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 Arkansas Attorney General to review the State Police response to his FOIA request for reports, logs, recordings, messages, and other records of an incident involving an officer. The custodian said its search had not produced releasable records and identified a copy of Tanner's complaint to the Office of Professional Standards as exempt under the employee-evaluation provision.

Attorney General Leslie Rutledge had not seen the records. She therefore could not decide whether the custodian correctly classified them or correctly denied their release. Her review authority was limited to a custodian's decision about responsive personnel or employee-evaluation records; she could not decide whether the agency had found every responsive record or compel production.

The AG explained the conditional rule for an employee-evaluation record. If the officer was never suspended or terminated, such a record cannot pass the threshold for public release. The custodian must still decide whether a particular record actually qualifies as an evaluation record. The opinion did not rule on the other categories of records Tanner sought.

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.

What this means for you

FOIA requesters

This opinion did not uphold the entire denial. The AG had no records to examine and could only describe the employee-evaluation test. It did not decide whether police reports, dispatch logs, recordings, or messages were found or should be released.

State Police records custodians

Apply the employee-evaluation definition to each record claimed under that exception. The AG said that a qualifying evaluation record cannot be released if the officer was never suspended or terminated. The separate question of finding all responsive records remained with the custodian.

Common questions

Q: Did the AG say the State Police properly denied Tanner's whole request? A: No. She had not seen the records and could not decide the denial or the completeness of the search.

Q: When is an employee-evaluation record closed under this opinion? A: It cannot be released unless the employee was suspended or terminated and the other conditions for release are met. The AG applied that rule conditionally because she lacked the actual records and facts.

Q: What if a responsive document is a personnel record instead? A: The opinion says personnel and evaluation records have different release tests. It limited its detailed discussion to evaluation records and did not classify unseen documents.

Background and statutory framework

The opinion describes an evaluation record as one made by or at the employer's behest to evaluate an employee and detail job performance. For public release, the employee must have been suspended or terminated, the proceeding must have reached final administrative resolution, the record must have formed a basis for the decision, and disclosure must serve a compelling public interest. The AG emphasized that classification and factfinding belong to the custodian when the records are not supplied for review.

Citations and references

Statutes: Ark. Code Ann. § 25-19-105(c)(3)(B)(i); Ark. Code Ann. § 25-19-105(c)(1); Ark. Code Ann. § 25-19-105(b)(12).

Case: Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, cited for the evaluation-record definition.

Source

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

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).