Can Fort Smith release police investigation records when the officer says he resigned but the custodian believes he was terminated?

Plain-English summary

A requester sought all Fort Smith Police Department records related to its investigation of officer Jarrod Taylor. Taylor said the investigation was incomplete when he resigned on his own terms. The custodian appeared to believe he was terminated and planned to release the records. Taylor asked Attorney General Leslie Rutledge whether release was consistent with Arkansas FOIA.

The AG could not decide. She did not know how the custodian had classified the records, and the resignation-versus-termination dispute required factual findings outside an AG opinion. For a personnel record, the custodian must apply a privacy balancing test that favors disclosure. For an employee evaluation record, disclosure requires all four statutory conditions, beginning with suspension or termination.

The AG said voluntary resignation ordinarily does not satisfy that first evaluation-record condition. Prior AG opinions have recognized that a resignation in the face of certain, impending termination may amount to a constructive termination. She noted that Arkansas's appellate courts had not addressed that FOIA issue. The custodian had to classify each record, determine the relevant facts, apply the right test, and make any necessary redactions.

Currency note

This opinion was issued in 2018. Verify the current FOIA statute and later decisions before applying its tests to a present record request.

Common questions

Would a voluntary resignation automatically keep all investigation records closed? No. A voluntary resignation ordinarily fails the discipline condition for releasing an employee evaluation record. A personnel record follows a different, disclosure-favoring privacy test. The custodian must classify each document before deciding which test applies.

What if an officer resigned just before certain termination? The AG said prior opinions had treated a resignation in the face of certain, impending termination as possibly forced or coerced, a constructive termination for FOIA purposes. Whether that happened here was a factual question she could not resolve. She noted that neither Arkansas appellate court had addressed this issue at the time.

What are the four conditions for releasing an evaluation record? The employee must have been suspended or terminated; that proceeding must be administratively final; the record must have formed a basis for the decision; and there must be a compelling public interest in disclosure. All four are required for records properly classified as evaluation records.

Did the AG approve the custodian's planned release?
No. She did not know the basis for the custodian's classification or have enough facts to determine whether the planned release complied with FOIA.

Can one document require different treatment for different employees? Yes. Footnote 21 says a document discussing multiple employees can be an evaluation record for one and a personnel record for another. The custodian applies the appropriate test for each employee and may need to redact an identity before disclosure.

Background and statutory framework

The opinion distinguishes personnel records under Ark. Code Ann. § 25-19-105(b)(12) from employee evaluation or job performance records under § 25-19-105(c)(1). It treats the requested documents as public records on the facts presented, subject to any applicable exception. The custodian must first classify the documents and then apply the corresponding disclosure test. If release is warranted, footnote 26 identifies employee contact and private personnel information requiring redaction.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation record definition)
• Op. Att'y Gen. 2011-078 (voluntary resignation and constructive termination)

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTORNEY G ENERAL
LESLIE RUTLED GE

Opinion No. 2018-039

April 12,2018

Jarrod Taylor
c/o Lieutenant Doug Brooks
Office of Professional Standards
Fort Smith Police Department
100 South 10th Street
Fort Smith, AR 72901

Dear Mr. Taylor:

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. 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.

According to the correspondence you have provided, someone has requested "[a]ll records related to the investigation" of you by the City of Fort Smith Police Department (the "Department"). You state that the investigation "was incomplete due to [your] resignation." It appears the custodian has determined that you were terminated; and the custodian apparently intends to release the records on that basis. However, you state that you were not terminated, but that you "resigned from the ... Department on [your] own terms .... "

I gather from the information provided that there is a dispute as to whether you in fact resigned or were terminated. You ask whether the custodian's decision to disclose the records in this instance is consistent with the FOIA.

323 CE NTER SrnEET. SU ITE 200 · LITTLE RO C K. ARKAN SAS 7220 1 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKAN SASAG.GOV
Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 2

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I lack sufficient facts to definitively determine whether the custodian's decision to release the records is consistent with the FOIA. The issue of whether you resigned your position or whether you were terminated by the Department is a question of fact that I am unable to resolve in the scope of an Attorney General's opinion. I will, however, lay out the general standards regarding employee-related records and the appropriate tests governing their 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 to be met in this case. First, the request was made to the Fort Smith Police Department, which is a public entity subject to the FOIA. Second, the request appears to pertain 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 an entity subject to the FOIA are public records. 2

Based on the information you have provided, the documents appear to have been created or collected prior to or during an internal investigation. Accordingly, in my opinion, the attached documents reflect the performance or lack of performance of an official function during your employment with the Department. Therefore, these documents are public records and must be disclosed unless some specific exception provides otherwise.

1
Ark. Code Ann.§ 25-19-103(7)(A)(Supp. 2017).
2
See Op. Att'y Gen. 2010-044.
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c/o Lt. Doug Brooks
Opinion No. 2018-039
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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" 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 initial 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

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-wit.hout-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 & Robe11 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 )( 1): "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.
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c/o Lt. Doug Brooks
Opinion No. 2018-039
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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 exceptions to the FOIA 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., at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.

II Id.

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.
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c/o Lt. Doug Brooks
Opinion No. 2018-039
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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, 2003-3 85);
• 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 "employee evaluation or job performance records" 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

14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
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c/o Lt. Doug Brooks
Opinion No. 2018-039
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performance or lack of performance on the job. 15 This exception includes records generated while investigating allegations of employee misconduct that detail 16 incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all of 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 the 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: (I) 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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c/o Lt. Doug Brooks
Opinion No. 2018-039
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trust should be sufficient to satisfy the "compelling public interest" • 18 reqmrement.

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 Whether a "compelling public interest" exists is always a question of fact that the custodian must determine in the first instance, after considering all the relevant information.

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. 20

III. Application.

As discussed above, when custodians receive FOIA requests for employment- related records, they must make two initial determinations, taking into account all of the relevant facts and circumstances. The first determination is whether the record being requested meets the definition of either a personnel record or an employee-evaluation record, and the second is whether the record should be 21 disclosed after applying the appropriate test for that type of record.

As I understand it, the custodian believes the records should be disclosed. I am

18
Watkins, et al., 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."). 2
°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
21
In some cases dealing with employee-related records, certain records can be what we describe as "mixed records." A record is considered "mixed" when it can be classified as (1) more than one employee's evaluation record, (2) more than one employee's personnel record, or (3) at least one employee's evaluation record and at least one employee's personnel record. See Op. Att'y Gen. 2015-057. Thus a single document that names or discusses multiple employees can be classified in multiple ways. In such cases, the custodian must review the record, classify it as it relates to each individual employee, and apply the appropriate test for disclosure for each employee. This can lead to a case where a record that must be disclosed regarding one employee cannot be disclosed regarding another employee. If that happens, redactions to the record shielding the identity of the other employee must be made. Jarrod Taylor c/o Lt. Doug Brooks Opinion No. 2018-039 Page 8

unaware, however, of the basis for that decision. I have no information regarding the custodian's classification of the records. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. I therefore cannot definitively opine on whether the custodian's decisions with respect to the records at issue are consistent with the FOIA.

If the custodian has determined that the records are your employee-evaluation records, then they cannot be released unless all four prongs of the test for the disclosure of employee-evaluation records listed above are met. 22 With that in mind, there appears to be a dispute as to whether the first prong, the "level of discipline," has been satisfied in this case.

As explained above, a suspension or termination is a key element that must be present for the release of employee-evaluation or job-performance records under the FOIA. An employee's resignation ordinarily will not meet the "level of discipline" prong of the test for an employee-evaluation record's disclosure. 23 This office has on numerous occasions stated that "a voluntary resignation in the face of a disciplinary challenge does not equate to a suspension or termination."24 On the other hand, this office has opined that, under certain circumstances, a resignation tendered in the face of a certain, impending termination could be deemed to be forced or coerced-in other words, a "constructive termination" for the purposes of the FOIA. 25 Making this significant determination, however, requires fact finding that I cannot undertake in the course of an Attorney General's opm1on.

In conclusion, I lack sufficient information to determine whether the custodian's decision to release the records at issue is consistent with the FOIA. It is the

22
Supra text accompanying note 17.
23
See Op. Att'y Gen. 2011-078.
24
Id. See also Ops. Att'y Gen. 2018-024 and 2008-044 (and opinions cited therein).
25
Op. Att'y Gen. 2011-078. Accord Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044, 2007-322; Watkins, et al., at 231. To date, neither of Arkansas's appellate courts has addressed the issue of constructive termination with respect to the release of employee-evaluation records under the FOIA. Jarrod Taylor c/o Lt. Doug Brooks Opinion No . 2018-039 Page 9

custodian's responsibility to properly classify the records and apply the appropriate test for their disclosure, taking into consideration all of the relevant facts and surrounding circumstances.26

Sincerely,

~~
Attorney General

26
If the custodian ' s ultimate decision is to disclose the records, certain redactions from the records will have to be made prior to their release. This includes public employees' personal contact information (Ark. Code Ann. § 25-19-105(b)(l3) (Supp. 2017)) and other information from personnel records of employees or former employees, the release of which would constitute a clearly unwarranted invasion of personal privacy (Ark. Code Ann. § 25- 19-105(b)( 12); also see the bulleted list contained herein, supra p. 5).