Can a city release police officer suspension records when the underlying misconduct was off-duty private conduct with no public impact?

Plain-English summary

The City of Fayetteville's HR director, Missy Leflar, asked the AG to review the City's decision to release certain Fayetteville Police Department records in response to a FOIA request for "all police officer suspensions dating from 2004." The officer at issue, Paul Koscheski, objected on the ground that there was no compelling public interest in the records' disclosure.

AG Leslie Rutledge agreed with the officer. The records were employee-evaluation records exempt under A.C.A. § 25-19-105(c)(1), and the City's decision to release them was inconsistent with the FOIA.

Two preliminary points. First, many of the documents the City submitted actually pertained to a different individual; those were outside the scope of this opinion. Second, the AG could not opine on whether the underlying disciplinary action was justified. Under the statutory review procedure, the AG must assume the discipline was proper and focus only on whether release would satisfy the FOIA's four-element test for evaluation records.

That test requires: (1) suspension or termination, (2) finality, (3) the records were the basis for the discipline, and (4) a compelling public interest in disclosure. The first three were met. The fight was on the fourth.

The AG considered the standard factors: nature of the infraction, existence of a public controversy, and the officer's position. The opinion identified several facts about the incident that pointed against a compelling public interest:

• The incident did not involve misuse of taxpayer funds.
• No criminal conduct was involved.
• There was no appreciable risk to public safety.
• The incident involved little interaction with the public.
• The misconduct was a "private life" Fayetteville Police Department rule violation that happened while the officer was off-duty.
• The suspension was based on this single incident.

The cumulative effect was that the public did not have a compelling interest in the records. The AG had repeatedly held that there is a strong public interest in a law enforcement officer's official conduct, especially rule violations that affect interactions with the public. But where the public impact is minimal, that interest is lessened. Off-duty private-life rule violations without taxpayer, criminal, or public-safety dimensions fall on the low-interest side.

Currency note

This opinion was issued in 2015. 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 is there a higher bar to release evaluation records than personnel records?
Because the legislature was concerned about chilling honest evaluation of public employees. The four-element test (suspension/termination + finality + basis + compelling public interest) was designed to keep evaluations confidential except where the public's interest in oversight of serious misconduct truly outweighs the confidentiality interest.

Does "compelling public interest" change for police officers?
Yes, in practical terms. The AG repeatedly recognized a strong public interest in the official conduct of "cops on the beat" who interact with the public, especially where misconduct involves drug use, criminal arrests, or safety violations. Off-duty private conduct with no public-facing dimension is treated differently.

What were some examples of misconduct that have crossed the compelling-interest line?
Per the opinion's citations: use or possession of drugs, arrests or convictions, and violations of safety rules. The factor analysis is fact-specific, but those categories tended to carry the public-interest weight needed for release.

Does the absence of a public controversy matter?
The opinion notes that the absence of a separate public controversy can be of "minimal significance" in cases where the records themselves involve drug use, criminal conduct, or safety violations. It does not save the day, however, when the underlying conduct is purely personal and off-duty.

What does the AG do under A.C.A. § 25-19-105(c)(3)(B)(i)?
The statute lets the custodian, the requester, or the subject of personnel or evaluation records ask the AG whether the custodian's release decision is consistent with the FOIA. The AG must assume the discipline itself was proper and only opines on the release decision.

Background and statutory framework

Arkansas FOIA gives different protection to "personnel records" (open absent a clearly unwarranted invasion of personal privacy under Young v. Rice) and to "employee evaluation or job performance records" (sealed unless all four release conditions are met).

Employee-evaluation records, as defined in Thomas v. Hall and a long line of AG opinions, are 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. Records generated while investigating allegations of misconduct that detail the underlying incidents fall within this category.

The fourth element, "compelling public interest," is undefined in the statute. The Watkins & Peltz treatise on the Arkansas FOIA identified three factors AG opinions have applied: nature of the infraction (especially violations of public trust or gross incompetence), existence of a public controversy related to the agency, and the employee's position or rank. A general interest in public-employee performance is not enough; some link between the records, a controversy, and a serious breach of public trust is typically needed.

For police officers specifically, the public's interest in official conduct has been treated as substantial, particularly when discipline reflects a violation of departmental rules by a "cop on the beat" interacting with the public. Off-duty private conduct without public-facing dimensions has been treated less favorably for release.

Citations

• A.C.A. § 25-19-103(5)(A) (definition of "public record")
• A.C.A. § 25-19-105(b)(12) (personnel records exemption, by reference)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records release test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee evaluation records)
• Op. Att'y Gen. 2008-065 (employee evaluation release test)
• Op. Att'y Gen. 2014-122 (absence of public controversy of minimal significance in misconduct cases)
• Op. Att'y Gen. 2007-206 (compelling interest for "cop on the beat" rule violations)
• Op. Att'y Gen. 2010-055 (potential public impact as factor)
• Op. Att'y Gen. 2001-144 (drug use); 2003-257, 97-190, 97-177 (arrests/convictions); 2003-072, 2001-343, 98-210, 98-075, 97-400, 92-319 (safety rule violations)

Source

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

Official summary

Is the decision of the custodian of records to release certain records from an employee's personnel file in response to a Freedom of Information Act ("FOIA") request consistent with provisions of the FOIA? The employee objects to release, citing a lack of compelling public interest in disclosure of the documents.

RESPONSE: It is my opinion that the records are exempt from disclosure pursuant to A.C.A. § 25-19-105(c)(1) (Supp. 2013). Accordingly, the custodian's decision to release them is contrary to the FOIA, in my opinion. See Opinion for the analysis.

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-007

January 16, 2015

Missy Leflar
Human Resources Director
City of Fayetteville
113 West Mountain
Fayetteville, Arkansas 72701

Dear Ms. Leflar:

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.

You state that the City of Fayetteville has received a FOIA request for all police officer suspensions dating from 2004. You have provided certain documents to my office that you apparently deem responsive to this request and that you identify as pertaining to one officer's suspension. You have redacted some pieces of information from the documents, and you have determined that they are subject to release as redacted. The officer objects to the records' release on the basis that there is no compelling public interest in their disclosure. As custodian, and on behalf of the subject of the records, you seek my opinion on whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records you intend to release, I must address a preliminary point regarding the scope of my review in this case. Despite your statement that the documents pertain to the officer who is the subject of your request for my opinion, a large number of them pertain, or contain information that pertains, exclusively to another individual. To the extent the records submitted pertain exclusively to the other individual, please note that they are not within the scope of this opinion. The conclusions reached herein apply only to the records as they relate to the subject of your request for my opinion.

With regard to those records, it is my opinion that they are exempt from disclosure pursuant to A.C.A. § 25-19-105(c)(1) (Supp. 2013). Accordingly, your decision to release such records is in my opinion contrary to the FOIA.

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 City of Fayetteville, 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.

Given that the records at issue are kept by the City and the subject matter involves the suspension of a police department employee, I believe the records clearly qualify as "public records" under this definition. Accordingly, they 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.

It appears that the relevant exception in this case is the one 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).

With regard to the final element, the FOIA does not define the phrase "compelling public interest." However, 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 considering 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.

We can now apply the foregoing to the documents at issue. As noted above, the test for release involves four elements: level of discipline, finality, basis, and a "compelling public interest" in disclosure. The first three elements appear to have been met in this case. The inquiry focuses, then, on whether there is a "compelling public interest" in the records' disclosure. As the above guidelines indicate, various factors bear on this analysis. This office has repeatedly opined that, in certain situations, a compelling public interest exists in the disclosure of documents containing certain categories of information. The absence of a public controversy may be of minimal significance in these cases. Additionally, with regard specifically to employee-evaluation records of law enforcement personnel, this office has previously observed that the public has a strong interest in a law enforcement officer's official conduct. As one of my predecessors noted, there is "a strong case for the finding of a compelling public interest" where disciplinary records reflect "a violation of departmental rules by a 'cop on the beat' in his interactions with the public."

This office has not opined that only these categories of information could give rise to a compelling public interest favoring disclosure. But in the case of rules violations by law enforcement officers, the potential public impact of the misconduct at issue is undoubtedly a factor that must be considered when weighing the public interest. And where the public impact is minimal, it stands to reason that the public interest will be lessened. This appears to be the case regarding the suspension at issue. After reviewing the facts that gave rise to this suspension, as reflected in the records you have provided, I have concluded that the public does not have a compelling interest in these documents. This conclusion is based on the specific facts of the incident giving rise to the records I have reviewed. The cumulative effect of these facts indicates, in my opinion, that the public lacks a compelling interest in the documents. The facts include the following: the incident did not involve a misuse of taxpayer funds, any criminal conduct, or any appreciable risk to public safety; the incident involved little interaction with the public; the incident was a "private life" Fayetteville Police Department rule violation that occurred while the officer was off-duty; the suspension was based on the one incident.

Thus, in my opinion, the final prong that justifies release of employee-evaluation records is not satisfied. Accordingly, it is my opinion that your decision to release the documents is inconsistent with the FOIA.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General

LR/EAW:cyh