Can the Arkansas State Police refuse a FOIA request for records of an incident involving one of their officers?

Plain-English summary

Drew Tanner asked the AG whether the Arkansas State Police could lawfully refuse his FOIA request for records of a specific incident involving a state police officer. The AG could not assess the specific records (they were not provided for review) but laid out the general rule: under Ark. Code Ann. § 25-19-105(c)(1), employee evaluation records are closed and confidential unless three conditions are met, including, as a threshold, that the officer has been suspended or terminated. If the officer was never suspended or terminated, the evaluation records cannot be released. The AG distinguished between "personnel records" (job application, salary info, etc., subject to a balancing test for personal privacy) and "employee evaluation records" (performance reviews, internal investigations, disciplinary documents, subject to the suspension/termination threshold).

Currency note

This opinion was issued in 2016. 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

Q: What's the difference between "personnel records" and "employee evaluation records"?
A: Personnel records are administrative documents about an individual employee (job application, contact info, work history). They are subject to FOIA release with a balancing test for personal privacy. Employee evaluation records are performance reviews, internal investigations, and disciplinary documents. They are closed unless the employee is suspended or terminated and the conduct underlying the suspension/termination is at issue.

Q: What's the suspension/termination threshold?
A: § 25-19-105(c)(1) opens evaluation records only if (1) there has been a final administrative resolution of any suspension or termination, (2) the records form the basis for the decision, and (3) there is a compelling public interest in disclosure. The first prong is jurisdictional: no suspension or termination, no access.

Q: What about a police shooting or use-of-force incident?
A: Internal investigation records of a shooting or use-of-force incident are typically evaluation records. If the officer is not suspended or terminated, those records stay closed. Other records (incident report, public-facing documents, court filings) may be available through other mechanisms.

Source

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

Official summary

Is the records custodian's decision to deny a Freedom of Information Act ("FOIA") request for records of a particular incident involving a State Police officer consistent with provisions of the FOIA? RESPONSE: Not having seen the records, I cannot say whether that decision is correct; nor can I conclusively opine on whether the custodian has properly determined that the records are exempt under the relevant test for disclosure. I can only opine generally that employee evaluation records are closed and confidential except upon the occurrence of certain specified events including, as a threshold matter, the employee's suspension or termination. Accordingly, if in fact the employee in this case was never suspended or terminated, then the custodian has properly determined that his evaluations records--the test for which is discussed in the opinion--cannot be released.

Original opinion text

Opinion No. 2016-130
December 13, 2016
James A. "Drew" Tanner
815 West Cherry A venue
Searcy, AR 72143
Dear Mr. Tanner:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
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)
(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 you made a request to the Arkansas State
Police ("ASP") for "reports filed, dispatch logs, radio chatter, dashcam/MVR
footage, emails, texts, and all records" associated with an incident that occurred at
a place of business on December 4, 2014. The records custodian has stated that "a
search of department records that may meet the criteria for release as prescribed
under [Ark. Code Ann.] § 25-19-105 has failed to produce an affirmative
response." 1 The custodian did note that he has a copy of the complaint you filed
with the Arkansas State Police Office of Professional Standards. As to that
document, the custodian has specifically invoked Ark. Code Ann. § 25-19-
105( c )(1 )-the exemption for employee evaluation records-stating that a
complaint "was determined to be unfounded." You have asked for my opinion
"regarding the [custodian's] denial and non-compliance with certain statutes of the
[FOIA]."
1 Jn the response to your request, the custodian noted that ASP has directed a request to the
Arkansas Department of Information Services to identify and provide copies of any emails
responsive to your FOIA request.
323 CENTER STREET, SUITE 200 · LITTLE RDCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV James A. Tanner
Opinion No. 2016-130
Page 2
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. I must emphasize as a preliminary matter in this regard that my duty is
limited to reviewing the custodian's decision with respect to the' release of
personnel or employee evaluation records that the custodian has determined are
responsive to the request. I am not authorized or required to address concerns
about whether the custodian has properly identified responsive records or has
failed in some other respect to comply with the FOIA. Identifying records
responsive to the request is a task uniquely within the custodian's purview, both as
a statutory matter and as a practical matter because it requires factual
determinations that are outside the scope of an opinion from this office.2 I have
not been given the power or duty to compel the production of records or, if
necessary, to act as a fact-finder in rendering opinions concerning them.3 The
FOIA has no provision establishing a state compliance office and does not
authorize the Attorney General to enforce FOIA requests.4
This opinion must therefore be limited to a discussion of the pertinent provisions
of the FOIA bearing on employee evaluation records. The custodian has
determined that the responsive record(s) to your FOIA request qualifies as this
type of record. Not having seen the records, I cannot say whether that decision is
correct; nor can I conclusively opine on whether the custodian has properly
determined that the records are exempt under the relevant test for disclosure. I can
only opine generally that employee evaluation records are closed and confidential
except upon the occurrence of certain specified events including, as a threshold
matter, the employee's suspension or termination. Accordingly, if in fact the
employee in this case was never suspended or terminated, then the custodian has
properly determined that his evaluations records-the test for which is discussed
below-cannot be released.
2 See Op. Att'y Gen. Nos. 2016-043, 2011-094, and 2006-158.
3 See Op. Att'y Gen. 2005-236 (and opinions cited therein).
4 The FOIA provides two methods of enforcement. First, if a citizen believes the FOIA has been
violated, he may contact the county prosecuting attorney and request that criminal charges be
filed against the custodian of the public records. Second, if the prosecutor views the complaint as
a civil matter, the citizen may file his own lawsuit in circuit court. Ark. Code Ann. § 25-19-107. James A. Tanner
Opinion No. 2016-130
Page 3
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 ASP, which is a public entity. As for the second element,
the FOIA defines "public record" as:
[W]ritings, 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.5
In my opinion, the information and records requested are public records under this
definition 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.6 For purposes of the FOIA, these items can usually
5 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015).
6 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. 97-368; John J. Watkins & Richard J. Peltz,
THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009). James A. Tanner
Opinion No. 2016-130
Page 4
be divided into two mutually exclusive groups: "personnel records"7 or "employee
evaluation or job performance records."8 The test for whether these two types of
documents may be released differs significantly.
The custodian, in this instance, has apparently identified some of the records
responsive to your FOIA request as employee evaluation records. I will therefore
limit my discussion to that particular category of record.
a. Employee-evaluation exception.
The FOIA does not provide a specific definition for "employee evaluation or job
performance records." 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.9 This exception includes records
generated while investigating allegations of employee misconduct that detail
incidents that gave rise to an allegation of misconduct.10
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); ·
   7 Ark. Code Ann. § 25-19-105(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."
   8 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b )(12) 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."
   9 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
   2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
   10 Thomas, 212 Ark. 66, at 9-10, 399 S.W.3d at 392-93. James A. Tanner
   Opinion No. 2016-130
   Page 5
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).11
   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 ag~ncy
   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. 12
   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, 13 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.
   11 Ark. Code Ann.§ 25-l9-l05(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065.
   12 Watkins & Peltz, supra note 2, at 217-18 (footnotes omitted).
   13 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."). James A. Tanner
   Opinion No. 2016-130
   Page 6
   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.14
   III. Application.
   I have not seen any records at issue in this instance and thus I cannot determine
   conclusively whether any of the records that have been requested are properly
   classified as employee-evaluation records so as to make applicable the four-part
   test described above. As indicated above, however, records generated as part of an
   internal investigation typically are properly classified as employee evaluation
   records.15 To the extent some of the records you have requested fall into this
   classification, the pertinent threshold inquiry as to such records is whether there
   has been a "suspension" or "termination" such that the first prong of the above test
   has been met. This ot1ice has long recognized that a suspension or termination is a
   threshold requirement for the release of employee evaluation records.16 If there
   has been no suspension or termination, then the other prongs of the test are
   inapplicable and the employee evaluation record(s) is exempt from disclosure.
   In conclusion, I cannot render any definitive opinion regarding the custodian's
   decision in this instance. I am instead limited to explaining the law governing
   release of the type of employee-related records that appears to be at issue-
   employee evaluation records. The custodian must apply the above definitions and
   tests to each specific record to determine whether the FOIA requires its disclosure.
   Sincerely,
   ~/~~
   LESLIE RUTL~
   Attorney General
   14 Cf Op. Att'y Gen. 96-168; Watkins & Peltz at 204.
   15 See also Ops. Att'y Gen. 2016-095, 2012-112, 2007-272, 2007-025, 2006-106, 2005-267,
   2005-030, 2004-178, 2003-306, and 2001-063.
   16 E.g., Op. Att'y Gen. 2014-095 (and opinions cited therein).