How did the Arkansas FOIA require redactions in a city police officer's personnel file released to the public, and what could a custodian properly withhold?

Plain-English summary

Someone filed a FOIA request with the City of Lowell for "the complete personnel file and any and all employee records" of a current Lowell Police Department officer. The custodian gathered the documents, drew redactions on them, and was about to release them when the officer objected. The City Attorney, Thomas Kieklak, used the statutory mechanism in A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG whether the planned release would comply with FOIA.

AG Leslie Rutledge worked through the records and gave a layered answer.

Most documents in the file were "personnel records." Under Arkansas FOIA, personnel records are public unless their disclosure would be "a clearly unwarranted invasion of personal privacy" under A.C.A. § 25-19-105(b)(12). The AG ran the Young v. Rice balancing test (was the privacy interest more than de minimus, and did it outweigh the public's interest in disclosure?) and concluded that the standard intake records (job application, salary, references, employment history) had to be disclosed.

A few documents were "employee evaluation or job performance records," covered by a different and stricter exception in A.C.A. § 25-19-105(c)(1). Evaluation records may be released only when (a) the employee was suspended or terminated, (b) there has been a final administrative resolution, (c) the records formed the basis for that decision, and (d) the public has a compelling interest in disclosure. The AG identified four specific evaluation-type records (a letter dated 3/9/15, a letter dated 8/6/08, an undated reference-report note, and a memo dated 12/26/07). If those did not lead to a final suspension or termination, they could not be released.

The custodian also had a redaction problem on three fronts. First, certain mandatory redactions were missing from the documents the custodian planned to release (the file contained personal finance information, dependent information, and marital status, all of which had to be redacted). Second, the custodian had redacted contact information for "non-employer references" without legal basis (unless those references were themselves public employees, in which case A.C.A. § 25-19-105(b)(13) protected their personal contact info). Third, the manner of redaction obscured the amount of information removed and the place where the redaction was made. A.C.A. § 25-19-105(f)(3) requires that a redaction visibly show both how much was removed and where, so that a requester can tell what is missing. The right tool is a black marker that blocks the words but preserves the visible footprint.

The opinion does not direct the custodian to release or withhold; it tells the custodian what to fix before releasing.

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.

Background and statutory framework

The Arkansas FOIA, A.C.A. § 25-19-101 et seq., creates a strong presumption that records maintained by public entities are open to inspection. The default rule is disclosure; the burden falls on the entity resisting release to identify a specific exemption.

Two exemptions matter for personnel files. A.C.A. § 25-19-105(b)(12) exempts "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court in Young v. Rice, 308 Ark. 593 (1992), established a two-step balancing test: first, is the information of a personal or intimate nature creating more than a de minimus privacy interest; if yes, does that privacy interest outweigh the public's interest in disclosure? The burden is on the party resisting disclosure (Stilley v. McBride, 332 Ark. 306 (1998)).

A.C.A. § 25-19-105(c)(1) covers "employee evaluation or job performance records." The Arkansas Supreme Court adopted the AG's definition in Thomas v. Hall, 2012 Ark. 66: records (1) created by or at the employer's behest, (2) to evaluate the employee, (3) that detail performance or lack of performance. Evaluation records cannot be released unless all four prongs in the statute are met: discipline (suspension or termination), finality, basis (the records formed the basis for the decision), and compelling public interest.

Watkins & Peltz, The Arkansas Freedom of Information Act (5th ed. 2009), provides the AG's working framework for what counts as a "compelling public interest": the nature of the infraction (especially breaches of public trust), the existence of a public controversy, and the employee's position in the agency.

Specific items always requiring redaction from personnel files (per a long line of AG opinions): dates of birth (Op. 2007-064), Social Security numbers (Ops. 2006-035, 2003-153), medical information (Op. 2003-153), undercover law enforcement identities (A.C.A. § 25-19-105(b)(10)), driver's license numbers (Op. 2007-025), insurance coverage (Op. 2004-167), tax and withholding (Ops. 2005-194, 2003-385), payroll deductions (Op. 98-126), banking information (Op. 2005-194), personal contact information (A.C.A. § 25-19-105(b)(13)), and marital and dependent status (Op. 2001-080).

Common questions

Is a police officer's personnel file public?

Generally yes, subject to mandatory redactions. The Arkansas FOIA presumes records maintained by public entities are open to inspection and copying. The personnel-records exception in A.C.A. § 25-19-105(b)(12) protects only items whose disclosure would be a "clearly unwarranted invasion of personal privacy," which the Arkansas Supreme Court reads narrowly. Standard intake records (job application, salary, education, prior employers, references, dates of hire, job title) have repeatedly been held releasable; sensitive personal information embedded in those records has to be redacted on a category-by-category basis.

What is the difference between a personnel record and an employee evaluation record?

A personnel record is everything in an employee's file that is not an evaluation: application, salary records, position changes, payroll, benefit enrollments, references, training certificates, disciplinary letters that are not evaluative, contact information. An evaluation record is a document the employer creates to assess the employee's job performance (formal performance reviews, written counseling about a specific performance failure, internal-affairs investigations of conduct, supervisor memoranda about discipline). The release standards are very different. Personnel records release subject to the privacy balancing test; evaluation records release only after a final suspension or termination decision they formed the basis for, plus a compelling public interest.

How should a custodian redact a record?

A.C.A. § 25-19-105(f)(3) requires the redaction to show both the amount of information removed and the place where the removal occurred. The reader of the redacted record needs to be able to see "this much is missing, right here." A solid black mark on a paper copy meets that standard. Whiting out the words (which leaves no visible trace) does not, because the requester cannot tell where information was withheld. The opinion calls out the Lowell custodian's redactions specifically for obscuring both amount and place.

Can a custodian redact a non-employee reference's contact information?

Only if the reference is also a public employee. If the reference works in the private sector, A.C.A. § 25-19-105(b)(13) does not apply, and there is no other statutory basis to withhold their address or phone number. The AG specifically flagged the Lowell custodian for redacting non-employee reference contact information without authority.

What happens to records about an officer's internal-affairs investigation?

Internal-affairs records that detail incidents giving rise to misconduct allegations are evaluation records under Thomas v. Hall. They are exempt from disclosure unless: (1) the officer was suspended or terminated; (2) the disciplinary process has run to a final administrative resolution; (3) the IA records were a basis for that decision; and (4) the public has a compelling interest in disclosure. An open IA investigation, a closed one without discipline, or a closed one with discipline that did not rise to suspension or termination, would all keep the IA records exempt.

What is the role of an AG opinion under A.C.A. § 25-19-105(c)(3)?

When a custodian, requester, or the subject of personnel or evaluation records disagrees about release, any of them can ask the AG for a written opinion on whether the custodian's proposed action complies with the FOIA. The AG's opinion is not binding (it does not order anyone to do anything), but it carries weight and is the cheapest first-pass dispute resolution available. If the dispute persists, the parties can move to court.

Citations

Statutes: A.C.A. § 25-19-103(5)(A) (definition of "public record"), § 25-19-105(b)(10) (undercover law enforcement), § 25-19-105(b)(12) (personnel records exception), § 25-19-105(b)(13) (personal contact information), § 25-19-105(c)(1) (employee evaluation records exception), § 25-19-105(c)(3)(B)(i) (request for AG opinion), § 25-19-105(f)(3) (manner of redaction).

Cases: Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden of proof on resister); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records).

Secondary authority: Watkins & Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed. 2009).

Prior AG opinions tying together the redaction categories: 2007-064 (DOB), 2006-035 (SSN), 2003-153 (SSN, medical), 2007-025 (driver's license), 2004-167 (insurance), 2005-194 (tax, banking), 2003-385 (tax), 98-126 (payroll deductions), 2001-080 (marital and dependent info), 1999-147 (definition of personnel records), 2005-004, 95-113 (work history), 2011-013 (offer letters), 2003-060 (education), 2001-368, 2001-091, 2006-165 (resumes, references), 2003-381 (recommendation letters), 2004-225, 2012-017, 2011-125, 2007-070 (standard employee data), 2006-176, 2004-260, 2003-336, 98-001 (privacy analysis is fact-specific), 2001-112, 2001-022, 94-198 (subject objection is not the test), 96-168 (purpose of evaluation exception), 2008-065 (four-prong test for evaluation release), 2009-067, 2003-073, 95-351, 93-055 (definition of evaluation records).

Source

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

Original opinion text

Opinion No. 2015-034
April 6, 2015
Thomas N. Kieklak
City Attorney
City of Lowell
113 East Emma Avenue
Springdale, Arkansas 72764
Dear Mr. Kieklak,
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

I am writing in response to your request for my opinion regarding the Arkansas
Freedom of Information Act ("FOIA"). Your request, which is made as the
custodian's attorney, is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013).
This statute 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 someone has requested "the complete
personnel file and any and all employee records for" a current police officer with
the City of Lowell Police Department. The custodian has gathered the responsive
documents, which are attached to your letter, and intends to disclose them with
certain redactions. It is not clear to me whether the custodian has classified the
attached documents as personnel records or as employee-evaluation documents.

You say that the police officer objects to the disclosure of the records because, he
says, their release "would constitute a clearly unwarranted invasion of personal
privacy." You also report that he "wishes to avail himself of any other exception
or provision of the FOIA which would prevent the release of his file under the
FOIA."

RESPONSE
My statutory duty is to state whether the decision of the custodian of records is
consistent with the FOIA. Having reviewed the records in dispute, it is my opinion
(1) that some of the records qualify as personnel records whose disclosure is
consistent with the FOIA; (2) that a few records qualify as employee evaluations,
which can only be disclosed if they formed the basis for a final suspension or
termination; and (3) that, as to the redactions, (a) some redactions were likely
improper, (b) some additional redactions need to be made to comply with the
FOIA, and (c) all the redactions were made in a manner that is inconsistent with
the FOIA because the material used to make each redaction obscures the amount
of information redacted and the place where the redaction was made.

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 qualify as a public record.
Third, no exceptions require that the document be withheld.

The first two elements are clearly met in this case. As for the first element, the
documents are held by the police department of the City of Lowell, which is a
public entity. As for the second element, the FOIA defines "public records" 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.

Based on my review, most of the attached documents are standard employee-
intake and documentation records (e.g. job application, salary, references). All
these documents reflect the performance of the Department's official functions,
which makes these documents public records. Further, there are several documents
that evaluate the officer's job performance. These documents clearly reflect the
performance of the official functions of both the officer and the Department.

In my opinion, all of the attached documents are public records 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.

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 test elaborated by Young v. Rice has two steps. First, the custodian
must assess whether the information contained in the requested document is of a
personal or intimate nature such that it gives rise to a greater than de minimus
privacy interest. If the privacy interest is merely de minimus, the thumb on the
scale favoring disclosure outweighs the privacy interest. Second, if the information
does give rise to a greater than de minimus privacy interest, the custodian must
determine whether that interest is outweighed by the public's interest in
disclosure. Because the exceptions must be narrowly construed, the person
resisting disclosure bears the burden of showing that, under the circumstances, his
privacy interests outweigh the public's interests.

Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact. The fact
that the subject of any such records may consider release of the records an
unwarranted invasion of personal privacy is irrelevant to the analysis because the
test is objective.

Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include: dates of birth of public employees (Op. 2007-064);
social security numbers (Ops. 2006-035, 2003-153); medical information (Op.
2003-153); any information identifying certain law enforcement officers currently
working undercover (A.C.A. § 25-19-105(b)(10)); driver's license numbers (Op.
2007-025); insurance coverage (Op. 2004-167); tax information or withholding
(Ops. 2005-194, 2003-385); payroll deductions (Op. 98-126); banking information
(Op. 2005-194); personal contact information (A.C.A. § 25-19-105(b)(13));
marital status of employees and information about dependents (Op. 2001-080).

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 of 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

Having applied the foregoing definitions and standards to the attached documents,
I have reached several conclusions. First, the documents contain several public
records that qualify as the officer's employee evaluations. If these records did
not form the basis for the officer's suspension or termination, then the FOIA
prohibits their release.

Second, all remaining records can be classified as the officer's personnel records.
Additionally, this Office has long held that the release of these types of records is
required by the FOIA because their release does not constitute a clearly
unwarranted invasion of personal privacy. Third, numerous redactions must be
made from these records. For purposes of this Opinion, we can divide the FOIA's
redaction rules into two categories: the manner of making the redaction and the
type of information being redacted. As to the manner of redaction, the FOIA
requires that a redaction be made in such a way that one can see both the "amount"
and "place" of the redaction. This was not accomplished in the case at hand. The
material used to make the necessary redactions in this case obscures both the
amount of information deleted and the place in the record where the deletion was
made.

As to the type of information being redacted, most of the redactions the custodian
has made are consistent with the FOIA. But some redactions do not seem to be
supported by the FOIA, specifically, the contact information for non-employer
references. If these references were or are public employees, then their personal
contact information is exempted from disclosure. But if they were never public
employees, then the FOIA does not provide a basis for redacting their contact
information.

Further, the FOIA requires that much more information be redacted. For example,
the records are replete with information about the officer's personal finances,
information on dependents, and marital status. As noted above, the disclosure of
this information would be a clearly unwarranted invasion of personal privacy. The
custodian must therefore review the foregoing section of this opinion addressing
what information must be redacted, and then go through the records again to make
those redactions.

In conclusion, it is my opinion (1) that some of the records qualify as personnel
records whose disclosure is consistent with the FOIA; (2) that a few records
qualify as employee evaluation, which can only be disclosed if they formed the
basis for a final suspension of termination; and (3) that, as to the redactions, (a)
some redactions were improper, (b) some additional redactions need to be made to
comply with the FOIA, and (c) all of the redactions were made in a manner that is
inconsistent with the FOIA.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

LESLIE RUTLEDGE
Attorney General
LR/RO:cyh