Can the City of Gentry release a former police officer's application and training records under FOIA while withholding his performance evaluations, medical records, and crime-information-center reports?

Plain-English summary

Jay B. Williams, attorney for the City of Gentry, asked the Attorney General whether the City's planned response to a FOIA request was consistent with the Arkansas FOIA. The request sought records about a former City employee: apparently a police officer, given the references to officer inventory, Arkansas Law Enforcement Standards documents, and ACIC records. The requester wanted "any document or electronically stored information . . . from any Internal Investigation, Professional Standards file, personnel, and/or similar file . . . , including but not limited to, all job evaluations, job performance records, or other documentation of any disciplinary or termination action(s) . . . ."

The City's plan, with its custodian's analysis:

1. Release with personal-info redactions: the former employee's application and interview notes; officer inventory, letter of resignation, acceptance letter, and various emails about pay and final pay; Arkansas Law Enforcement Standards documents; training certificates and other training and education documents; and fingerprint verification.
2. Withhold: several evaluations and performance reports, on the ground that there was no compelling public interest in their disclosure.
3. Withhold: medical records and Arkansas Crime Information Center (ACIC) reports as specifically exempt.

Attorney General Leslie Rutledge agreed in general terms, though she had not seen the actual records.

Personnel records (release). The items in the first group are typical personnel records: application materials, training certificates, employment-onboarding documents. They satisfy the "personnel records" definition under section 25-19-105(b)(12) and are presumptively releasable under the Young v. Rice balancing test. The personal-information redactions the City planned (date of birth, SSN, personal address, personal phone) match the standard redaction list under section 25-19-105(b)(13) and prior AG opinions.

Evaluation records (withhold). This is the more interesting analysis. Under section 25-19-105(c)(1), evaluation records can be released only if four elements are met, the first being suspension or termination of the employee. The record indicated the former officer resigned rather than was terminated. Resignation is not the same as termination, and a voluntary departure does not satisfy element 1. So unless the resignation followed a suspension that itself was based on the evaluation records (which the City did not report), the four-part test could not be met, and the evaluation records had to remain closed. The AG's logic confirms what the City concluded: no termination, no compelling-public-interest analysis needed, evaluation records stay private.

Medical records (withhold). Public-employee medical information must always be redacted under prior AG opinions. The City's plan to withhold the medical records as a category was consistent with the FOIA.

ACIC records (withhold). ACIC reports are statutorily protected. Such records carry their own confidentiality regime separate from the FOIA personnel-records framework. The City's withholding was consistent with the FOIA.

The AG framed the result as "likely consistent" with the FOIA because she had not personally reviewed the records. The actual classification of any individual document still rested with the custodian.

Currency note

This opinion was issued in 2018. 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.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., presumes public records are open. Two main exceptions apply to records about individual employees:

• Personnel records (§ 25-19-105(b)(12)): records about an employee that are not employee-evaluation records. Open unless disclosure would be "a clearly unwarranted invasion of personal privacy" (Young v. Rice balancing test, scale tipped toward disclosure).

• Employee-evaluation records (§ 25-19-105(c)(1)): records (1) created by or at the employer's behest (2) to evaluate the employee (3) detailing the employee's performance or lack of performance, per Thomas v. Hall, 2012 Ark. 66. Closed unless all four release conditions are met: suspension or termination, finality, basis for the discipline, compelling public interest.

The first element of the four-part test (suspension or termination) is gating. If neither happened, the analysis stops there: the evaluation records are confidential, regardless of public interest. A resignation, even one that follows performance concerns, is not a suspension or termination by the employer.

Beyond personnel and evaluation records, separate statutory regimes can apply to specific record types:

• Medical information. AG opinions have consistently treated medical records of public employees as exempt under section 25-19-105(b)(2) (medical and scholastic records exception) and through application of the personnel-records privacy test.

• ACIC reports. The Arkansas Crime Information Center Act has its own confidentiality framework that limits release of criminal-history reports to authorized purposes. ACIC records held in a personnel file remain subject to the ACIC confidentiality regime regardless of FOIA classification.

Why the resignation matters

In a misconduct-investigation context, the timing of an employee's departure can determine whether evaluation records become public. Three patterns:

• Termination. All four elements of the section 25-19-105(c)(1) test can be met, and the evaluation records may be released if a compelling public interest exists.
• Suspension followed by resignation. If the employer formally suspended the employee, and the suspension was based on evaluation records, element 1 is met (suspension). Whether the records form the basis for the suspension and whether there is a compelling public interest are separate analyses.
• Resignation without prior suspension. Element 1 fails. Evaluation records cannot be released. This was the situation in Gentry.

Some employers structure exits to avoid the second pattern, allowing the employee to resign before any formal suspension issues. The effect, intentional or not, is to keep evaluation records confidential. The Arkansas FOIA does not have a workaround for that.

Common questions

Could the requester force release of the evaluation records anyway?

Not under the four-part test. Element 1 (suspension or termination) is a threshold that cannot be skipped, even if the public interest is otherwise compelling. The requester's recourse is limited to the personnel records, ACIC procedures (for criminal-history aspects, if eligible), and any litigation discovery in a separate civil case.

What if the resignation was actually a forced one?

The opinion did not address that. As a legal matter, "constructive discharge" arguments arise in employment-discrimination cases, but the AG's section 25-19-105(c)(1) analysis turns on the formal disciplinary action, not its reasons.

Are the redactions of date of birth, SSN, and address standard?

Yes. The standard redaction list under section 25-19-105(b)(13) and prior AG opinions includes personal contact information, dates of birth, SSNs, marital status, dependent information, medical information, driver's license numbers, insurance, tax data, payroll deductions, and banking information.

What is "Arkansas Law Enforcement Standards" documentation?

The Arkansas Commission on Law Enforcement Standards and Training certifies law enforcement officers. Records confirming an officer's certification, training hours, and continuing-education compliance are standard personnel-file items for police agencies. They are typically releasable under FOIA as personnel records.

Why are ACIC reports treated separately?

ACIC reports compile criminal-history information from law enforcement databases, governed by federal and state confidentiality rules tied to the National Crime Information Center system. Releasing those reports outside the limited authorized purposes can violate both federal and state law, regardless of FOIA classification.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(12), (b)(13); 25-19-105(c)(1), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Op. Att'y Gen. 2010-044, 2003-153.

Source

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

Original opinion text

Opinion No. 2018-090
July 25, 2018
Jay B. Williams, Esq.
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Williams Law Firm of Arkansas
100 W. Main Street
Gentry, AR 72734
Dear Mr. Williams:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 someone has submitted a FOIA request to the City of Gentry for various records concerning a former City employee. Specifically, the requester seeks "any document or electronically stored information . . . from any Internal Investigation, Professional Standards file, personnel, and/or similar file . . . , including but not limited to, all job evaluations, job performance records, or other documentation of any disciplinary or termination action(s) . . . ."

You state that you are producing the following set of items, after redacting personal information, such as date of birth, social security number, and personal address and phone number: 1) the former employee's application and City interview notes; 2) officer inventory, letter of resignation, acceptance letter, and various emails addressing pay and final pay issues; 3) various Arkansas Law Enforcement Standards documents related to employment; 4) training certificates and other training and/or education documents; and 5) fingerprint verification. You further state that you are withholding several evaluations and performance reports because the City contends there is no compelling public interest in the disclosure of these records. Finally, you plan to withhold medical records and Arkansas Crime Information Center (ACIC) reports.

You ask "whether the City's decision in this regard is consistent with the FOIA."

RESPONSE
I have not seen the responsive records and, therefore, cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can opine generally, however, that your decision to disclose items 1 through 5 above, with personal information redacted, is likely consistent with the FOIA because these items qualify as personnel records that are typically subject to disclosure under the applicable test. Regarding the evaluation and performance reports that you intend to withhold, I gather these qualify as evaluation records under the FOIA. As such, they cannot be released unless, as a threshold matter, the former employee was either suspended or terminated. You reference a letter of resignation, which seems to suggest there was no termination. If that is true, and if the records in question did not form the basis for any suspension, then your decision to withhold the evaluation and performance reports is consistent with the FOIA because the first element for release is not met. Your decision to withhold medical records and ACIC reports is consistent with the FOIA because these records are specifically exempt from disclosure.

I will set out the legal standards that must be applied to determine whether the particular employee-related records at issue 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 each responsive record 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 seem to be met. The request was made to the City of Gentry, which is a public entity, subject to the FOIA. 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

Therefore, in my opinion, the records at issue 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. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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. 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 that disclosure would constitute a clearly unwarranted invasion of personal privacy."

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

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. 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. 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. 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.

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 (Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital status of employees and information about dependents; dates of birth of public employees; social security numbers; medical information; any information identifying certain law enforcement officers currently working undercover; driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; and banking information.

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 the job. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and (4) the public has a compelling interest in the disclosure of the records in question.

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.

Sincerely,

LESLIE RUTLEDGE
Attorney General