Could Green Forest Police Department deny a FOIA request for ex-officers' records because they weren't terminated?

Plain-English summary

Misty Rupert requested Green Forest Police Department records about three former employees, including promotions, demotions, discipline and previous employers. The records custodian denied access, saying the officers had not been suspended or terminated. Rupert asked the Arkansas Attorney General whether that decision complied with FOIA.

The AG did not approve or disapprove the denial. She had not seen any responsive records, so she could not decide whether a particular document should be released or redacted. She explained that the custodian had to classify each responsive document and apply the appropriate disclosure test. The request might cover personnel records, employee evaluation records, or both. The opinion does not say which category any particular Green Forest document occupied.

For a record that qualifies as an employee evaluation or job performance record, lack of suspension or termination defeats the first condition for public release. A personnel record has a different test: it is open unless disclosure would be a clearly unwarranted invasion of personal privacy. The AG left application of those standards to the custodian in the first instance.

Currency note

This opinion was issued in 2017. Check current Arkansas FOIA law and the actual records before relying on its disclosure framework for a new request.

Background and statutory framework

The AG said records held by a public entity must be disclosed if they qualify as public records and no exception applies. Employee-related records may fall under two different FOIA exceptions. The document's contents and purpose control its classification; the requester's label alone does not.

Personnel records. The AG described these as employee-related records other than evaluation or job performance records. Under Ark. Code Ann. § 25-19-105(b)(12), they are open except to the extent release would be a clearly unwarranted invasion of personal privacy. Young v. Rice calls for weighing the public interest in disclosure against an individual's privacy interest. The custodian must also remove discrete exempt details from otherwise releasable records.

Evaluation or job performance records. The AG used the Thomas v. Hall definition: records made by or at an employer's request to evaluate an employee and detailing performance or lack of performance on the job. Under Ark. Code Ann. § 25-19-105(c)(1), public release requires suspension or termination, final administrative resolution, use of the record as a basis for that decision, and a compelling public interest. If the worker was neither suspended nor terminated, qualifying evaluation records cannot be released under that test.

What the AG decided

The AG said she could not determine the releasability of any requested document or any necessary redaction without seeing the records. Her conclusion tells the custodian to classify the documents and apply the relevant test or tests. It does not find that Green Forest misclassified a document, used the wrong test, or made a correct or incorrect final disclosure decision.

The fact that Rupert requested records about former employees did not itself answer the classification question. The AG's explanation of the evaluation exception expressly refers to employees and former employees.

Common questions

Did the AG say Green Forest's denial was wrong?

No. She said the records had not been provided for review and she could not definitively opine on the custodian's decision. She instructed the custodian to classify the responsive documents and apply the appropriate disclosure tests.

Does no suspension or termination make every employee-related record confidential?

The opinion applies that condition to records that qualify as employee evaluation or job performance records. Personnel records use a privacy-balancing test. The AG did not classify the particular documents Rupert requested.

Were the requested promotion or disciplinary records public?

The AG did not decide. Without the records, she could not say whether any specific document should be disclosed, withheld or released with redactions.

What should the custodian do next?

Identify responsive documents, decide which FOIA category each fits, apply the corresponding release test, and examine any releasable document for exempt information that needs redaction. Those are the steps the opinion places on the custodian in the first instance.

Source

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

Original opinion text

STATE O F ARKAN SAS
ATTO RN EY G EN ERAL
LES LI E RUTLED GE

Opinion No. 2017-113

October 19, 2017

Ms. Misty Rupert
325 CR426
Berryville, AR 72616

Dear Ms. Rupert:

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.

The correspondence you have submitted indicates that you have recently made FOIA requests to the Green Forest Police Department for copies of employee- related records pertaining to several individuals. Specifically, you have requested "copies of . . . personnel records, including but not limited to promotions, demotions, disciplinary actions and previous employer information" for three former employees of the Department. The custodian of records for the Police Department has determined that "as all three officers you have requested information on were not [suspended or] terminated ... their records are exempt from release under FOIA." You ask for an opinion as to whether the custodian's decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that would be responsive to your FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. Accordingly, I can only set out the legal standards the custodian must

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. ARKAN SAS 7220 1 TELEP H ONE (50 1) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

Ms. Misty Rupert
Opinion No. 2017-113
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apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 Green Forest Police Department, 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

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 2 Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

1
Ark. Code Ann.§ 25-19-103(7)(A)(Supp. 2017).
2
See Op. Att'y Gen. 2010-044.

Ms. Misty Rupert
Opinion No. 2017-113
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 3 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" under Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2015) 4 and "employee evaluation or job performance records" under Ark Code Ann. § 25-19-105(c)(l) (Supp. 2015). 5 The tests for whether these two types of documents may be released differ 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.
a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. 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. 6 Whether a particular

3
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). 4 This subsection states: "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." 5 This subsection states: "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." 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al, at 202.

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Opinion No. 2017-113
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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." 7

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 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. 9

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. 10 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. 11 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. 12 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. 13

7
Ark. Code Ann.§ 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., note 3 supra, at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id.,826 S.W.2d at255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., note 3 supra, at 207.

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Opinion No. 2017-113
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Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14

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 )(1 O));
• 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).
  b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has 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

14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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Opinion No. 2017-113
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the job. 15 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 16

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). 17

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, 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

15
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. 16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
17
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

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Opinion No. 2017-113
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trust should be sufficient to satisfy the "compelling public interest" requirement. 18

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, 19 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.

Such records are releasable only if the above conditions have been met, including as a threshold matter the employee's suspension or termination. If an employee or former employee is neither suspended nor terminated, therefore, any records that constitute employee evaluation or job performance records cannot be released. As I and my predecessors have consistently opined, however, this exemption only applies to documents that were created by or at the behest of the employer for the purpose of evaluating the employee or former employee.

The primary purpose of this exception is to preserve the confidentiality of the formal jch-evaluation process in order to promote honest exchanges in the employee/employer relationship. 20

III. Application.
I have not reviewed the actual records at issue, and therefore cannot definitively opine on whether the custodian's decision is consistent with the FOIA. But I can state based on the correspondence sent to my office that the custodian, in determining whether you are entitled to the personnel or employee-evaluation records of the former employees at issue, must properly classify the documents and apply the appropriate disclosure test(s).

Sincerely,
...-..;:::~:.=.~~'>- ~. ~/-i2#-j?
LESLIE RUTLEDGE
Attorney General

18
Watkins, et al., note 3 supra, at 238-39 (footnotes omitted).
19
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.").

°Cf Op. Att'y Gen. 96-168; Watkins, et al, at 223.
2