Could the City of Little Rock release names of police recruits who got $5,000 incentive payments and quit, plus their CLEST F-4 forms and the incentive-pay policy, without violating Arkansas FOIA?

Plain-English summary

Someone (the opinion does not name the requester) filed a FOIA request with the City of Little Rock for three categories of records about Little Rock Police Department recruits who received $5,000 "incentive" payments and then left City employment after 2014:

1. A list of those officers' names.
2. The F-4 forms LRPD submitted to the Arkansas Commission on Law Enforcement Standards and Training (CLEST), which document a sworn officer's change in status with a department.
3. The City's policies or procedures regarding the incentive pay.

City Manager Bruce Moore confirmed the records custodian had decided to release everything. Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), Moore could ask the AG for an opinion on whether that decision was consistent with FOIA. (The same statute lets requesters and record subjects also seek the AG's opinion.)

The AG had not seen the actual records, so the opinion was a framework, not a record-by-record ruling. But the AG laid out the rules:

• The threshold test has three elements: (1) the request goes to a public entity (Little Rock checked this box), (2) the documents are "public records" (yes, salaries paid by a public employer count), and (3) no exception forecloses release.

• Personnel vs. evaluation records. Arkansas FOIA divides personnel files into two camps. "Personnel records" (anything about an individual employee that is not an evaluation/job performance record) are open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12). "Employee evaluation or job performance records" have a stricter standard, and the AG limited the discussion to personnel records since the custodian had categorized the records that way.

• The Young v. Rice balancing test. Two steps: (1) Does the privacy interest exceed de minimis? If not, the thumb-on-the-scale toward disclosure wins. (2) If yes, does the public's interest in disclosure outweigh that privacy interest? Young v. Rice, 308 Ark. 593 (1992). The burden is on whoever resists disclosure (Stilley v. McBride, 332 Ark. 306 (1998)).

• Mandatory redactions. Even when a record passes the disclosure test as a whole, certain pieces of information must be removed. The AG listed eleven categories drawn from prior opinions and statutes, including: personal contact information (§ 25-19-105(b)(13)); employee personnel numbers; marital status and dependents; dates of birth; Social Security numbers; medical information; undercover officer identifiers (§ 25-19-105(b)(10)); driver's license numbers; insurance coverage; tax/withholding information; payroll deductions; and banking information.

Bottom line for each category:

• Names list. Long-standing AG opinion holds that public-employee salary and payroll information is generally open. The custodian had to verify nothing exempt slipped in.
• F-4 forms. Previously opined to be generally disclosable as initial-employment / personal-history-type records, with redactions. The custodian had to review carefully.
• Policies and procedures. Not addressed specifically, but as institutional documents (not personal records), they are typically straightforward to release.

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.

Background and statutory framework

Arkansas's Freedom of Information Act (Ark. Code Ann. § 25-19-101 et seq.) creates one of the strongest public-records regimes in the South. Public records, defined at § 25-19-103(7)(A), are:

[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.

The presumption tips toward disclosure. Exemptions are narrowly construed.

The personnel-record exemption (§ 25-19-105(b)(12)) allows withholding "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The employee-evaluation exemption (§ 25-19-105(c)(1)) is stricter: those records become public 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 split matters because most documents in a personnel file fall into one bucket or the other, with very different release tests.

The AG's reasoning

The personnel-record / evaluation-record split. The AG cited the standard list of items that typically appear in personnel files: employment applications, school transcripts, payroll documents, reclassification records, transfer records, health and life insurance forms, performance evaluations, recommendation letters, disciplinary-action records, leave-without-pay requests, training certificates, and legal documents like subpoenas. The "evaluation/job performance" records are a subset; everything else is "personnel records."

Because the custodian had classified the requested records as personnel records, the AG limited the analysis to that exemption.

The Young v. Rice balancing test. The Arkansas Supreme Court in Young v. Rice set up a two-step test for "clearly unwarranted invasion of personal privacy":

1. Does the information give rise to a more than de minimis privacy interest? If the privacy interest is trivial, the disclosure presumption wins automatically.
2. If yes, does the public's interest in disclosure outweigh that privacy interest?

The scale tips toward disclosure throughout. The party resisting disclosure carries the burden (Stilley v. McBride).

Salary information is generally open. The AG referenced a long line of prior opinions (Op. Att'y Gen. 2008-129 and others) holding that salary and payroll information of public employees is generally subject to disclosure. The same logic extends to bonuses and incentive pay (Op. Att'y Gen. 2007-070), provided (1) the information is not an exempt evaluation record and (2) disclosure is not a clearly unwarranted privacy invasion.

For the LRPD recruits, the AG suggested that incentive-pay information akin to "salaries and other salary-related records" would likely not be a clearly unwarranted invasion of privacy.

F-4 forms. Op. Att'y Gen. 2008-053 had previously addressed CLEST initial-employment reports and personal history statements, holding them generally disclosable with discrete items redacted. The AG carried that framework forward here. The custodian needed to walk each form line by line and pull anything in the eleven listed redaction categories.

The mandatory redaction list. The AG enumerated specific items that must be redacted regardless of whether the document as a whole gets released:

• Personal contact information (personal phones, personal e-mail, home addresses): § 25-19-105(b)(13)
• Employee personnel numbers (Ops. Att'y Gen. 2014-094, 2007-070)
• Marital status and dependents (Op. Att'y Gen. 2001-080)
• Dates of birth (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)
• Information identifying undercover law enforcement officers: § 25-19-105(b)(10)
• Driver's license numbers (Op. Att'y Gen. 2007-025)
• Insurance coverage (Op. Att'y Gen. 2004-167)
• Tax information / withholding (Ops. Att'y Gen. 2005-194, 2003-385)
• Payroll deductions (Op. Att'y Gen. 98-126)
• Banking information (Op. Att'y Gen. 2005-194)

Why the AG could not give a definitive answer. The custodian had not provided the records to the AG's office. Under § 25-19-105(c)(3)(B)(i), a definitive disclosure ruling requires examining the actual documents. The opinion is the framework; the custodian had to apply it.

Common questions

What was the F-4 form?
A CLEST form documenting a change in status of a sworn law-enforcement officer with their department (hire, separation, promotion, etc.). The opinion treats the F-4 as the type of personal-history record discussed in earlier AG opinions.

Why does the subject's objection not matter?
Because the test is objective. The AG cited multiple prior opinions: "[T]he 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." A police officer who does not want his name on a list of "took incentive money and left" cannot block disclosure on personal preference alone.

What if the recruit was working undercover at any point?
Section 25-19-105(b)(10) blanket-protects information identifying law enforcement officers currently working undercover. The custodian had to verify none of the listed recruits were currently undercover before releasing names.

Could this opinion have come out differently for the F-4 forms?
Possibly, depending on what was on the form. The AG flagged that he had not seen them. If an F-4 contained, say, detailed disciplinary information or evaluative findings, those portions could shift into the more-restrictive employee-evaluation analysis under § 25-19-105(c)(1).

Is incentive pay treated like a bonus or like a salary?
The AG treated it as akin to salary-related compensation. Op. Att'y Gen. 2007-070 had previously held that bonus or incentive pay information may be disclosable absent unique privacy concerns. So even though Moore's letter pushed back on calling the $5,000 a "bonus" (the City called it "incentive pay for recruits who successfully complete recruit training"), the analysis was the same.

Source

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

Original opinion text

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 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.

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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. 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."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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. 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.

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

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. § 25-19-105(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 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. 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. The custodian would need to carefully review such forms to determine what, if any, exempt information should be redacted.

Sincerely,

LESLIE RUTLEDGE
Attorney General