AG Dustin McDaniel declined to evaluate the objection. His authority under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to evaluating a custodian's interpretation and application of two specific FOIA provisions (the personnel records and employee evaluation records exemptions). A federal constitutional fair-trial claim is outside that scope.
The AG pointed McLemore to Ark. Gazette Co. v. Goodwin, 307 Ark. 204 (1990), which holds that only a trial court can do the balancing between FOIA disclosure and the subject's right to a fair trial. If McLemore wanted to stop the release on Sixth Amendment grounds, he had to go to court, not to the AG.
Currency note
This opinion was issued in 2014. 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.
Common questions
Q: Can the Arkansas AG block a FOIA release because of a pending criminal trial?
A: No. The AG's review power under A.C.A. § 25-19-105(c)(3)(B)(i) is narrow. He can review only whether a custodian correctly applied the personnel records exemption (b)(12) or the employee evaluation records exemption (c)(1). Federal constitutional fair-trial claims are not in scope.
Q: Then who decides whether release would violate the subject's fair trial rights?
A: A court. The AG pointed McLemore to Ark. Gazette Co. v. Goodwin, 307 Ark. 204 (1990), where the Arkansas Supreme Court held that the trial court conducts the balancing between FOIA's public-access mandate and a defendant's Sixth Amendment right to a fair trial. The subject's attorney would need to file in the court handling the criminal case.
Q: Was there any FOIA objection McLemore could have made instead?
A: He chose not to make one. The custodian had already determined the records were public records, met the employee-evaluation definition, and qualified for release because the officer's status (suspended or terminated) satisfied A.C.A. § 25-19-105(c)(1)'s threshold. McLemore expressly did not dispute any of those determinations or the proposed redactions.
Q: What about the AG's other arguments? Can the AG review them?
A: Only when the dispute is about how the custodian applied A.C.A. §§ 25-19-105(b)(12) or (c)(1). Disputes about other exemptions, about whether the records are even public records, or about external legal limits like the federal Constitution fall outside the AG's review jurisdiction.
Q: What is the test for releasing police internal-affairs records under Arkansas FOIA?
A: Internal affairs records are typically "employee evaluation or job performance records" under A.C.A. § 25-19-105(c)(1). They can be released only if (1) there has been final administrative resolution of a suspension or termination, (2) the records formed a basis for that discipline, and (3) there is a compelling public interest in their disclosure. Where those conditions are met, the records become disclosable in redacted form.
Q: How does a trial court decide whether to block FOIA release that could harm a fair trial?
A: Goodwin tells the court to balance the public's interest in disclosure against the defendant's specific risk of prejudice. The defendant must show concrete prejudice, not speculation. The court can order delays, narrow redactions, or other tailored relief; complete blocking is rare.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i) gives three parties (the custodian, the requester, and the subject of personnel or employee-evaluation records) the right to ask the AG for an opinion on whether the custodian's release decision is consistent with FOIA. The AG must respond in writing. The text of the provision narrowly defines what the AG can review: the custodian's interpretation and application of A.C.A. § 25-19-105(b)(12) (personnel records) and A.C.A. § 25-19-105(c)(1) (employee-evaluation or job performance records).
That narrow scope is the heart of the 2014-007 opinion. McLemore's objection was real but it was not a FOIA objection. It was a federal constitutional argument that FOIA's disclosure mandate must yield when disclosure would compromise the subject's Sixth Amendment fair-trial rights. The AG had no jurisdiction to evaluate that argument.
Ark. Gazette Co. v. Goodwin, 307 Ark. 204, 801 S.W.2d 284 (1990), is the leading Arkansas authority on the intersection of FOIA disclosure and fair-trial rights. The case arose when a newspaper requested records of an investigation into a criminal defendant. The Arkansas Supreme Court held that the trial court, not the records custodian or the AG, performs the balancing. The court can order disclosure, deny disclosure, or fashion intermediate remedies (delays, redactions, sealed exhibits) to protect both interests. The AG's invocation of Goodwin effectively directed McLemore to the proper forum.
The opinion noted in a footnote that McLemore's objection had two parts: (1) the legal claim that FOIA must yield to fair-trial rights, and (2) the factual claim that disclosure in this specific case would prejudice the trial. The court can evaluate both. The AG can evaluate neither.
A practical observation: an objection from the subject's attorney does not stop the FOIA release on its own. If the custodian and the AG both conclude the records are disclosable, the records go out unless a court intervenes. The subject or his attorney would need to seek a temporary restraining order or other injunctive relief from the trial court before the release deadline passes.
Source
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.
Get today's answer for your situation
You just read a 2014 opinion on this question. Ezel checks the current Arkansas statutes and case law and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the law it relies on.