Could Little Rock release a former police recruit's personnel records and termination letter under the Arkansas FOIA?

Plain-English summary

Stacey Witherell asked the Arkansas Attorney General to review the City of Little Rock's decision to release records concerning former employee Brandon Gurley. The request to the City had mentioned his personnel file and an Internal Affairs investigation. The AG reviewed the attached records and found that most were personnel records. The one employee-evaluation record in the materials was a December 8, 2017 “Termination of Employment” letter that described the reasons for his termination.

The AG found that the letter met the FOIA's four conditions for releasing an employee-evaluation record. Gurley had been terminated; the letter explained the employer's reasons and formed a basis for that decision; there was no further administrative resolution process available; and, based on the incidents described in the letter, the AG found a compelling public interest in disclosure. She did not separately apply that test to an Internal Affairs investigation file.

The AG agreed that the remaining personnel records could generally be released, subject to privacy redactions. She approved the redaction of the personnel number on the termination letter but said it appeared on both pages and had to be removed from each. She also identified particular items in the personnel records for the custodian to consider redacting before release.

Currency note

This December 2017 opinion applies the FOIA to the records the AG reviewed and the facts provided by the custodian. Check current law and the actual documents when handling another request.

Background and statutory framework

The opinion distinguishes personnel records from employee-evaluation or job-performance records. Personnel records are generally disclosed unless disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records cannot be released unless a suspension or termination has reached final administrative resolution, the record formed a basis for that decision, and a compelling public interest supports release.

The letter was an evaluation record because it recounted why the police recruit was terminated. The AG's public-interest finding was tied to the incidents described in that letter, which she said involved violation of rules meant to prevent conduct that could undermine public trust. She cautioned that compelling public interest remains a factual question for the custodian in other cases.

The opinion gave a general list of personal information that may need redaction from disclosable records. For these documents it specifically identified the following additional items:

• The date of birth on page three of the Entry Police Officer application.
• The “Job Class#” on the Hire/Personnel Action Form, if it functions as security data under the statute.
• The entire photocopy of the driver's license and the Social Security number on the photocopied Social Security card.
• The “Employer ID #” on the statement concerning employment not covered by Social Security.
• The “Position No.” and “Immediate Supervisor Code” on the Status Change Form, to the extent the statutory security-data condition applies.
• The employee personnel number on both pages of the termination letter.

The AG said redactions must permanently prevent a third party from discovering the exempt information. Her list addressed the records submitted for review; it did not decide how a separate investigation file should be released.

Common questions

Was the Internal Affairs investigation the evaluation record the AG approved for release?

No. The opinion identifies only the December 8 termination letter as an employee-evaluation record in the materials reviewed. The request mentioned an Internal Affairs investigation, but the AG did not separately analyze an investigation file under the four-part test.

Why could the termination letter be released?

It recounted the reasons for a final termination and formed a basis for that decision. The AG also found a compelling public interest based on the incidents described in the letter, which concerned rules protecting public trust.

What should a custodian check before releasing these records?

Classify each document, apply the appropriate FOIA disclosure test, and remove exempt information. In this file the AG identified specific items, including the personnel number on both pages of the termination letter and several entries in the personnel forms.

Does this opinion establish that every police misconduct investigation is public?

No. Its evaluation-record analysis was directed to one termination letter, and the AG said the compelling-public-interest question depends on the facts of the particular record.

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
LE SLI E RU T LED GE

Opinion No. 2017-134

December 19, 2017

Stacey Witherell
LR Human Resources Department
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Witherell:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, made on behalf of Mr. Brandon Gurley, the subject of the records at issue, is based on Ark. Code Ann.§ 25-19-105(c)(3)(B)(i) (Supp. 2017). 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 there are a number of requests for Mr. Gurley' s "personnel file and an Internal Affairs Investigation which lead [sic] to his termination of employment." You have determined that the "first item is a personnel record and therefore releasable with personal information redacted." You have further determined that the "second item is a performance record which lead [sic] to the termination of employment and there is no administrative resolution process that he can avail himself of." You have ultimately determined that the attached records are releasable with the applicable personal information redacted. The subject of the FOIA request, a former City of Little Rock employee, is requesting an opinion with respect your determination.

RESPONSE

My statutory duty is to state whether the custodian' s decision is consistent with the FOIA. Having reviewed the records at issue, it is my opinion (1) that nearly all of the records should be classified as personnel records; (2) that one record should be

323 CENTE I ~ STRE ET . SU ITE 200 · LI TTL E RO C K. ARK AN SAS 7220 I TELE PH ONE (501) 682-200 7 · FAX (501) 682-8084 ARKANSAS AG.GOV

Stacey Witherell
Opinion - 2017-134
Page 2

classified as an employee-evaluation record; and (3) that your decision as custodian to release the personnel records and the employee-evaluation record, as redacted, is for the most part consistent with the FOIA. However, as discussed below, there is additional information you may need to redact.

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 "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 You appear to have determined that they are public records.

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

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

Stacey Witherell
Opinion - 2017-134
Page 3

be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or job performance records." 5 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.
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 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

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 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." 5 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 if there 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.

Stacey Witherell
Opinion - 2017-134
Page 4

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

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14

7
Ark. Code Ann.§ 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., 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., at 207.
14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

Stacey Witherell
Opinion -2017-134
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)(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).
  b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. The primary purpose of this exception is to preserve the confidentiality of the formal job- evaluation process in order to promote honest exchanges in the employee/employer relationship. 15 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

15
Cf Op. Att'y Gen. 96-168; Watkins, et al. at 223.

Stacey Witherell
Opinion -2017-134
Page 6

performance or lack of performance on the job. 16 And this office has opined that letters of termination constitute employee-evaluation records if they contain the reasons for the termination. 17

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). 18

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

16
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. 17 E.g. Ops. Att'y Gen. 2014-052 and 2001-276 (and opinions cited therein). If, however, the letter merely reflects the fact of termination, without elaboration, this office has opined that the letter is properly classified as a "personnel record" under section 25-19-105(b)(12). See Op. Att'y Gen. 2006-147 (and opinions cited therein). 18 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

Stacey Witherell
Opinion - 2017-134
Page 7

agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement. 19

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. 20 Of particular relevance here, I would note that "the public has a great interest in the performance of police officers and other law-enforcement officials, and in this case the 'cop on the beat' is just as important as the chief of police."21 But as with all elements of the test for disclosure of employee-evaluation records, whether there is a compelling public interest is a question of fact that must be addressed by the custodian after she considers all the relevant information.

II. Application.

I can now apply the foregoing to the attached documents, which you have determined should be disclosed, subject to certain redactions.

The first step, as noted above, is to categorize the documents. It is clear from their content that most of the documents you have submitted for my review constitute personnel records. In my opinion, the only document that does not fall into that category is the "Termination of Employment" letter, dated December 8, 2017. Because this termination letter recounts the reasons for the termination of the former employee, I believe the letter qualifies as an employee-evaluation record.

As an employee-evaluation record, it cannot be released unless all four elements of the disclosure test are met. It appears clear from the face of the record that the level-of-discipline element has been met and that the record formed a basis for the disciplinary decision. That is, the subject of the records has been terminated, and

19
Watkins, et al., at 238-39 (footnotes omitted).
20
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."). 21 Watkins, et al., at 238.

Stacey Witherell
Opinion - 2017-134
Page 8

the letter explains the employer's reasons for the termination. 22 And you have ascertained that there is no administrative resolution process the terminated employee can avail himself of, such that the finality element is also satisfied.

As for whether there is a "compelling public interest," it is my opinion that the relevant factors support your apparent determination that a compelling public interest does, in fact, favor the record's disclosure. The letter reflects that a law- enforcement recruit was terminated for violating rules aimed at preventing conduct that manifestly could undermine the public trust. 23 Based on the incidents detailed in the letter forming the basis of the subject's termination, I believe there is a compelling public interest in the letter's disclosure. Therefore, in my opinion, your decision to release the December 8, 2017 termination letter is consistent with the FOIA. Your redaction of the subject's personnel number listed in this letter is likewise consistent with the FOIA. Please note, however, that the personnel number appears on both pages of the two-page letter, and it must be redacted in each instance. 24

The remaining documents are, in my opinion, personnel records. And I believe you have correctly determined that these records are subject to disclosure, except those portions of the records that would constitute a clearly unwarranted invasion of personal privacy if disclosed. In my opinion, the following information from the personnel records must be considered for redaction, in addition to the information you have already crossed through: 25

• The terminated employee's date of birth listed below Question 1 on page three of the "Entry Police Officer (Patrol) Application Detail." 26 • The "Job Class#" entry on page one of the "Hire/Personnel Action Form," to the extent the job-class number meets the definition of "data used to

22
Although written contemporaneously with the employment decision, letters of termination have been deemed by this office to form a basis for the termination. See Ops. Att'y Gen. 2014-052; 2006-026; 2005-030, fn. 3. 23 See note 20 supra.
24
See, e.g. Ops. Att'y Gen. 2014-094, 2007-070.
25
The custodian must make all redactions permanently enough so as to absolutely prevent someone from being able to discover the exempt information. 26 See Op. Att'y Gen. 2007-064.

Stacey Witherell
Opinion - 2017-134
Page 9

cause a computer or a computer system ... to perform security functions, including, but not limited to ... personal identification numbers .... " 27 • The entire photocopy of the subject's driver's license, appearing on the second page of the documents provided. 28 • The Social-Security Number on the photocopy of the subject's Social- Security card, appearing on the second page of the documents provided.
• The "Employer ID #" appearing below the heading on the "Statement Concerning Your Employment in a Job Not Covered by Social Security. 29 • The "Position No." on page one of the "Status Change Form," to the extent the position number meets the definition of "data used to cause a computer or a computer system ... to perform security functions, including, but not limited to ... personal identification numbers .... " 30 • The "Immediate Supervisor Code" on page one of the "Status Change Form," to the extent the job-class number meets the definition of "data used to cause a computer or a computer system ... to perform security functions, 31 including, but not limited to ... personal identification numbers .... "

CONCLUSION

In my opinion, you have correctly classified the relevant documents as (1) personnel records, and (2) an employee-evaluation or job-performance record. I believe your decision to release these documents is consistent with the FOIA, subject to the information I identified above for purposes of redaction. I would emphasize that it is the custodian's duty to make all redactions on an otherwise disclosable record permanently enough that a third party would be absolutely prevented from discovering the exempt information.

~ ~
LESLIERCT~
Attorney General
27
Ark. Code Ann.§ 25-19-105(b)(l 1).
28
See Op. Att'y Gen. 2017-125, n. 15. See also Op's Att'y Gen. 2005-194; 2015-057.
29
See Op. Att'y Gen. 2005-194.
30
Ark. Code Ann.§ 25-19-105(b)(l 1).

31 Id.