Could the Fort Smith Police Department release records of a sexual harassment internal investigation after redacting the complaining officer's identity?

Plain-English summary

Fort Smith Police Chief Kevin Lindsey asked the AG to review the department's FOIA response to a request for the internal investigation file on a sexual harassment complaint. A female officer in training had complained that her assigned training officer had sexually harassed her. The investigation concluded, the training officer received a 30-day disciplinary suspension without pay, and someone then requested the internal investigation case file. The custodian classified the records as employee-evaluation records, decided to release the file, and proposed to redact the female complainant's identity from all records.

The AG agreed the records had to be released but reached the conclusion through a different analysis than the custodian had used, and identified additional redactions the custodian had missed.

Classification. The records qualified as employee-evaluation records of the training officer because they were "created by or at the behest of the employer to evaluate the employee" and detailed "the employee's performance or lack of performance on the job" (Thomas v. Hall). But the records were also "mixed records": they were also the complainant's personnel records, because they pertained to her as a public employee.

Release. As employee-evaluation records of the training officer, they could be released only if all four prongs were met: (1) discipline (suspension or termination), (2) finality of the administrative resolution, (3) the records formed the basis for the discipline, and (4) compelling public interest. All four were met. The 30-day suspension satisfied prongs 1 and 2. The records formed the basis for that suspension, satisfying prong 3. And the AG had previously opined that a compelling public interest exists when (a) a supervisor sexually harasses a subordinate and (b) a law enforcement official violates policy; either alone is enough, and both were present here.

Complainant's identity. As the complainant's personnel records, the records' release of her identity was governed by the Young v. Rice balancing test. Given the highly sensitive nature of being a sexual harassment victim, the complainant had a very strong privacy interest. The public's strong interest in the details of the misconduct could be satisfied by releasing the substance of the investigation while redacting her identity, mirroring the approach Young v. Rice itself sanctioned. The custodian's decision to redact her name was correct.

But the AG noted four additional necessary redactions the custodian had overlooked. The complainant's name appeared twice on a September 29, 2015 suspension letter. The file contained screenshots of text messages, at least one of which contained part of her name. Some of those screenshots contained photographs that could identify her. And both audio and text files contained details of a past sexual relationship that should be redacted if they could identify her. The custodian was also advised to evaluate references to the complainant's family members on page 3 of an undated investigator-notes document.

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 classification framework is the same as in companion Opinions 2015-125 and 2015-130: personnel records and employee-evaluation records are mutually exclusive, and each has its own release test. The employee-evaluation definition adopted in Thomas v. Hall covers records created by or at the behest of the employer to evaluate the employee that detail performance or lack of performance, and specifically includes records generated while investigating allegations of employee misconduct.

The four-part test for releasing employee-evaluation records: discipline (suspension or termination), finality (final administrative resolution of the proceeding), basis (the records formed the basis of the disciplinary decision), and compelling public interest. The Watkins and Peltz treatise factors (nature of infraction, public controversy, employee rank) shape the compelling-interest determination.

Prior AG opinions had specifically held that a compelling public interest exists when a supervisor sexually harasses a subordinate (Op. Att'y Gen. 2013-048, 2002-095, 91-003) and when a law-enforcement official violates policies (Op. Att'y Gen. 2015-077 and opinions cited therein). Either of those is sufficient on its own. Both were present in this case.

The mixed-record framework requires applying each test to each lens. The supervisor's evaluation-record interest is judged under the four-part test, and the complainant's personnel-record interest is judged under the Young v. Rice balancing test. The two analyses run in parallel rather than in conflict.

Young v. Rice authorizes redacting the complainant's identity rather than withholding the whole document where the public interest is in the conduct rather than the identity of the victim. The AG endorsed that approach here and identified additional categories of items that required redaction beyond just the name.

Common questions

Why did the AG say the custodian reached the right outcome for the wrong reasons?

The custodian correctly classified the file as the training officer's employee-evaluation records. The AG disagreed with the custodian's reason for finding a compelling public interest: the department had cited the incident's proximity to an unrelated matter involving another officer. The AG instead relied on the supervisor's harassment of a subordinate and the law enforcement officer's policy violation, either of which was sufficient under prior AG opinions.

Was the female officer's identity protected?

Yes. Her identity required redaction because of her strong privacy interest as the victim of sexual harassment. The substance of the misconduct could be released without revealing her identity. The AG also identified four additional places where her identifying information appeared and needed to be redacted, plus a need to carefully evaluate references to her family members.

Could the records have been withheld until administrative review was complete?

Yes, that was the rule for employee-evaluation records. Until the disciplinary suspension was finally resolved administratively, the records could not be released. Once the suspension was final, the test moved to the compelling-public-interest analysis.

What is a "mixed record"?

A record that can be classified as more than one person's evaluation, more than one person's personnel record, or at least one person's evaluation and at least one person's personnel record. The AG flagged this is a common pattern in misconduct files where the complainant and the subject are both public employees.

Why does sexual harassment of a subordinate by a supervisor establish a compelling public interest?

The AG cited prior opinions finding a compelling public interest when a supervisor sexually harasses a subordinate. She also cited prior opinions finding that interest when a law enforcement officer violates policy, and said either circumstance was sufficient here.

Citations

• Ark. Code Ann. § 25-19-103(5) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identity exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records, four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review channel)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation record definition)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed. 2009)
• Op. Att'y Gen. 2013-048, 2002-095, 91-003 (compelling public interest in supervisor-subordinate sexual harassment cases)
• Op. Att'y Gen. 2015-077 (compelling public interest in law enforcement policy violations)
• Op. Att'y Gen. 2015-057 (mixed-record framework)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/
• Official PDF: https://ag-opinions.s3.amazonaws.com/uploads/2015-129.pdf

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-129

October 30, 2015

Chief Kevin Lindsey
Chief of Police
Fort Smith Police Department
100 South 10th Street
Fort Smith, AR 72901

Dear Chief Lindsey:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of records, is pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). 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 correspondence indicates that on September 16, 2015, the Fort Smith Police Department ("Department") began an internal affairs investigation. You say that "a female officer in training filed a complaint regarding sexual harassment involving her assigned training officer." You say further that the investigation has concluded and that the assigned training officer received a disciplinary suspension of 30 days without pay. Someone has requested the internal investigation case file.

The custodian has classified all the responsive records as employee-evaluation records. You say that it is the Department's "stance that a compelling public interest [in the file] may exist" because the offense occurred in such close proximity to an entirely separate matter involving a different officer. The custodian has determined that the internal-affairs file should be released but that the identity of the complainant (i.e. the female officer) be redacted from all records.

323 CENTER STREET, SUITE 200 • LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

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Opinion No. 2015-129
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RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the redacted records, it is my opinion that (1) the custodian properly classified all the responsive records as employee-evaluation records; (2) the custodian correctly concluded-though for the wrong reasons- that the records must be disclosed; and, (3) the custodian's decision to redact the female officer's identity is consistent with the FOIA, though at least four additional redactions should be made.

DISCUSSION

I. General standards governing disclosure

Responsive documents must be disclosed in response to an 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 documents must constitute public records. Third, no exceptions allow the documents to be withheld.

Having reviewed the documents at issue, the first two elements are clearly met. The documents were created by the Department, which is a public entity. Thus, the first element is met. Element two is also met. A document is a public record if ( 1) it is a writing, recording, or electronic information, (2) that is kept, and (3) that reflects the performance or lack of performance of official functions. 1 The records at issue plainly meet this definition: they are clearly kept, and they reflect both the performance of the Department in its internal-affairs investigation and the performance of both the officer in training and her training officer. Therefore, the records are public records and must be disclosed unless an exception specifically prevents their disclosure.

1
Ark. Code Ann. § 25-19-103(5) (Supp. 2015).

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Opinion No. 2015-129
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II. Exceptions to disclosure

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files.2 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 3 or "employee evaluation or job performance records." 4 The tests for whether 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.
a. Personnel-records exception

The first of the two most relevant 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

2
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms ; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g. Op. Att'y Gen. No. 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed ., 2009). 3 Ark. Code Ann. § 25-19-1 OS(b)(12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter .. ..
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 4 Ark. Code Ann. § 25-19-lOS(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

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performance records that pertain to individual employees. 5 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. " 6

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 7 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 ~rivate. The balancing takes place with a thumb on the scale favoring disclosure.

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. 9 If the privacy interest is merely de minimus, then 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, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. Io 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. 1I The fact that

5
See, e.g., Op. Att'y Gen. No. 1999-147; Watkins & Peltz, supra note 2, at 187.
6
Ark Code Ann.§ 25-19-105(b)(12) (Supp. 2015).
7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins & Peltz at 191.
9
Young at 598, 826 S.W.2d at 255.

10 Id.

11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

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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 12 objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 13

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 (among other things): 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 (Ark. Code Ann. § 25- l 9- 105(b)(10)); tax information or withholding (Ops. 2005-194, 2003-385); and marital status of employees and information about dependents (Op. 2001-080).
b. Employee-evaluation exception

The second relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has held that 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. 14 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 15

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);

12
E.g. Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198 .
13
Op. Att'y Gen . Nos . 2006-176, 2004-260, 2003-336, 98-001.
14
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; see also, Op. Att'y Gen. Nos. 2009-067; 2008- 004; 2007-225; 2006-038; 2005-030; 2003-073; 95-351; 93-055.

1s Id.

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Opinion No. 2015-129
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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). 16

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. 17

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a

16
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. No. 2008-065 .
17
Watkins & Peltz, supra note 2, at 217-18 (footnotes omitted).

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"compelling public interest" exists, 18 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. 19

III. Application

We are now in a position to apply the foregoing standards to the records at issue. As noted above, the first step in analyzing these records' disclosure is to classify them. While the custodian is certainly correct to classify these documents as employee evaluations, they are also the personnel records of the complainant. Each one of the records is what can be called a "mixed record. " 20 A record is "mixed" when it can be classified as (1) more than one person's evaluation, (2) more than one person's personnel record, or (3) at least one person's evaluation and at least one person's personnel record. The latter is the case here, for the records qualify as the supervisor's employee-evaluation records, and the records qualify as the personnel records of the complainant because they pertain to her.

Having classified the records, one must apply the relevant test for disclosure. Because the records qualify as the supervisor's employee-evaluation records, they cannot be released unless the foregoing four-part test is met. Because the test is met, the records must be released. The records at issue formed the basis for the final suspension (thus meeting Elements 1, 2, and 3). Further, this office has opined that a compellinf public interest exists when (a) a supervisor sexually harasses a subordinate 2 and (b) when a law-enforcement official violates

18
Id. at 216 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue."). 19 See Op. Att'y Gen. No. 96-168; Watkins & Peltz at 204.
20
See Op. Att'y Gen. No. 2015-057, n.18 (and accompanying text).
21
See Op. Att'y Gen. Nos. 2013-048, 2002-095, 91-003.

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policies. 22 Either scenario is sufficient to determine that a compelling public interest exists. Since both scenarios are present here, a compelling public interest exists, (thus meeting Element 4). Therefore, the records must be disclosed.

But the records also qualify as the complainant's personnel records. Therefore, her identity must be disclosed unless doing so constitutes a "clearly unwarranted invasion" of her personal privacy. The first step in assessing whether that is the case here is identifying and weighing any privacy interests at stake. Given the highly sensitive nature of being the victim of sexual harassment, there is clearly a very high privacy interest. The public also has a very strong interest in knowing the· details of the improper conduct that gave rise to the complaint and subsequent discipline. As in Young v. Rice, this interest is satisfied by disclosing the details of the event while redacting the complainant's identity. Therefore, the custodian has properly decided to redact the complainant's identity. I will note, however, that at least four necessary redactions have been overlooked. 23 The custodian should take special care to redact, not just her name, but any information that could identify her.

Sincerely,

~-~ · //?>..-&'~
LESLIE RUTLEDGE
Attorney General

22
See generally Op. Att'y Gen. No. 2015-077 (and opinions cited therein).
23
The additional redactions are: (1) the complainant's name appears twice on a document dated September 29, 2015 and entitled "Suspension Letter"; (2) the file contains screenshots of text messages, at least one of which contains part of the complainant's name; (3) the screenshots of the text messages also contain pictures that should be redacted if they could identify the complainant; and (4) details of a past sexual relationship, both in the audio and text files. The custodian should also carefully evaluate the references to the complainant's family members on page 3 of an undated document entitled "Investigator Notes."