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

The Pulaski County Sheriff's Office planned to release Deputy Rod Bostic's suspension letter in response to a FOIA request for employment records of deputies with disciplinary suspensions. Bostic objected because he was not involved in the matters that prompted the request. After reviewing the letter, the AG concluded that releasing it was consistent with FOIA.

The AG said a requester's motive is generally irrelevant to whether a nonexempt record must be disclosed. He classified this letter as an employee-evaluation record because it detailed reasons for a disciplinary suspension. Such a record can be released only when the employee was suspended or fired, the disciplinary matter is finally resolved administratively, the record formed a basis for the decision, and disclosure serves a compelling public interest.

The AG found the first three conditions met. On public interest, he pointed to the strong interest in a law enforcement officer's official conduct and to the letter's account of a rule violation that appeared to involve rules designed to protect public trust. He concluded that the compelling-interest condition was met for this letter and upheld the custodian's release decision.

Currency note

This opinion was issued in 2014. Verify current FOIA law and later decisions before applying its reasoning to another disciplinary record.

Common questions

Does it matter that the deputy was not involved in what prompted the request?
The AG said the requester's motive is generally irrelevant. The release decision turned on the letter and the FOIA conditions, which the AG found satisfied.

Does this mean every law enforcement suspension letter must be released?
No. The AG applied the four conditions to the specific letter he reviewed. He said compelling public interest depends on the facts, including the nature of the infraction and the employee's role.

Why did public interest favor disclosure here?
The AG found a strong public interest in officers' official conduct. More directly, the suspension appeared to result from violating a rule aimed at conduct that could undermine public trust.

Does an officer's rank decide the public-interest question?
The opinion says rank can matter, but cautions that a patrol officer's conduct can matter as much to the public as a police chief's. The custodian must consider the circumstances.

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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