Can a deputy sheriff stop the release of his 20-year-old personnel records under the Arkansas FOIA?

Plain-English summary

Officer Mike Lira objected to the Benton County Sheriff's Office releasing records from an earlier period of employment, some about 20 years old, in response to a request for his entire file. The Attorney General said record age alone did not create a FOIA exemption. She found the custodian's decision to release the older records with redactions largely correct, subject to withholding one older employee-evaluation record.

That older record, Bates page 055, did not form a basis for a suspension or termination and was exempt. The AG also reviewed the more recent file, although Lira had not objected to its release. She found evaluation records at pages 049–052 and 111 exempt for the same reason. Pages 001–008 might also be exempt if a disciplinary proceeding was still ongoing. She said a street address on page 040 should be redacted.

Currency note

This January 2018 opinion applies the Arkansas FOIA to particular Bates-stamped records. Check current law and the facts of another file before deciding what to release.

Background and statutory framework

The FOIA distinguishes personnel records from employee-evaluation or job-performance records. Personnel records generally may be released unless disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records require, among other things, a final suspension or termination proceeding and a record that formed a basis for that decision before release.

The AG treated the age question separately from those disclosure tests. The request sought Lira's entire file without a date limit. She noted that a Pulaski County Circuit Court decision had required disclosure of approximately 15-year-old personnel records, found that nonbinding decision persuasive, and concluded Lira's older records should not be withheld merely because they were old.

The opinion did not determine whether the custodian gathered every responsive document. It reviewed the release decision for the documents supplied. For pages 001–008, the AG left the finality of any disciplinary proceeding open and said the names of other evaluated employees should likely be redacted if those records were otherwise disclosable. She also recommended blacking out exempt information and then photocopying or scanning the pages, while noting that redaction method was not the basis of Lira's objection.

Common questions

Can Lira stop release simply because his records are about 20 years old?

No. The AG said FOIA has no exemption based only on the records' age. The older file still needed the ordinary record-by-record disclosure analysis.

Which older record did the AG say to withhold?

Bates page 055. It was an employee-evaluation or job-performance record that had not formed a basis for suspension or termination.

Were all the newer records cleared for release?

No. The AG said pages 049–052 and 111 were exempt evaluation records. Pages 001–008 depended on whether a disciplinary proceeding had reached final administrative resolution, and a street address on page 040 required redaction.

Did the AG approve the custodian's use of white-out?

She did not review the redactions on that ground. She advised that the surest method was to black out exempt information and then photocopy or scan the pages for disclosure.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORNEY GENERAL
LESLIE RUTL EDGE

Opinion No. 2018-007

January 29, 2018

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Benton County Sheriffs Office
1300 SW 14th Street
Bentonville, AR 72712

Dear Officer Lira:

You have asked for my opinion regarding documents sought under the Arkansas Freedom of Information Act ("FOIA"). Arkansas Code Annotated § 25-19- 105( c)(3)(B)(i) (Supp. 2015) authorizes the custodian, requester, or subject of personnel or employee-evaluation records to seek an opinion from this office as to whether the custodian's decision regarding release of these records is consistent with the FOIA.

Documents forwarded to this office show that a FOIA request was made to the Benton County Sheriffs Office for a copy of your "entire file," including "personnel records, evaluation and performance records, any disciplinary records, or any other applicable documentation with appropriate redactions made involving
[your] protected information." You have provided a copy of your personnel file as redacted by the custodian.

You indicated that your file covers two separate periods of employment with the Benton County Sheriffs Office, the earlier of which dates back 20 years. While you do not question the release of your "current file," as redacted, you object to release of the documents that pertain to your "previous employment" with the Sheriffs Office. I am therefore beginning my review with the documents generated during your earlier period of employment. However, I will make note of any documents from your more recent period of employment that are exempt from disclosure under the FOIA.

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

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 2

RESPONSE

Under section 25-19-105( c)(3)(B)(i), my duty is to state whether the decision of the custodian (the Benton County Sheriff's Office) is consistent with the FOIA. Having reviewed the documents provided, it is my opinion that the custodian correctly identified the majority of documents as non-exempt personnel records and employee-evaluation records. And because there is no exemption under the FOIA for documents based simply on their age, I believe the custodian's decision to release, with redactions, the documents related to your earlier period of employment is correct. Likewise, I believe the decision is largely correct to release, with redactions, the documents related to your more recent period of employment. Although you do not object to the more recent documents' disclosure, I believe some of the documents should be withheld under the FOIA as exempt employee-evaluation records.

DISCUSSION

I. General standards governing disclosure.

A document must be disclosed under the FOIA if (1) the request was directed to an entity subject to the FOIA; (2) the requested documents are public records; and (3) the requested documents are not exempt from disclosure. All three of these conditions must be satisfied for disclosure to take place.

The first two elements seem to be satisfied. The request was made to the Benton County Sheriff's Office, which is a public entity subject to the FOIA. And the request pertained to public records. The FOIA defines public records as "writings, 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 ... carried out by a public official or employee .... " 1 There is a rebuttable presumption that documents kept by a entity subject to the FOIA are public records. 2 Here, the Benton County Sheriff's Office appears to have classified as public records all of the documents forwarded for review. I will therefore proceed as though the documents are public records that must be disclosed, unless an exemption provides otherwise.

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

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 3

II. Relevant exemptions under the FOIA.

The FOIA exempts two types of records normally found in employees' personnel files: "personnel records" 3 and "employee evaluation or job performance records." 4 The custodian is responsible for classifying documents from a personnel file 5 as either personnel or employee-evaluation records. Then, the custodian must apply the appropriate exemption test to determine whether the FOIA requires that the records be disclosed.
a. Personnel records.

The FOIA does not define "personnel record." But this office has consistently opined that personnel records are all records, other than employee-evaluation records, that pertain to individual employees. 6 Whether a particular record meets this definition is a question of fact that can only be determined by reviewing the record itself. Documents properly classified as personnel records are exempt under the FOIA, but only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 7

The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court has established a balancing test to determine whether release of a personnel record would violate this standard. In

3
See Ark. Code Ann. § 25-19-105(b )(12) (Supp. 2017).
4
See Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2017).
5
This office and the leading commentators on the FOIA have observed that personnel files usually include documents such as 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). 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
7
Ark. Code Ann.§ 25-19-105(b)(12).

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 4

Young v. Rice, 8 the Court balanced the public's interest in accessing personnel records against the subject of the record's interest in keeping them rrivate. This balancing test takes place with the scale tipped in favor of disclosure.

The test involves two steps. First, the custodian must assess whether the information contained in the personnel record is of a personal or intimate nature, such that it gives rise to a greater than de minimis privacy interest for the subject. 10 If the interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest, and the record must be disclosed.

If the information gives rise to a greater than de minimis privacy interest, then the custodian must next determine whether that interest is outweighed by the public's interest in disclosure. 11 Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 12 However, because the balancing test is objective, whether the subject of the records considers their release an unwarranted invasion of personal privacy is irrelevant to the analysis. 13 Exemptions under the FOIA are narrowly construed, so the subject has the burden of showin9 that under the circumstances, his privacy interests outweigh the public's interests. 4

A personnel record, as a whole, may meet the two-part balancing test. But the record may nevertheless contain discrete information that would constitute a clearly unwarranted invasion of personal privacy if disclosed. Such information must be redacted. Examples are:

• 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));
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.
0
' Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id., 826 S.W.2d at 255.
12
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 5

• 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 records.

The FOIA does not define "employee evaluation or job performance records." 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 the job. 15 Employee-evaluation records include records generated while investigating allegations of employee misconduct, which describe the incidents that gave rise to the allegation of misconduct. 16

Documents properly classified as employee-evaluation records are generally exempt from disclosure under the FOIA. 17 An employee-evaluation record may be disclosed only if all of the following conditions apply:

15
See 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 See Ark. Code Ann. § 25-19-105(c)(l). This exemption preserves the confidentiality of the job-evaluation process and promotes honest exchanges in the employee/employer relationship. See Op. Att'y Gen. 96-168; Watkins, Peltz-Steele & Steinbuch at 223.

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 6

1. The subject employee was suspended or terminated ("level of discipline");
2. There was a final administrative resolution of the suspension or termination proceeding ("finality");
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate ("basis"); and 4. The public has a compelling interest in the disclosure of the records in question ("compelling interest"). 18

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:

[T]he 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 trust should be sufficient to satisfy the "compelling public interest" requirement. 19

As with personnel records, whether a record qualifies as an employee-evaluation record-and whether it is exempt from disclosure-is a question of fact that must first be answered by the custodian after considering the relevant information.

18
Ark. Code Ann.§ 25-19-IOS(c)(l); Op. Att'y Gen. 2008-065.
19
Watkins, et al., at 238-39 (footnotes omitted). The commentators also note that the "status of the employee" and "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists. Id. at 237 ("As 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.").

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 7

III. Application.

I can now apply these definitions and disclosure tests to the attached records. You have objected to the release of the records from your "previous employment" with the Benton County Sheriffs Office. 20 You state that these records are dated, going back some 20 years. As best I can tell, the "previous employment" records appear from Bates-stamped documents 053 through 094.

In my opinion, the custodian's decision to release records 053 through 094 is largely consistent with the FOIA. 21 The requester seeks your "entire file," with no date or time parameters. This office has no statutory duty to review a decision to gather certain records in response to a request-that is the custodian's responsibility-but the records pertaining to your previous employment seem relevant to the requester's broad query.

Just as important, the FOIA does not exempt records based on their age relative to the year of the request. Indeed, the Pulaski County Circuit Court has held that the FOIA required disclosure of personnel records that were approximately 15 years old when they were requested. 22 While a trial-court decision is not binding (and while all FOIA determinations must be made on a case-by-case basis), I find the holding to be persuasive. Therefore, I do not believe that the records Bates stamped 053 through 094 should be withheld due to their age.

Nevertheless, at least one record pertaining to your "previous employment" should be withheld. Specifically, the record at 055 is an employee-evaluation or job- performance record that did not form the basis of a suspension or termination. It is my opinion that this record is exempt under section 25-19-105( c)( 1).

20
I have Bates-stamped the records forwarded for my review, beginning with 001 and ending with 116. 21 The records stamped 095 through 110, and 112 through 116, appear to be training certifications, which would likely not result in a clearly unwarranted invasion of personal privacy if disclosed. That is, I believe the custodian correctly identified them as non-exempt personnel records. 22 See Racop v. Arkansas State Police, et al., 60CV-4192 (Circuit Court of Pulaski County, Arkansas, Sept. 9, 2015).

Officer Mike Lira
c/o Sgt. Shannon Jenkins
Opinion No. 2018-007
Page 8

You do not object to the release of records pertaining to your "current file," or your more recent employment with the Benton County Sheriff's Office. But some of these records are likely exempt from disclosure:

• The records stamped 001 through 008 are employee-evaluation records that may not have resulted in a final administrative resolution of the suspension or termination proceeding. If any such proceeding is ongoing, these documents are exempt under section 25-19-105( c)(1 ). If the records are subject to disclosure, the names of co-employees who were also evaluated should likely be redacted.

• The record stamped 040 is a personnel record with a discrete piece of information that should not be disclosed. Specifically, the street address appearing beside "Address Contact Notes" should be redacted under section 25-19-105(b)(13).

• The records stamped 049 through 052 are employee-evaluation or job-performance records that did not form the basis of a suspension or termination. It is my opinion that these records are exempt under section 25-19-IOS(c)(l).

• The record stamped 111 is an employee-evaluation or job- performance record that did not form the basis of a suspension or termination. It is my opinion that this record is exempt under section 25-19-105(c)(l).

Finally, the documents provided to my office were redacted by whiting-out information determined by the custodian to be exempt. You did not object to the documents' release on grounds that the redactions were improper, and I did not focus my review of the documents on that basis. However, I would note the surest way for a custodian to redact is to black out the exempt information, and then photocopy the redacted pages or scan them into a PDF document for disclosure.

Sincerely,

~~-_,·/~7
LESLIE RUTLEDGE
Attorney General