Did the Little Rock Police Training Academy properly handle the FOIA release of CLEST records related to Officer Schiefelbein?

Plain-English summary

Officer Brandon Schiefelbein, on the personnel-records-subject track of § 25-19-105(c)(3)(B)(i), asked the AG to review the City of Little Rock's decision regarding a FOIA request for "copies of public records regarding [his] application of employment ... and copies of any forms and documents sent to the Arkansas Commission on Law Enforcement Standards & Training (CLEST)" about him. The custodian had marked some records for release with redactions and others for withholding.

The AG concluded the custodian's classification approach was correct: the records were properly treated as personnel records, not employee-evaluation records. Personnel records run through the Young v. Rice two-step balancing test (de minimis privacy interest screen, then balance against public interest with thumb on the scale toward disclosure). Most of the custodian's specific release/withhold and redaction decisions were consistent with the FOIA, with two exceptions identified in the opinion's full text.

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.

Why CLEST records sit in the personnel-records track

The Arkansas Commission on Law Enforcement Standards & Training (CLEST) certifies law enforcement officers and tracks their training, certification status, and disciplinary history. Forms and documents sent to CLEST about an individual officer (training certifications, disciplinary referrals, certification applications) typically fall within "personnel records" because they pertain to that officer's employment record. They are not "employee evaluation or job performance records" under the Thomas v. Hall test unless they were created by or at the behest of the employer specifically to evaluate the officer's performance.

The AG agreed with the custodian's classification and confirmed the records run through the personnel-records test under § 25-19-105(b)(12), not the four-part employee-evaluation test under § 25-19-105(c)(1).

How the Young v. Rice balancing test applies to CLEST records

Young v. Rice's two-step framework:

Step 1, de minimis screen. If the privacy interest is merely de minimis, the thumb-on-the-scale toward disclosure controls and the record is released. Routine training certifications and similar non-sensitive documents typically clear this step quickly.

Step 2, balance against public interest. When the privacy interest is more than de minimis, the custodian weighs it against the public interest in disclosure, with the burden on the person resisting disclosure (Stilley v. McBride). The subject's own preference for privacy is irrelevant; the test is objective.

Within released personnel records, certain discrete pieces of information must be redacted regardless of the document's overall releasability: home address (§ 25-19-105(b)(13)), social security number, date of birth, marital status, dependent information, medical information, driver's license number, banking information, payroll deductions, undercover-officer identification, employee personnel number.

Common questions

What is CLEST and why do its records matter?
The Arkansas Commission on Law Enforcement Standards & Training is the state agency that certifies law enforcement officers in Arkansas. Officers must meet CLEST training and certification standards to serve. CLEST holds records on every certified officer in the state, including training, certifications, disciplinary referrals, and decertification proceedings. CLEST records get FOIA requests both from journalists investigating officer misconduct and from officers themselves seeking copies of their own files.

Why did Officer Schiefelbein invoke § 25-19-105(c)(3)(B)(i)? The statute lets the subject of personnel records request an AG opinion on whether the custodian's release decision is consistent with the FOIA. Officers facing release of records about themselves often use this mechanism to ensure proper redactions and to flag overbroad releases.

Could CLEST records be employee-evaluation records? Some records sent to CLEST might fall on the evaluation side, particularly internal-affairs investigations or disciplinary findings. The AG concluded these specific records were personnel-track, not evaluation-track. That classification distinction matters because the four-part evaluation test is generally tougher than the Young v. Rice balancing test.

What does it mean that two records had to be adjusted? The opinion identifies two specific records where the AG disagreed with the custodian's specific call. Without naming the documents in this summary (the full text describes the exceptions), the takeaway is that even when the overall framework is right, individual document-level decisions can need adjustment.

Are CLEST records held by Little Rock or by CLEST itself? Both. The Little Rock Police Training Academy held copies of forms it sent to CLEST. CLEST holds its own records. A FOIA requester can target either custodian; the records may differ slightly because each custodian holds what was sent to or by that office.

Background and statutory framework

The FOIA opinion mechanism at § 25-19-105(c)(3)(B)(i) is unusual in U.S. open-records law. It lets the custodian, requester, or subject of personnel or employee-evaluation records seek a non-binding AG opinion on whether the release decision is consistent with the FOIA. The AG's review functions as a sanity check; the custodian retains decisional authority.

Personnel records under § 25-19-105(b)(12) are released unless disclosure would be a "clearly unwarranted invasion of personal privacy" under Young v. Rice's two-step test. Employee-evaluation or job-performance records under § 25-19-105(c)(1) are released only if all four conditions are met: suspension or termination, finality, basis, and compelling public interest (Thomas v. Hall).

CLEST is established under Title 12 of the Arkansas Code and serves as Arkansas's state-level law enforcement officer certification body.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation records definition)

Source

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

Original opinion text

Opinion No. 2017-125
November 30, 2017
Officer Brandon Schiefelbein
c/o Captain Marcus Paxton
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
Little Rock Police Training Academy
10901 Arch Street
Little Rock, AR 72206
Dear Officer Schiefelbein:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made pursuant to Ark. Code Ann. § 25-19- l 05( 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 "copies of public records regarding [your] application of employment . . . and copies of any forms and documents sent to the Arkansas Commission on Law Enforcement Standards
& Training ("CLEST")" concerning you. You have attached several documents that the custodian of records has either determined to be responsive to the request, with certain redactions, or are exempt from disclosure. You ask whether the attached records are subject to disclosure. RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the custodian has properly classified the records at issue as personnel records. Furthermore, the custodian's decision to either release the records with certain redactions or withhold certain records is mostly consistent with the FOIA, with two exceptions 323 CENTrn STREET. Sum: 200 ' LITTLE ROCK. ARK/\NS/\S 7220 I TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Officer Brandon Schiefelbein c/o Capt. Paxton, Little Rock Police Training Academy Opinion No. 2017-125 Page 2 listed below. I will set out all the 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 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 "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 In my opinion, these documents, kept and maintained by the City of Little Rock, 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 information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; Officer Brandon Schiefelbein c/o Capt. Paxton, Little Rock Police Training Academy Opinion No. 2017-125 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. It is my understanding that the custodian has determined that the records submitted with your request for my opinion are personnel records, not employee-evaluation records. I believe the custodian's determination in this regard is correct. 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 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 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. Officer Brandon Schiefelbein c/o Capt. Paxton, Little Rock Police Training Academy Opinion No. 2017-125 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 Finally, whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.13 6 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015). 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. 13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Officer Brandon Schiefelbein c/o Capt. Paxton, Little Rock Police Training Academy Opinion No. 2017-125 Page 5 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).
  III. Application.
  Having reviewed the records at issue, it is my opinion that the custodian's decision to release them as redacted 14 is mostly consistent with the FOIA. The records plainly meet the definition of "public records." Furthermore, the records all meet the definition of "personnel records." Thus, the custodian has correctly determined that they are subject to disclosure unless doing so would constitute a clearly unwarranted invasion of personal privacy. It is my opinion that with two 14 The records I reviewed were marked through in such a way, in my assessment, as to indicate what information the custodian plans to redact and where those redactions will be made, but that still enabled me to see the information to aid in my review. Clearly, the custodian will have to make the redactions prior to disclosure in the proper manner such that the exempt information cannot be viewed or discovered in any way. Officer Brandon Schiefelbein c/o Capt. Paxton, Little Rock Police Training Academy Opinion No. 2017-125 Page 6 exceptions, the custodian has properly redacted the records under this test. In my opinion, one redacted record must be entirely withheld and another record must be further redacted. Specifically, in my opinion, the custodian must:
• Withhold in its entirety the photocopy of your driver's license.15
• Redact your parents' names from your birth certificate.16 In conclusion, the custodian has classified the attached documents as personnel records and has determined that certain of the records must be disclosed with redactions and that other records are exempt from disclosure. In my opinion, in light of the foregoing analysis, these decisions are consistent with the FOIA, with the exception of the two corrections I have listed above. And, as noted, it is the custodian's duty to make all redactions on an otherwise disclosable record permanently enough as to absolutely prevent someone from being able to discover the exempt information. Sincerely,
  ~~_;~- ,,. //~.,,
  LESLIE RUTLEDGE
  Attorney General
  15 Op. Att'y Gen. 2005-194. See also Ops. Att'y Gen. 2015-057, 2013-090, 2012-063, 2008-138, 2008-053, and 2001-331. 16 See Ops. Att'y Gen. 2011-081, 2008-053, 2007-070, 98-152, and 97-177.