Could Little Rock release records about police recruits who received incentive pay and later left city employment?

Plain-English summary

Little Rock received a FOIA request for a list of police recruits who received $5,000 incentive payments and left city employment after 2014, their F-4 status forms submitted to the Arkansas Commission on Law Enforcement Standards and Training, and city policies concerning the payments. The city's records custodian intended to release the records. City Manager Bruce Moore asked the Attorney General whether that decision complied with Arkansas FOIA.

The AG could not decide whether the specific records should be released, withheld or redacted because she had not received copies. She said salary and payroll information for public employees is generally open, but the custodian still had to check the names list for exemptions. CLEST forms reporting a police officer's change in status also required a careful review. Earlier AG opinions had found similar CLEST employment reports and personal history statements generally disclosable after removal of exempt details. The AG did not separately decide how to handle the requested policy documents.

Currency note

This opinion dates to 2017 and discusses the law and records as described to the AG then. A present-day custodian should check current Arkansas FOIA provisions and the actual documents before deciding what to disclose.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed the custodian, requester or subject of personnel or evaluation records to ask the AG whether a release decision complied with FOIA. The AG explained that a requested document must be disclosed if it is held by an entity subject to FOIA, is a public record, and no exception permits withholding. She found the first two elements appeared satisfied because Little Rock held the requested records as a public entity.

The custodian had classified the requested records as personnel records. The AG therefore discussed the personnel-record exception, which allows withholding to the extent disclosure would be a clearly unwarranted invasion of personal privacy. She said classification and disclosure ultimately depend on the actual records.

The AG's reasoning

Privacy balance. Under Young v. Rice, the custodian first asks whether information carries more than a minimal privacy interest. If it does, the custodian weighs that interest against the public interest in disclosure. The scale favors disclosure; the person resisting it bears the burden. The record subject's personal objection alone does not settle the objective test.

Names and pay. Prior AG opinions generally treated public-employee salary and payroll records as open. A footnote says incentive-pay information might also be disclosable if it is not an exempt evaluation record and disclosure is not a clearly unwarranted privacy invasion. The AG thought release seemed likely if these incentive-pay records resembled salary records, but said she had not seen them. The custodian needed to inspect the requested list for exempt information.

F-4 forms. The AG understood these CLEST forms to report changes in officers' status, but did not know everything they contained. She pointed to prior guidance on similar CLEST reports and instructed the custodian to review each form for exempt information.

Redactions. The opinion lists items that may need removal even when a document is otherwise releasable, including personal contact information, personnel numbers, dates of birth, Social Security numbers, medical information, certain undercover officer identifiers, driver's license numbers, insurance, tax and payroll-deduction details, and banking information.

Common questions

Did the AG authorize release of these specific records?

No. She expressly said she could not give a definitive answer without examining them. She gave the custodian the legal framework for deciding what to release, withhold or redact.

Does an employee's objection automatically block release?

No. The opinion says the privacy test is objective. The custodian must apply the FOIA test to the information in the record.

Are police incentive payments public?

The AG said salary and payroll information is generally open and that incentive-pay records akin to salary records seemed likely to be disclosable. She conditioned that view on the record not being an exempt evaluation record and on the privacy balance. She did not see the records at issue.

What should a custodian do with an F-4 form?

Review its contents and identify any exempt information. The AG said prior opinions treated similar CLEST employment reports as generally disclosable with discrete redactions, but she could not decide this case's forms without seeing them.

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTO RN EY G EN ERAL
LESLI E RUTLE DGE

Opinion No. 2017-099

September 20, 2017

Mr. Bruce T. Moore
City Manager
City Hall, Room 203
500 West Markham Street
Little Rock, AR 72201-1427

Dear Mr. Moore:

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 someone has requested a list of the "Little Rock Police officers that have been given a $5,000.00 signing bonus and left employment with the City since 2014, copies of the F4 forms regarding these officers submitted by LRPD to the Arkansas Commission on Law Enforcement Standards and Training ("CLEST"), and polic[ies] or procedures regarding the signing bonus. " You state that the payments in question are not bonuses, but are "incentive pay for recruits who successfully complete recruit training for the Little Rock Police Department." The records custodian has determined that the requested records are subject to disclosure. You ask whether the decision to disclose the above-referenced personnel records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I must note initially that you have not provided me with copies of the records that have been requested. Without having reviewed these records, I cannot

323 CENTER ST REET. SU IT E 200 · LI TTLE ROC K. ARKAN SAS 7220 1 TELE l'H O N E (50 1) 682-2007 · FAX (50 1) 682-8084 ARKAN SASAG. GOV

Mr. Bruce T. Moore
City Manager
Opinion No. 2017-099
Page 2

opine definitively concerning whether they should be disclosed, withheld as exempt, or disclosed but with exempt information redacted. Nevertheless, I will discuss the principles of law that are applicable to the types of records that have been requested.

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 Little Rock, which is a public entity. As for the second element, the FOIA defines a "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

Therefore, in my opinion, these documents are public records 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

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

Mr. Bruce T. Moore
City Manager
Opinion No. 2017-099
Page 3

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.

Your correspondence indicates that the custodian has determined that records at issue are personnel records. I will therefore limit my discussion to the test for disclosure relating to personnel records.

The FOIA does not define the term "personnel records." But this office has consistently opined that "personnel records" are all records other than employee evaluation and job 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

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. § 25-19-1 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. § 25-19-105( c)( 1): "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 ifthere is a compelling public interest in their disclosure." 5 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Mr. Bruce T. Moore
City Manager
Opinion No. 2017-099
Page4

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 private. The balancing takes place with the scale tipped in favor of disclosure. 8

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 minimis privacy interest. 9 If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. 10

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. 11 The fact that 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 objective. 12 Whether any

6
Ark. Code Ann.§ 25-19-105(b)(12).
7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins, et al., at 208.
9
Young, 308 Ark at 598, 826 S.W.2d at 255.
10
Id., 826 S.W.2d at 255.
11
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

Mr. Bruce T. Moore
City Manager
Opinion No. 2017-099
Page 5

particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question offact. 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:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann.§ 25-19-105(b)(13));

• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 2 5-19-10 5(b )( 10));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194).

III. Application.

I must reiterate here that, because I have not been provided copies of the records the City of Little Rock plans to release, I cannot definitively opine whether the custodian's decisions are consistent with the FOIA. As I understand it, however, the City intends to release a list of the names of police department recruits who received the "incentive pay" since 2014 but who have since left the City's employment. It has long been the opinion of this office that salary or payroll

13
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Mr. Bruce T. Moore
City Manager
Opinion No. 2017-099
Page 6

information of public employees is generally open to public inspection, so long as exempt information like the items listed above are redacted or not included. 14 The custodian will need to review the list of names to ensure that no exempt information is disclosed.

With respect to the F4 forms the City submits to CLEST, it is my understanding that this form reflects a police officer's change in status with a police department. I have not been made aware of all of the information contained on such forms. This office has previously opined that CLEST initial employment reports and personal history statements are generally disclosable with certain discrete items of information redacted. 15 The custodian would need to carefully review such forms to determine what, if any, exempt information should be redacted.

Sincerely,

~~- ". //?...£7
LESLIE RUTLEDGE
Attorney General

14
See Op. Att'y Gen. 2008-129 (and opinions cited therein). Please note that this office has opined with respect to bonuses or incentive pay that such information may be disclosable under the FOIA, so long as (1) the information does not constitute an employee evaluation or job performance record that is exempt, and (2) disclosure of the information is not a clearly unwarranted invasion of privacy. See Op. Att'y Gen. 2007-070. Again, I have not seen the incentive-pay records that the custodian intends to disclose. But to the extent the incentive-pay records are akin to the "salaries and other salary-related records" for the recruits in question, it seems likely that disclosure of that information would not be a clearly unwarranted invasion of privacy. 15 See Op. Att'y Gen. 2008-053 (and opinions cited therein).