Can an Arkansas sheriff's office release a deputy's suspension letter to a third-party FOIA requester even though the deputy was not involved in any of the matters the requester was investigating?

Plain-English summary

Deputy Rod Bostic of the Pulaski County Sheriff's Office (PCSO) received notice that his suspension letter was about to be released in response to an FOIA request seeking "particular employment records of deputies who have received disciplinary suspensions." Bostic objected to the release on the ground that he was not involved in any of the underlying matters that prompted the broader FOIA request. He invoked the AG's review channel under A.C.A. § 25-19-105(c)(3)(B)(i) to test whether the custodian's release decision was consistent with the FOIA.

AG Dustin McDaniel sustained the release. The analysis follows the standard Arkansas FOIA framework for employee-evaluation records:

Step 1: Requester motive is irrelevant. Bostic argued, in essence, that the requester's reasons for asking did not include him. The AG cited consistent prior opinions to the effect that a requester's motive is generally irrelevant to whether a non-exempt record should be released. The act treats records as exempt or not; what the requester intends to do with them does not change the analysis.

Step 2: The letter is an employee-evaluation record. The AG has consistently opined that a letter detailing the reasons that served as the basis for a disciplinary suspension is an employee-evaluation record under A.C.A. § 25-19-105(c)(1). Bostic's letter fit this category.

Step 3: The four-part evaluation-records test is met. Release requires (a) suspension or firing, (b) final administrative resolution, (c) records that formed a basis for the disciplinary decision, and (d) a compelling public interest. The opinion finds the first three "clearly" met. The suspension letter, although written contemporaneously with the suspension, formed a basis for it because it reflected or detailed the incidents leading to the suspension.

Step 4: Compelling public interest exists. Two factors drive the AG's conclusion. First, Bostic is a law enforcement officer, and prior opinions (echoed in 2014-122 issued less than a month earlier) hold that rank within a law enforcement agency carries minimal weight against disclosure because the "cop on the beat is just as important as the chief of police." Second, the suspension resulted from violation of a rule directly designed to avoid undermining public trust. The AG has consistently held that violation of such rules is enough by itself to create a compelling public interest in disclosure, and the AG cites Op. Att'y Gen. 2010-055 and 97-400 for that proposition. The Watkins & Peltz treatise framing (public interest is "most likely to be compelling when records reflect a breach of trust or illegal conduct by employees") is also invoked.

The opinion is paired in time with Opinion No. 2014-122, which similarly held that age and lack of public controversy do not defeat the compelling-public-interest test where the disciplined officer is in a law enforcement role and the discipline reflects a breach of trust. The two opinions together state a stable Arkansas rule for law enforcement disciplinary records.

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

Why does the AG say motive is irrelevant?
Because the FOIA defines exempt records by reference to their content and classification, not by who is asking. A requester does not have to justify the request, and a custodian cannot raise barriers based on suspicion of motive. The AG cited Op. Att'y Gen. 2013-073 (and earlier opinions) for that principle.

Bostic was not involved in the matters that prompted the FOIA. Does that change anything?
No. Bostic was within the category of "deputies who have received disciplinary suspensions," which was the requester's stated scope. The fact that he was not a target of any specific investigation underlying the request does not change the FOIA analysis. Either the record is exempt or it is not, on its own.

What does "compelling public interest" mean in this context?
Three factors from the Watkins & Peltz treatise: (1) nature of the infraction, with particular attention to violations of public trust or gross incompetence; (2) existence of a public controversy; (3) employee's position. A "general interest" in public-employee performance is not enough because it is always present. A specific link between misconduct and public-trust breach by a known public-facing employee is.

Does this opinion mean every police disciplinary record is releasable?
Not automatically. The four-part test still has to be met. But once the test is met, the law enforcement context makes the compelling-public-interest factor easier to satisfy, particularly when the rule violated was about public-trust or public-safety conduct.

What if the deputy had not been a law enforcement officer? Same result?
The opinion's logic suggests the analysis would have been closer. The law-enforcement-specific multiplier is what makes rank a minor factor here. Non-law-enforcement public employees would get more weight on the rank factor, and the question of whether the rule violated implicated public trust would matter more directly.

Background and statutory framework

The Arkansas FOIA splits employment-related exemptions between "personnel records" (A.C.A. § 25-19-105(b)(12)) and "employee evaluation or job performance records" (A.C.A. § 25-19-105(c)(1)). The two categories are mutually exclusive.

Evaluation records are presumptively closed. The four-part test for release: (1) suspension or firing; (2) final administrative resolution; (3) records formed a basis for the decision; (4) compelling public interest. Prior AG opinions and Watkins & Peltz are the principal authorities on what "compelling public interest" means.

The opinion footnotes a procedural point about "formed a basis" element. A suspension letter written contemporaneously with the suspension still satisfies that element if it reflects or details the incidents leading to the suspension. The AG cites Op. Att'y Gen. 2005-030 and 2006-026 (regarding a letter of termination) for the proposition that contemporaneous letters can serve as the basis-document.

The law-enforcement multiplier in the public-interest analysis is now well established: 2014-122 lays it out as a free-standing principle; 2014-129 applies it to a closely-paired fact pattern. Both opinions cite Watkins & Peltz at 217 and the "cop on the beat" formulation.

Op. Att'y Gen. 2010-055, repeatedly cited, is the leading rule-violation case: where records reflect that the suspensions occurred because of violation of rules aimed at conduct that could undermine public trust or compromise public safety, the compelling-public-interest test is met. The AG treats rule-of-conduct violations as the strongest fact pattern for release.

Citations

• A.C.A. § 25-19-103(5)(A) (Supp. 2013) (definition of "public records")
• A.C.A. § 25-19-105(b)(12) (Supp. 2013) (personnel records exemption)
• A.C.A. § 25-19-105(c) (employee evaluation records framework)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (evaluation records test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request mechanism)
• Op. Att'y Gen. 2014-122 (law enforcement officer, age and lack of controversy)
• Op. Att'y Gen. 2010-055, 97-400 (rule violation as compelling public interest)
• Op. Att'y Gen. 2012-041, 2011-068, 2011-100, 2009-210, 2008-065, 2006-026, 95-171 (suspension-letter line)
• Op. Att'y Gen. 2013-104 (teachers, "position of trust")
• Op. Att'y Gen. 2013-073 (requester motive irrelevant)
• Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed. 2009)

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. 2014-129

November 24, 2014

Deputy Rod Bostic
c/o Pulaski County Sheriff's Office
2900 S. Woodrow
Little Rock, Arkansas 72204

Dear Mr. Bostic:

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), which 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 the Pulaski County Sheriff's Office (PCSO) has received a FOIA request for particular employment records of deputies who have received disciplinary suspensions. You have provided a copy of a suspension letter issued to you which the PCSO reportedly plans to release. You object to the letter's release because you were not involved in any of the matters that prompted the FOIA request.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. It is my opinion for the reasons explained below that the custodian's decision to release the record is consistent with the act.

DISCUSSION

I. The standard governing disclosure

It must first be noted that the requester's motive for making the request is generally irrelevant to whether a non-exempt record should be released pursuant to the FOIA. 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 element is clearly met in this case, inasmuch as the PCSO is clearly a public entity.

As for the second element, the FOIA defines "public record" as follows:

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.

The record here at issue clearly qualifies as a public record under this definition. It must therefore be disclosed in response to the FOIA request unless some specific exception provides otherwise.

Under certain conditions, the FOIA exempts from public disclosure two separate groups of employee-related records: "personnel records" and "employee evaluation or job performance records." The test for whether these two types of documents may be released publicly differs significantly.

Based upon my review of the record at issue, I conclude that the relevant exemption is the one for employee-evaluation records. This office has consistently opined that a letter detailing the reasons that served as a basis for a disciplinary suspension is an employee-evaluation record for purposes of the FOIA. The letter you have provided for my review clearly falls into this category.

As an employee-evaluation record, the letter cannot be released unless all of the following conditions are met: (1) the employee was suspended or fired; (2) the suspension or termination has been finally resolved administratively; (3) the records formed a basis for the decision to suspend or terminate the employee; and (4) a compelling public interest exists in the records' disclosure.

With regard to the fourth condition, the FOIA does not define the term "compelling public interest." The two leading commentators on the FOIA, however, based upon 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.

II. Application

It seems clear the first three conditions are met in this case. This leaves open only the question whether the circumstances prompting the suspension are of compelling public interest. The custodian has decided to release the record, indicating that the custodian has determined there is a compelling public interest in its disclosure.

As noted above, various factors bear on the "compelling public interest" analysis, including the employee's rank in the hierarchy and the existence of a public controversy. But as I have previously observed, the very fact of the employee being a law-enforcement officer creates a strong public interest in his official conduct:

The opinions from this office, and the views of the leading commentators on the FOIA, indicate that rank within the hierarchy "may be relevant" to determining whether a compelling public interest exists. But, as the commentators note, this conclusion is tempered in the context of law enforcement: "[T]he public has a great interest in the [job] performance of police officers . . . and in this case the 'cop on the beat' is just as important as the chief of police."

Additionally, the absence of public controversy in some circumstances establishes little with respect to whether a compelling public interest in disclosure exists.

Far more pertinent to the analysis in this case, in my opinion, is the fact that the suspension in this instance appears to have resulted from the violation of a rule directly designed to avoid any undermining of the public trust. This office has consistently opined that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of employee-evaluation records. As commentators on the FOIA have observed, "[t]he public's interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by employees." The record you have enclosed with your request for my opinion reflects that the suspension occurred as a result of violation of rules aimed at this type of conduct or behavior.

Accordingly, it is my conclusion that the "compelling public interest" standard is met with respect to the record in question. Because the other conditions under § 25-19-105(c)(1) for release of the record have also been met, it is my opinion that the custodian's decision to release the record is consistent with the FOIA.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

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