Can a Little Rock firefighter's union representative get records from a pending internal investigation under Arkansas FOIA?

Plain-English summary

Little Rock Firefighter Anthony Natali was the subject of an internal investigation. He and Richard Morehead, in his capacity as President of Little Rock Fire Fighters Local 34, made a FOIA request for "all emails, files, correspondence, and notes" concerning the investigation. Natali designated Morehead as his representative for the request. The City's records custodian denied the request entirely, citing two reasons: the investigation was still ongoing, and the custodian could not yet say whether the documents would form the basis for suspension or termination.

The AG said the blanket denial was inconsistent with FOIA. The custodian had missed the most important rule for this kind of request: under Ark. Code Ann. § 25-19-105(c)(2), "any personnel or evaluation records exempt from disclosure ... shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative." That rule applies regardless of whether an investigation is ongoing. It applies regardless of whether the records will eventually form the basis for suspension or termination.

Translation: an employee always gets their own personnel and evaluation records on request. A designated representative (here, Morehead acting for Natali) stands in the employee's shoes. The investigation-status standards that limit disclosure to ordinary citizens don't limit disclosure to the employee or to the employee's representative.

But the AG also flagged a complication. The investigation was about complaints by a third party against Natali and another employee. Some of the responsive records might qualify as personnel or evaluation records of that other employee or of the third-party complainant. Those don't go to Natali or his representative just because Natali asked. They have to be assessed under the standard FOIA tests for an ordinary citizen requester. The custodian's job was to sort the documents into Natali's records (which had to go to Morehead) and others' records (which had to be analyzed under the regular tests, redactions performed, and released or withheld accordingly).

The AG also noted the concept of "mixed records," documents that qualify as more than one person's records or as a mix of evaluation and personnel records. Those need a more careful assessment.

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 FOIA distinguishes between two categories of employee-related records.

"Personnel records" under Ark. Code Ann. § 25-19-105(b)(12) are open unless disclosure would constitute a "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's Young v. Rice (1992) sets a two-step balancing test: is the privacy interest more than de minimis, and if so, is it outweighed by the public interest? Stilley v. McBride (1998) puts the burden on the person resisting disclosure.

"Employee evaluation or job performance records" under Ark. Code Ann. § 25-19-105(c)(1) are open only if four conditions are met: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution; (3) the records formed a basis for the suspension or termination; and (4) there is a compelling public interest in disclosure. Thomas v. Hall (Ark. 2012) defined evaluation records as those "(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," including investigation records about employee misconduct.

The four-condition test is high. Most evaluation records stay closed. The condition the City was relying on, that no suspension or termination had occurred, would have shielded the records from a general citizen requester.

The crucial provision the City missed is § 25-19-105(c)(2), which carves out a separate access path for the employee themselves: "[a]ny personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative." That rule reads on top of (b)(12) and (c)(1). It says: even when the records are exempt from disclosure to the public, the employee still gets them.

The "designated representative" mechanic matters for unions. A firefighter wanting union representation in an internal investigation can designate the union president as the FOIA recipient, and the rep gets the same access the employee does.

Common questions

Could Little Rock keep the investigation records from Natali because the investigation was ongoing?
No. The "ongoing investigation" status doesn't matter for an employee asking for their own records. Section 25-19-105(c)(2) gives the employee access regardless of investigation status.

Could the City deny because the records hadn't yet formed a basis for suspension?
No, for the same reason. The four-condition evaluation-records test (which includes the basis-for-suspension element) applies to disclosure to the public, not to the employee.

What about records pertaining to the other accused employee or the complainant?
Those don't automatically go to Natali. They have to be analyzed under standard FOIA tests for an ordinary citizen, with redactions of personal contact info, SSNs, etc., and the evaluation-records test applied where relevant.

What's a "mixed record"?
A record that simultaneously qualifies as more than one person's evaluation record, more than one person's personnel record, or some combination. Mixed records need careful classification before applying the disclosure test.

Could Morehead, as union president, request without Natali's designation?
He could request as an ordinary Arkansas citizen, but then he'd be subject to the standard tests (including the four-condition evaluation-records test) like anyone else. Designation by Natali was what gave him employee-level access.

Source

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

Original opinion text

Opinion No. 2017-100
September 25, 2017
Shella A. Evans, Ed.D
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Labor and Employee Relations Manager
Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Dr. Evans:

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 cover letter states that you received, as custodian of records for the City of Little Rock, a request under the FOIA for "a copy of all emails, files, correspondence, and notes concerning [an] investigation" of Firefighter Anthony Natali. You explain that this FOIA request was made by Mr. Natali as well as Richard Morehead, in his capacity as President of the Little Rock Fire Fighters' Local 34. You enclosed an email that you received from Mr. Natali, in which he identified Mr. Morehead as "my representative," and stated that Morehead "has my permission to FOI my records."

According to your cover letter, the "requests made by Richard Morehead ... and Anthony Natali do not meet the test to disclose ... because this is an open investigation," and an "administrative resolution has not been issued." You also state that the requested documents should not be disclosed because you "don't know if the[] documents will form the basis for suspension or termination."

RESPONSE

I have not seen the records at issue, and I cannot offer a definitive opinion as to whether a specific document should be disclosed in whole or in part. However, based on the correspondence forwarded for my review and summarized in your cover letter, I believe it is inconsistent with the FOIA to withhold all of the responsive records on grounds that an "investigation" is ongoing.

Mr. Morehead, acting as Mr. Natali's representative, has requested "emails, files, correspondence, and notes concerning the ... results" of an investigation about Mr. Natali. Some of these documents undoubtedly qualify as Mr. Natali's personnel records or evaluation records. While such records may be exempt under the FOIA from disclosure to a given Arkansas citizen, "[a]ny personnel or evaluation records exempt from disclosure ... shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative." This rule applies whether or not an investigation of the employee has reached a final administrative resolution, and it applies whether or not the records at issue formed the basis for the employee's suspension or termination. Because it appears that an employee's designated representative has requested records relating to an investigation of "the person about whom the records are maintained," it is likely that some of the responsive records must be disclosed to Mr. Morehead, as Mr. Natali's representative. As custodian, however, you must ensure that any personnel or evaluation records of individuals other than Mr. Natali (which may be exempt from disclosure under the applicable tests) are redacted prior to releasing records to Mr. Morehead.

CONCLUSION

I have not reviewed the actual records at issue. But I can state based on the correspondence sent to my office that the custodian should not withhold from Mr. Natali or his representative the "emails, files, correspondence, and notes concerning the investigation results," if such records are the personnel or employee-evaluation records of Mr. Natali. In determining whether Mr. Natali or his representative is entitled to the personnel or employee-evaluation records of other persons, you, as the custodian, must properly classify the documents and apply the appropriate disclosure test.

[Detailed FOIA framework discussion preserved in the original opinion. Full text available via the linked PDF.]