Was a Springdale police suspension record properly redacted before release under the Arkansas FOIA, when the suspended officer wanted broader redactions removed?

Plain-English summary

Springdale's city attorney asked the AG whether the police department's plan to release employee-evaluation records of an officer's five-day suspension, with redactions the custodian had already made, was consistent with the Arkansas FOIA. The suspended officer wanted additional material redacted, arguing that the extra material had not actually been the basis for the suspension and that there was no compelling public interest in it. The AG sided with the custodian.

Two custodian decisions were under review. First, the custodian had decided that the records as redacted "formed the basis" for the suspension. The AG noted that whether records form the basis of a suspension is a question of fact, one the custodian is uniquely positioned to resolve. Nothing on the face of the records made the custodian's call obviously wrong, so the AG could not say it was inconsistent with the FOIA. Second, the custodian had implicitly decided that there was a compelling public interest in disclosure. The AG agreed: when the suspended employee is a law-enforcement officer and the conduct violated rules aimed at preserving public trust, that combination is "sufficient to satisfy the 'compelling public interest' requirement," echoing prior AG opinions and the leading FOIA commentary.

Currency note

This opinion was issued in 2017. 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.

Historical context: the four-prong employee-evaluation test

Under Ark. Code Ann. § 25-19-105(c)(1) as it stood in 2017, employee-evaluation or job-performance records (records created by or at the behest of the employer to evaluate the employee that detail the employee's performance or lack of performance, per Thomas v. Hall, 2012 Ark. 66) were withholdable unless all four of these prongs were satisfied:

1. Level of discipline. The employee was suspended or terminated.
2. Finality. The suspension or termination proceeding had reached final administrative resolution.
3. Basis. The records in question formed a basis for the suspension or termination decision.
4. Compelling public interest. A compelling public interest existed in disclosure.

The officer had been suspended and the time to appeal had passed. The basis prong was disputed: the officer said additional material in the records had not formed the basis for the suspension. The AG could not resolve that factual disagreement and deferred to the custodian's determination. She separately assessed whether there was a compelling public interest in disclosure.

Common questions

Why does it matter that the employee was a law-enforcement officer?

The AG quoted earlier opinions and FOIA commentators for the view that "the public has a great interest in the [job] performance of police officers." She considered the officer's status together with the records' account of violations of rules aimed at protecting public trust.

What about the absence of a public controversy?

The AG cited Op. Att'y Gen. 2014-122 for rejecting the idea that the mere absence of public controversy requires withholding a record. Here she focused more on the officer's status and the apparent violation of rules designed to protect public trust.

What kinds of misconduct trigger compelling public interest?

Op. Att'y Gen. 2010-055 and 97-400, both cited here, establish that violations of rules aimed at preserving public trust, public safety, or the safety of fellow employees give rise to a compelling public interest in disclosure. The Watkins commentary phrases the rule the same way: "[t]he public's interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by employees."

Did this opinion decide whether more personal information required redaction?

No. The officer challenged whether additional material had been the basis for the suspension and whether the public had a compelling interest in it. The AG addressed those questions. She did not discuss a companion opinion or list categories of personal information to redact here.

What couldn't the AG do here?

The AG could not resolve the disputed factual question of whether the additional material formed a basis for the suspension. She said the custodian was uniquely positioned to decide it and that her office was not a finder of fact or an enforcer of FOIA compliance.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public record")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception, "clearly unwarranted invasion of personal privacy")
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records, four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject can seek AG opinion)
• Ark. Code Ann. § 25-19-107 (FOIA enforcement)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)
• Op. Att'y Gen. 2014-129 (police-officer rank analysis)
• Op. Att'y Gen. 2014-122 (absence of public controversy not dispositive)
• Op. Att'y Gen. 2010-055 (suspensions for violation of public-trust rules)
• Op. Att'y Gen. 97-400 (compelling public interest standard)
• Op. Att'y Gen. 2008-065 (four-prong test recap)
• Op. Att'y Gen. 2005-236 (custodian uniquely positioned to determine "basis")

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2017-063

May 19, 2017

The Honorable Ernest B. Cate
Springdale City Attorney
201 Spring Street
Springdale, AR 72764

Dear Mr. Cate:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 someone has requested "records pertaining to a disciplinary action taken against an employee of the [Springdale] Police Department." You report that the disciplinary action resulted in the employee's five-day suspension and that the time to appeal has passed. You further state that the records requested are employee-evaluation records that "formed the basis for the decision to suspend the officer" and that "[t]he Department intends to release the records as redacted .... " The employee has questioned whether certain additional redactions should be made. The employee states that the additional redactions should be made because this language or material was not the basis for the suspension and there is no compelling public interest in it.

You have submitted the records for my review and opinion on whether the custodian's decision to decline to make the additional redactions is consistent with theFOIA.

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

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page2

RESPONSE

The custodian has decided that the records as redacted by the custodian formed the basis for the employee's suspension. It is not immediately apparent from the face of the records that this decision is mistaken. I therefore cannot say that the custodian's decision in this regard is inconsistent with the FOIA. As for the custodian's apparent decision that there is a compelling public interest in the records' disclosure, it is my opinion based upon the content of the records as redacted by the custodian and the particular circumstances surrounding their creation that this decision is consistent with the FOIA.

I will set out the applicable definitions and standards and then apply them to the records you attached.

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 the City of Springdale, 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. 1

1
Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015).

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page 3

It appears that all of the attached documents were created or collected as part of an internal investigation. Accordingly, in my opinion, they reflect the performance or lack of performance of an official function. Therefore, they are "public records" under the above 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. 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 test for whether these two types of documents may be released differs 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.

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. 97-368; John J. Watkins, Richard J. Peltz- Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 3 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." 4 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."

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page4

Based on the information before me, the relevant exemption is the one for employee-evaluation records. 5 The FOIA does not define "employee evaluation or job performance records." But the Arkansas Supreme Court has adopted this office's view that this 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. 6 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 7

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);
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). 8

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the 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

5
I use the term "employee-evaluation records" to encompass employee evaluation and job performance records, as the test for the release of such records is the same; and the FOIA uses the term "evaluation records" to refer to both evaluations and job performance records. See id. at § 25-19-105(c). 6 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. 7 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
8
Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065.

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page 5

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, because that concern, at least theoretically, always exists. 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. 9

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. 10 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. I I

III. Application.

As explained above, one of the conditions for the release of employee-evaluation records is that the records formed a basis for the decision to suspend or terminate the employee. In the case at hand, the custodian has decided that the records as redacted by the custodian formed the basis for the employee's suspension. It is not immediately apparent from the face of the records that this decision is mistaken. I therefore cannot say that the custodian's decision in this regard is inconsistent with the FOIA. The question whether the records formed a basis for a suspension is one of fact that the custodian is uniquely positioned to decide. I 2 I am not a finder of fact and I lack information to meaningfully evaluate the 9 Watkins, et al., note 2 supra, at 238-39 (footnotes omitted).
10
Id. at 237 (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."). 11 Cf Op. Att'y Gen. 96-168; Watkins, et al. at 223.
12
See Op. Att'y Gen. 2005-236 and opinions cited therein (noting that the question of whether records form a basis for a final suspension or termination is one of fact that "can be readily determined by the custodian of the records.").

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page 6

contention that additional portions of the records at issue did not form a basis for the employee's suspension. I cannot determine disputed questions of fact or apply principles of law to a set of facts that may be in dispute. Nor am I authorized to enforce compliance with the FOIA. 13

The custodian has also determined that there is a compelling public interest in disclosure of the records as redacted by the custodian. This is apparent from the custodian's determination that the redacted records are the subject employee's employee-evaluation records that must be released to the requester.

As noted above, various factors bear on the "compelling public interest" analysis, including the employee's rank in the hierarchy and the existence of a public controversy. But as this office has previously observed, the very fact that the employee at issue is a law-enforcement officer creates a strong public interest in his official conduct:

The opinions from this office, and the views of the leading commentators on the FOIA, indicate that rank within the hierarchy "may be relevant" to determining whether a compelling public interest exists. But, as the commentators note, this conclusion is tempered in the context of law enforcement: "[T]he public has a great interest in the [job] performance of police officers .... " 14

Additionally, the absence of public controversy in some circumstances establishes little with respect to whether a compelling public interest in disclosure exists. 15 Far more pertinent to the analysis in this case, in my opinion, is the fact that the suspension in this instance appears to have resulted from the violation of policies and rules designed to avoid any undermining of the public trust. This office has 13 The FOIA has no provision establishing a state compliance office and does not authorize the Attorney General to enforce FOIA requests. 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. See Ark. Code Ann. § 25-19-107. 14 Op. Att'y Gen. 2014-129 (quoting John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 217 (footnotes omitted) (Arkansas Law Press, 5th ed., 2009). 15 See Op. Att' y Gen. 2014-122 (rejecting the notion that the mere absence of public controversy requires that a record be withheld, given that the public may simply be unaware of the underlying episode giving rise to the controversy).

The Honorable Ernest B. Cate
Opinion No. 2017-063
Page 7

consistently opined that the violation of such a rule in itself gives rise to a compelling public interest in disclosure of employee-evaluation records. 16 As commentators on the FOIA have observed, "[t]he public's interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by employees." 17 The records enclosed with your request for my opinion reflect that the suspension in this case occurred as a result of violation of rules aimed at this type of conduct or behavior.

It is therefore my opinion, based upon the content of the records as redacted by the custodian and the particular circumstances surrounding their creation, that the "compelling public interest" standard is met with respect to the redacted records. Accordingly, the custodian's decision in this regard is consistent with the FOIA, in my opm1on.

Sincerely,

< LESLIE~
Attorney General

16
See Ops. Att'y Gen. 2010-055 (deeming a compelling public interest to exist when records "reflect that the suspensions occurred as a result of the violation of rules aimed at conduct which manifestly could undermine the public trust and/or compromise public safety and the safety of other Department employees") and 97-400 ("[I]t is my opinion that the nature of the problem that led to the suspension compels disclosure in this instance where the activities detailed in the records violated administrative rules and policies aimed at conduct which could undermine the public trust and/or compromise public safety."). 17 Watkins, et al. at 234 (footnotes omitted).