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

The City of Lowell received a FOIA request for a current police officer's complete personnel file and employee records. The custodian planned to disclose the gathered records with redactions. The officer objected on privacy grounds, and the city attorney asked Attorney General Leslie Rutledge to review the proposed response.

The AG found that the documents included two kinds of records. Most were personnel records, such as job-application, salary, and reference documents. She concluded those types of records were generally disclosable under the personnel-record privacy balancing test. A few were employee evaluation records. The opinion does not name or date individual evaluation documents. It says an evaluation record cannot be released unless the required suspension or termination, final administrative resolution, basis for the decision, and compelling public interest conditions are met. In the application, the AG emphasized that records not forming the basis for a suspension or termination must be withheld.

The custodian's redactions needed further work. The material used for redaction concealed both the amount removed and its place in the document, contrary to the FOIA method described by the AG. The custodian also appeared to have redacted contact details of references who were not the officer's employers. The AG said a reference's personal contact information could be protected if the reference was or had been a public employee; if never a public employee, she found no FOIA basis for that redaction.

At the same time, the records contained unredacted personal finances, dependent information, and marital status. The AG directed the custodian to review the records again and remove information whose release would clearly and unwarrantedly invade privacy. Her conclusion was mixed: release of some personnel records was consistent with FOIA, a few evaluation records required the stricter test, and the manner of all existing redactions was inconsistent with FOIA.

Currency note

This opinion was issued in 2015. Verify current FOIA law before applying its classifications or redaction rules. The AG reviewed particular attachments, but this page's stored opinion text does not reproduce them or identify the evaluation records individually.

Common questions

Can the custodian release the entire police personnel file as one category? No. The AG distinguished personnel records from employee evaluation records and applied different release tests. She said most of the reviewed records fell in the first category, while a few fell in the second.

Which exact documents did the AG identify as evaluations? The stored opinion names no specific documents or dates. It says several or a few reviewed records qualified; the attachments are not reproduced here.

What was wrong with the redaction method?
The AG said the material used hid both how much was removed and where. A requester must be able to see the amount and place of a redaction, even though the withheld content remains hidden.

Should every reference's contact information be withheld? The AG drew a factual distinction. Contact information was exempt if a reference was or had been a public employee. If a reference had never been a public employee, she found no FOIA basis for withholding that information in these records.

What additional material needed attention?
The AG specifically mentioned personal finances, dependents, and marital status. She directed the custodian to review the redaction discussion and go through the records again before release.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) authorized the request for an AG opinion on release of personnel or evaluation records. The opinion uses the Young v. Rice privacy balance for personnel records and describes four conditions for release of evaluation records. It also cites specific FOIA provisions concerning certain undercover officers' identifying information and public employees' personal contact information.

The opinion gives two separate redaction instructions: decide what is exempt and make any redaction in a way that shows its amount and place. Correct classification and correct redaction are both needed for a lawful response.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• A.C.A. § 25-19-105(b)(10) (certain undercover officer information)
• A.C.A. § 25-19-105(b)(13) (public employee contact information)
• Young v. Rice (personnel-record privacy balancing)

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