Under Arkansas FOIA, can a police department release the names of sworn officers who were 'relieved of duty,' including officers who were later exonerated?

Plain-English summary

Sergeant James T. Sloan of the Little Rock Police Department's FOIA Unit received an FOIA request for "a listing of [the names of] Little Rock Police Department sworn personnel who have been relieved of duty, for whatever reason, within the last five years." LRPD had such a list and believed it had to be disclosed. The harder question, on which LRPD sought AG guidance, was whether the list could include officers who were "relieved of duty but later exonerated subsequent to a departmental investigation."

The AG said yes, the list (including the exonerated officers) had to be disclosed. The analysis ran through the two-track FOIA personnel framework.

First, what kind of record is a list of names with the fact of being relieved of duty (and nothing else)? Not an employee-evaluation record. Employee-evaluation records are documents created by or at the behest of the employer to evaluate the employee's performance. A bare list of names with the fact of suspension does not evaluate anyone; it just states the fact of adverse action. The AG had previously opined (citing Op. 2013-155 and Op. 2006-147) that records stating only the fact of an adverse employment action, without going into the reasons, are personnel records.

Second, as personnel records, they are disclosable unless disclosure constitutes a "clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test (described in Op. 2015-034 and many earlier opinions) weighs the employee's privacy interest against the public's interest in disclosure.

On the public-interest side, the AG said the weight was substantial. A list of police officers relieved of duty sheds light on the Department's exercise of its disciplinary authority and on patterns of police misconduct or investigation outcomes. Disclosure tells the public "what their government is up to" in the most direct way, citing Stilley v. McBride (1998) quoting Department of Defense v. FLRA (1994).

On the privacy side, the weight was light. An officer's privacy interest in the mere fact of having been relieved of duty is minimal, even if the officer was later exonerated. Past AG opinions had held that even "cleared of any wrong doing" does not, by itself, create a privacy interest substantial enough to outweigh the public interest. Unsubstantiated or unfounded complaints can still be disclosed under the personnel-records balancing test (Op. 2013-002; Op. 2011-152; Op. 2000-179).

The balance favored disclosure. The exonerated officers were therefore included on the list to be released.

The AG acknowledged the apparent unfairness: an officer who was suspended pending an investigation, then cleared, would still appear on a public list of "relieved of duty." The AG offered a remedy through § 25-19-105(c)(2): the officer could obtain the exonerating records themselves and release those records as he or she saw fit, providing context the bare list did not include. This is a self-help remedy that depends on the officer's initiative, not on the Department withholding the original list.

The AG also flagged a limit on the opinion: not having seen the records, the AG could not opine on whether any specific document fell within the personnel-record category. The general analysis applied to the bare list of names with the fact of being relieved of duty.

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

Arkansas FOIA distinguishes between two categories of employment-related records: "personnel records" and "employee evaluation or job performance records."

Personnel records under § 25-19-105(b)(12) are all records other than employee evaluations or job-performance records that pertain to individual employees. They are disclosable unless disclosure would constitute a "clearly unwarranted invasion of personal privacy." The standard for that question is the two-step Young v. Rice balancing test.

Employee-evaluation or job-performance records under § 25-19-105(c)(1) are records created by or at the behest of the employer to evaluate the employee. They are exempt from disclosure unless: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records formed the basis for the decision; and (4) there is a compelling public interest in disclosure.

The classification step matters. A document that is a personnel record gets the Young v. Rice balancing test, which usually favors disclosure. A document that is an employee-evaluation record gets the four-element test, which is harder to meet and often favors withholding.

The AG's reasoning that a list of names with the fact of being relieved of duty is a personnel record (not an employee-evaluation record) flowed from a body of prior opinions about similar records. A termination letter that states only the fact of termination without giving the reasons has been treated as a personnel record. A termination letter that describes the conduct that led to termination has been treated as an employee-evaluation record.

The Young v. Rice balancing test has two steps. Step one: is the information of a personal or intimate nature giving rise to a greater-than-de minimis privacy interest? Step two: if yes, is the privacy interest outweighed by the public's interest in disclosure (measured by what disclosure tells the public about government operations)? The leading case interpreting the public-interest side is Stilley v. McBride (1998), which adopted the federal Department of Defense v. FLRA formulation.

The remedy in § 25-19-105(c)(2) lets the subject of personnel or employee-evaluation records obtain copies, even if those records are exempt from public disclosure. An exonerated officer could use that mechanism to get the exonerating documentation and release it voluntarily, putting context around what the public list shows.

Common questions

Could LRPD withhold the names of officers who were later exonerated?
No, under this opinion. The AG read the FOIA personnel-records balancing test as favoring disclosure of the bare list, including officers exonerated after investigation. The fact of being relieved of duty was the record at issue, and that fact remained true even if the investigation cleared the officer.

Did the AG see the actual list before opining?
No. The AG explicitly noted "[n]ot having seen any of the records at issue, I cannot opine about the release of any specific record." The opinion was general guidance on the legal framework, applied to the type of record described.

What if the list included reasons for the suspension, not just the fact?
That would change the analysis. A list with reasons would likely be an employee-evaluation record, subject to the more restrictive four-element test, which would often require withholding for officers who were not actually suspended or terminated as a final disciplinary outcome.

Could an exonerated officer prevent disclosure of his name?
No. The officer's subjective view that release would invade their privacy is irrelevant because the Young v. Rice balancing test is objective. The officer can, however, obtain the exonerating records under § 25-19-105(c)(2) and voluntarily release them to provide context.

Are citizen complaints against officers subject to the same rule?
The AG cited Op. 2013-002 for the proposition that citizen complaints or allegations are subject to disclosure under the personnel-records balancing test, even if the complaint is unsubstantiated. That suggests yes, the same logic applies.

What about officers who were briefly reassigned but not formally suspended?
The opinion treats "relieved of duty" as including being "administratively suspended from all duties or temporarily reassigned to different duties while allegations of misconduct are investigated." The full range of pre-resolution adverse personnel actions falls within the analysis.

Source

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

Original opinion text

Opinion No. 2015-053
May 15, 2015

Sergeant James T. Sloan
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Little Rock Police Department
FOIA Unit
700 West Markham
Little Rock, Arkansas 72201-1329

Dear Sergeant Sloan:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Repl. 2014). 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.

Your letter indicates that the Little Rock Police Department has received an FOIA request for "a listing of [the names of] Little Rock Police Department sworn personnel who have been relieved of duty, for whatever reason, within the last five years." You have such a list and believe that it must be disclosed. You are seeking my opinion because you are less certain about your decision as it applies to "officers that may have been relieved of duty but later exonerated subsequent to a departmental investigation." By the term "relieved of duty" I understand that you are referring to an employee being administratively suspended from all duties or temporarily reassigned to different duties while allegations of misconduct are investigated.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Not having seen any of the records at issue, I cannot opine about the release of any specific record. Instead, I can opine generally about how the FOIA applies to the specific types of documents at issue. A public record that merely lists personnel who have suffered adverse employment action and that does not give any further detail about the reason for the adverse action is properly considered a personnel record that should be released. Therefore, in my opinion, your decision to disclose this list is consistent with the FOIA.

DISCUSSION

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. Because the only element at issue is whether any exceptions apply, I will focus my analysis only on that element.

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 tests for the disclosure of these two types of documents may be released differ 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.

As I understand it, the list that you intend to disclose contains only the names of the personnel together with the fact that they were relieved of duty at some point in the last five years. This list is, in my opinion, most analogous to a letter that states the fact that an employee suffered an adverse employment action without also going into the reasons for the adverse action. This office has opined that such records qualify as personnel records.

As a personnel record, the list must be released unless doing so "constitutes a clearly unwarranted invasion of personal privacy." This office has further opined that records akin to this list must be released because their disclosure does not rise to the level of a clearly unwarranted invasion of personal privacy. The test for the disclosure of personnel records is a balancing test, which requires custodians to weigh the employee's privacy interest in the record against the public's interest in obtaining the record. The public's interest is measured by the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties or otherwise let citizens know 'what their government is up to.'" Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (quoting Dept. of Defense v. FLRA, 510 U.S. 487, 497 (1994)).

In my opinion, the test requires that the list be disclosed. The public-interest side of the scale is weighty. This is because the public has a strong interest in the list at issue because the list clearly sheds light on the Department's performance of its official duties. The privacy side of the scale is comparatively very light. This is because the personnel on the list have little to no privacy interest in the mere fact that they suffered an adverse employment action. This is true even for those who were later exonerated and, presumably, restored to full duty. This office has previously noted that the mere fact that law-enforcement personnel are later "cleared of any wrong doing" does not, standing alone, give rise to a privacy interest sufficient to outweigh the public's interest. This office has also noted in similar contexts that citizen complaints or allegations are subject to disclosure under the personnel-records balancing test, even if the complaint or allegation is unsubstantiated or later determined to be unfounded. I recognize that it may seem unfair to release a record reflecting adverse employment action if the employee was later exonerated and fully restored to duty. The solution under the FOIA is for the employee to obtain his or her own exonerating records pursuant to section 25-19-105(c)(2) and release them as he or she sees fit.

In conclusion, it is my opinion that your decision to disclose the list is consistent with the FOIA.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/RO:cyh