Can a Little Rock police lieutenant block a FOIA request for his name, residence, race, education, rank, and pay history by claiming it is harassment and should go through litigation discovery instead?

Plain-English summary

Lieutenant Jordan A. Neufer of the Little Rock Police Department asked Attorney General Leslie Rutledge whether the City could release personnel data about him and other LRPD lieutenants in response to a FOIA request. The requester sought 13 categories of data: employee name; city of residence at hiring and now; race; education at hiring and now; rank at hiring; promotions and dates; current rank; pay increases and dates; current pay; demotions; and whether the employee was rehired after resignation or discharge.

The City's custodian had determined the items were personnel records subject to release. Neufer objected on three grounds:

1. Some of the data was not a public record because it did not directly relate to his individual job functions or performance.
2. The request was harassment, abusing the FOIA process to dig into private information.
3. The request should go through discovery in any civil litigation, not the FOIA.

Attorney General Leslie Rutledge rejected all three objections.

On the public-record question, the FOIA defines "public records" broadly. Section 25-19-103(7)(A) covers "writings . . . 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 . . . governmental agency . . . ." Importantly, the focus is on "agency functions," not the individual employee's job duties. The City's decisions to hire someone, retain them, promote them, set their pay, and so on are agency functions. Records of those decisions are public records under the FOIA's broad definition. Records held by a public entity are rebuttably presumed to be public records (Op. Att'y Gen. 2012-001), with the custodian bearing the burden of overcoming that presumption (Gannett River States Pub. v. Ark. Ind. Dev. Comm'n, 303 Ark. 684 (1990)).

On the harassment objection, the AG was direct: "the General Assembly has not established a generalized 'harassment exception' to the release of otherwise disclosable personnel records." Op. Att'y Gen. 2018-010 had said the same. And the FOIA test is objective: the custodian asks whether the records shed light on the workings of government, not whether the requester is acting from a permitted motive. Op. Att'y Gen. 2018-087, issued just a week earlier, repeated this point.

On the discovery objection, the AG noted that "the FOIA and rules of discovery are independent of one another." A litigant can use either or both routes to seek the same information; the existence of a discovery alternative does not block FOIA access. The Watkins, Peltz-Steele, and Steinbuch FOIA treatise and Op. Att'y Gen. 2010-038 both confirm this.

The bottom line: the City's plan to release the data was consistent with the FOIA. Neufer's objections did not provide a basis to reverse that decision.

The AG also addressed in passing Neufer's question about whether the FOIA request was sufficiently clear and specific. She noted that determining responsive records is the custodian's job, not the AG's, and declined to opine on specificity (Op. Att'y Gen. 2016-137).

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., sets up a presumption that records held by public entities are public records, with three sequential gating conditions for disclosure: covered entity, public record, and absence of exceptions.

Section 25-19-103(7)(A) defines "public records" expansively. The definition is structured around agency functions, not individual employee duties. So a record of the City's decision to hire a particular person at a particular pay rate is a record of an agency function (the hiring decision), regardless of whether the data describes the employee's day-to-day work.

Once a record is a public record, the personnel-records exception under section 25-19-105(b)(12) governs whether discrete privacy interests outweigh the disclosure presumption. Salary, rank, education, and demographic data have consistently been treated as personnel records subject to release under the Young v. Rice balancing test.

Several principles cluster around requester behavior:

• No harassment exception. Op. Att'y Gen. 2018-010, 2018-087, and others have held that the FOIA does not allow the custodian to refuse release based on perceived harassing intent.
• Objective test. The Young v. Rice balancing examines public-interest and privacy-interest factors as objective matters, not subjective motives.
• FOIA independent of discovery. A litigant may use FOIA, civil discovery, or both. Asking through one channel does not preclude the other.

Why "agency functions" beat "individual job functions"

Neufer's argument that some data (race, residence, education) did not relate to his individual job functions misread the FOIA. The FOIA does not ask whether a record relates to what the employee does in the performance of duties. It asks whether the record evidences an agency function. The agency function here is the personnel-management function: who the City hires, where it deploys them, what it pays them, when it promotes or demotes them, whether it rehires them after departure. Each requested data point is part of that agency function.

This is also why pay information about public employees is treated so consistently as releasable. The decision to pay a public employee a particular amount is an agency expenditure decision, traceable to taxpayer funds. The data is public regardless of whether the employee thinks it intrudes on personal privacy.

Common questions

Could Neufer redact race or city of residence under privacy?

The opinion did not specifically apply the Young v. Rice balancing to each item. As a practical matter, public employees' city of residence is generally treated as a personnel record subject to release (with the home address itself protected under section 25-19-105(b)(13)). Race in employment data is also typically released, partly because demographic transparency in policing is an active public-interest topic.

Was the AG saying every category of data must be released?

The opinion focused on the City's decision and rejected Neufer's blanket objections. Individual privacy redactions might still apply to specific items (e.g., personal contact information, SSNs, medical info, specific personnel identifiers). But the categories listed were largely consistent with the personnel-records framework as released-with-redactions.

What if the requester is a co-worker with a personal grudge?

It does not matter. The Arkansas FOIA is a "right to access" law, not a "right to access if your motives are pure" law. The requester's identity and reasons are not part of the analysis.

What about ongoing employment-related litigation?

The opinion addressed that. FOIA and discovery are independent. If Neufer's underlying concern was that the requester was using FOIA to bypass discovery rules in some pending case, the AG's answer is that such use is permissible. The procedural protections of discovery (protective orders, scope limits, privilege assertions) are different from FOIA, but neither displaces the other.

Could a custodian challenge a request as overly broad?

Yes, but that is a separate question the AG did not decide here. Custodians have authority to push back on requests that are not "sufficiently clear and specific" under section 25-19-105(a)(2). But that determination is the custodian's, not the AG's, and Neufer was not the custodian.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(12); 25-19-105(c)(3)(B)(i); Gannett River States Pub. v. Ark. Ind. Dev. Comm'n, 303 Ark. 684, 799 S.W.2d 543 (1990); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Ops. Att'y Gen. 2018-087 (objective test, no harassment-motive exception), 2018-010 (no generalized harassment exception), 2016-137 (custodian decides responsive-records questions), 2012-001, 2010-038, 2005-139; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Source

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

Original opinion text

Opinion No. 2018-091
July 25, 2018
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Lieutenant Jordan A. Neufer
Little Rock Police Department
700 West Markham Street
Little Rock, AR 72201
Dear Lt. Neufer:
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.

Your correspondence indicates that someone has submitted a FOIA request to the City of Little Rock for the following data concerning past or current employees of the Little Rock Police Department who hold or have held the position of lieutenant (among other positions):
1) Name of employee;
2) Employee's city of residence upon employment;
3) City of residence at present;
4) Race;
5) Education when hired;
6) Education at present;
7) Rank when hired;
8) Promotions received and dates of same;
9) Rank at present;
10) Each pay increase received and date of same;
11) Current pay;
12) Demotions; and
13) Whether rehired after resignation or discharge.

You have been informed by the City that the requested items are personnel records and are releasable under the FOIA. You acknowledge that the above information has been released in the past. But you express the belief that it should not be released because you say it should be requested through discovery and not through a FOIA request, which you view as an abuse of the FOIA and harassing in nature.

RESPONSE
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. You do not appear to dispute whether the first and third elements are met. You do, however, seem to dispute whether some of the requested data is a "public record" under FOIA. 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" are presumed to be public records. This presumption can be rebutted if the records do not "constitute a record of the performance or lack of performance of official functions." The custodian has the burden of establishing that a record's presumptive "public records" status is overcome.

Thus, because the records in question are held by a public entity, they are rebuttably presumed to be public records. The custodian in this case has determined that the requested items are personnel records. Implicit in this determination is a decision that the records are "public records." I see no reason to question that decision. The items requested constitute a record of official functions in that they all relate to both the City's decision to employ you and to your continued employment. Importantly, the definition of "public records" is not strictly focused on your individual job function or performance. Rather, the definition encompasses all agency functions ("performance or lack of performance of official functions which are or should be carried out by a . . . governmental agency . . . .").

Regarding your concern about the harassing nature of the request, as I have previously observed, the General Assembly has not established a generalized "harassment exception" to the release of otherwise disclosable personnel records. Additionally, as I recently noted, the requester's motive is not the basis for the custodian's analysis. The test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public.

Finally, as to your argument that the information should be requested through discovery, the FOIA and rules of discovery are independent of one another.

In sum, your stated objections to the release of the requested items are not, standing alone, a sufficient basis for reversing the custodian's decision.

Sincerely,

LESLIE RUTLEDGE
Attorney General