Can a sheriff's office withhold internal-affairs interview records when the deputy was placed on paid administrative leave during the probe and then resigned before the investigation closed?

Plain-English summary

Stanley James, Chief Deputy of the Jefferson County Sheriff's Office, asked the AG to bless a custodian's decision to deny a FOIA request for records from an internal investigation. The deputy at the center of the probe had been placed on paid administrative leave while the investigation was open. Witnesses had been interviewed. The deputy himself had been interviewed. Then he resigned, before the investigation closed. The custodian believed the records were exempt because there was no suspension or termination.

AG Dustin McDaniel agreed generally, but with two conditions on the facts. The custodian's decision was consistent with FOIA if (1) the paid administrative leave was a routine administrative practice with no disciplinary character and (2) the resignation was voluntary, not coerced. If both conditions held, the records flunked the four-part test for employee-evaluation records right at the first element (level of discipline) and had to be withheld.

The opinion is a tour of the analytical machinery. Records held by a county are public records. Two FOIA exemptions can pull personnel-related material back: the "personnel records" exemption (records about an individual employee that are not evaluation records, withheld only when release would be a clearly unwarranted invasion of personal privacy) and the "employee evaluation or job performance records" exemption (records created by or at the behest of the employer to evaluate the employee, withheld unless the four-part test is met). Internal-affairs files generated to investigate an employee's conduct are almost always evaluation records. Records not generated at the employer's behest, like unsolicited complaints, are personnel records subject to the Young v. Rice privacy balancing test instead.

Applied here, the interview records were evaluation records. The threshold of the four-part test, the suspension-or-termination element, was unmet. Paid administrative leave does not equal suspension when it is routine and non-disciplinary (the AG drew that distinction in Opinion 2007-311). A voluntary resignation in the middle of an investigation does not equal termination (the AG cited Opinion 2013-016). With both conditions assumed, the custodian's nondisclosure decision held up.

The AG was careful to leave a door open: a coerced resignation, defined elsewhere as one tendered in the face of certain, impending termination, could constitute a constructive termination. The Chief Deputy had not suggested coercion, so the AG assumed the resignation was voluntary.

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

Is paid administrative leave a "suspension" under Arkansas FOIA at the time of this opinion?
Not automatically. Opinion 2007-311 (relied on here) held that there is no suspension where the leave was granted under routine policy and the employee suffered no loss of benefits or other disciplinary measures. Suspension implies discipline; routine paid leave during an investigation is neutral.

Does a voluntary resignation mid-investigation cut off public access to the records?
Yes, on this opinion's analysis. The four-part test for releasing evaluation records starts with suspension or termination. Resignation, standing alone, satisfies neither. The records stay closed.

What is the difference between a "personnel record" and an "evaluation record"?
Evaluation records were (1) created by or at the behest of the employer (2) to evaluate the employee. Everything else about an individual employee that is held by the employer is a personnel record. The two categories use different release tests: personnel records get Young v. Rice privacy balancing; evaluation records get the four-part test.

What if someone outside the employer filed an unsolicited complaint?
That unsolicited complaint is a personnel record, not an evaluation record, because the employer did not solicit it. Releasability turns on the Young v. Rice balancing test, not the four-part test. The AG flagged this distinction in Opinion 2007-311.

Could the four-part test ever clear here?
Only if (a) the deputy had been suspended or terminated (he was not, on the assumed facts), (b) there was a final administrative resolution, (c) the records formed a basis for that suspension or termination, and (d) there was a compelling public interest. The threshold failure on the first element ends the inquiry.

What's the "compelling public interest" factor about?
The fourth element of the four-part test, applied only when the first three are met. Two leading FOIA commentators (Watkins & Peltz) suggest courts should weigh the nature of the infraction (especially breaches of public trust or gross incompetence), the existence of a related public controversy, and the employee's position within the agency. A generic public interest in employee performance is not enough.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) is the procedural anchor: custodians, requesters, and record subjects could ask the AG to opine on whether a release decision was FOIA-consistent.

A.C.A. § 25-19-103(5)(A) (Supp. 2013) defined "public record" broadly, including writings and electronic data that record the performance or lack of performance of official functions.

A.C.A. § 25-19-105(b)(12) carries the personnel-records exemption: records are withheld only to the extent disclosure would be a clearly unwarranted invasion of personal privacy.

A.C.A. § 25-19-105(c)(1) (Supp. 2013) carries the employee-evaluation-records exemption with the four-part test embedded in it.

Young v. Rice, 308 Ark. 593 (1992), supplied the privacy balancing test for personnel records, with a thumb on the scale in favor of disclosure. Stilley v. McBride, 332 Ark. 306 (1998), placed the burden on the records subject to show privacy interests outweigh public interests, and recognized that the requester's motive can supply objective public interest evidence in close cases. Thomas v. Hall, 2012 Ark. 66, ratified the AG's framework for evaluation records.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG-opinion procedure)
• A.C.A. § 25-19-103(5)(A) (Supp. 2013) (definition of public record)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (employee-evaluation records exemption)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing for personnel records)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (subject bears burden)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation-records framework)
• Op. Att'y Gen. 2007-311 (paid administrative leave not necessarily suspension)
• Op. Att'y Gen. 2013-016 (voluntary resignation does not trigger disclosure)
• Op. Att'y Gen. 2008-049 (redactions for other employees mentioned in records)
• Op. Att'y Gen. 2008-065 (four-part test)

Source

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

Original opinion text

Opinion No. 2014-095
September 3, 2014

Stanley James, Chief Deputy
Jefferson County Sheriff Office
Post Office Box 7837
Pine Bluff, Arkansas 71611

Dear Chief Deputy James:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request 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.

Your correspondence indicates that a request has been made under the FOIA for records of a particular incident involving an employee of the Sheriff's Department. You state that following the incident, the employee was placed on administrative leave with pay, pending an internal investigation to determine whether there was any violation of departmental policies and procedures. You state that several witnesses were interviewed, along with the employee, and that the employee resigned shortly after being interviewed. You further report that the investigation will be concluded within a few days.

Regarding the release of the requested records, you state: "It is my understanding that [in the case of] an agency investigation of alleged employee misconduct that didn't result in termination or suspension[,] the records pertaining to [such investigation] are not subject to be disclosed." I take it from this statement that the custodian does not intend to release the records. You have asked for my opinion regarding this decision.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen the particular records at issue, I cannot opine about whether any specific document should be released. Based upon the information provided, however, I can opine generally that the custodian's decision not to release interview records that were generated by or at the behest of the employer is consistent with the FOIA if in fact 1) the administrative leave with pay was pursuant to routine practice and involved no disciplinary measures and 2) the employee voluntarily resigned.

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 met in this case. As for the first element, the documents are held by the county, which is a public entity. As for the second element, the FOIA defines "public record" as:

writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

I assume from the information you have provided that the requested records were all created or collected during the internal investigation into the specific incident. Accordingly, it can reasonably be assumed that they reflect the performance or lack of performance of official functions. Therefore, in my opinion, the records being sought are public records under the above definition and must be disclosed unless some specific exception provides otherwise.

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 and job performance records that pertain to individual employees. Whether a particular record meets this definition is, of course, 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 a thumb on the scale favoring disclosure.

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 recently 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.

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 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.

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.

As indicated above, records relating to internal investigations are in many cases properly classified as employee-evaluation records. As one of my predecessors observed:

Although, again, I am not certain what records are contained in the requested internal affairs files, these types of files typically contain records related to an internal investigation of an employee's involvement in a particular event. This office has consistently taken the position that records in an internal affairs file that have been generated at the behest of the employer in the course of investigating a complaint against an employee constitute "employee evaluation/job performance records." Their releasability must therefore be evaluated under the three-part test discussed above .... However, records related to an internal investigation that were not created at the behest of the employer (such as an unsolicited complaint) are classified as "personnel records," and their releasability must be evaluated under the test that is applicable to that type of record ....

I have not been provided the records at issue in this instance, so I cannot determine conclusively whether all of the records that have been requested are properly classified as employee-evaluation records so as to make applicable the four-part test described above. I note, however, that you have referred to several witness interviews, as well as an interview of the employee involved in the incident. Because you have not mentioned any other records, I will limit my discussion to these interview records. These interviews were presumably conducted at the behest of the employer (or supervisor) to evaluate the employee, and consequently it can reasonably be presumed that the records of the interviews constitute the former employee's evaluation records. The pertinent inquiry as to these records is whether there has been a "suspension" or "termination" such that the first prong of the above test has been met. My predecessors and I have recognized that a suspension or termination is a threshold requirement for the release of employee evaluation or job performance records.

I have previously addressed a similar scenario, involving an employee who was placed on administrative leave with pay pending an internal investigation and who subsequently resigned. In Attorney General Opinion No. 2007-311, I considered the question whether such "administrative leave" might itself indicate that a "suspension" has occurred for purposes of A.C.A. § 25-19-105(c)(1). I concluded that there is no "suspension" where the facts show the administrative leave was granted pursuant to routine departmental policy and the employee was subjected to no loss of benefits or other disciplinary measures.

I also addressed the employee's resignation in that case, which, as in the case at hand, occurred after the investigation was instigated but before the results thereof (and thus before any disciplinary action was implemented). In this regard, I noted that a voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination.

Previous Attorney General opinions leave open the possibility that a coerced resignation might amount to a constructive termination. But you have provided no information suggesting the resignation in this case was coerced. You simply say that it occurred shortly after the employee was interviewed; and you appear to assume there was no termination or suspension. I therefore assume the resignation was indeed voluntary.

As explained above, an employee-evaluation record will be subject to disclosure under the FOIA only if, among other things, the document formed a basis for a suspension or termination. Because it appears the employee in this instance was neither suspended nor terminated, the threshold requirement for the release of the interview records as they pertain to this employee has not been met. This of course assumes, as discussed above, that the administrative leave was consistent with regular practice and not disciplinary in nature, and that his resignation was voluntary. With those assumptions in mind, I can opine that the custodian's decision not to release the interview records is consistent with the FOIA.

Deputy Attorney General Elisabeth A. Walker prepared this opinion, which I hereby approve.

Sincerely,
DUSTIN MCDANIEL
Attorney General

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