Can a police department release a fired officer's personnel and investigative records under FOIA over the officer's objection?

Plain-English summary

A FOIA requester asked the Fort Smith Police Department for records relating to Cody Barnett's termination, including paid administrative leave records, personnel records, evaluation records, performance records, and all investigative reports. The department's records custodian determined the records were responsive and intended to release them. Barnett objected, telling the AG that his termination letter was vague, that he believed he had not received a complete review, that the termination was based on opinion rather than fact, and that release of the records could harm his future employment and expose him to civil suits.

Attorney General Leslie Rutledge concluded that the custodian's decision to release the records was consistent with FOIA, "based on the face of the records at issue." She had reviewed the documents the custodian planned to release, applied the standard FOIA framework for personnel records and for employee-evaluation records, and concluded that the disclosure tests were met. The opinion took Barnett's stated reasons head-on: an employee's belief that his termination was unfounded is not a legally sufficient basis to withhold otherwise releasable public records. The standards under FOIA are objective. Whether records are accurate or whether termination was justified are different questions, neither of which the FOIA analysis weighs.

Currency note

This opinion was issued in 2019. 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

Two FOIA exemptions cover items typically found in personnel files, and both are relevant to a terminated officer's records:

• Personnel records (Ark. Code Ann. § 25-19-105(b)(12)): releasable except where disclosure would constitute "a clearly unwarranted invasion of personal privacy" under Young v. Rice.
• Employee evaluation or job performance records (§ 25-19-105(c)(1)): releasable only if four prongs are met: (1) the employee was suspended or terminated, (2) the proceeding has reached final administrative resolution, (3) the records formed a basis for the discipline, and (4) there is a "compelling public interest" in disclosure.

The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defined "employee evaluation or job performance records" as 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. The Court also held that the category includes records generated while investigating allegations of employee misconduct that detail incidents giving rise to the alleged misconduct. So an internal-affairs investigation file relating to a fired officer is squarely within the (c)(1) exemption: meaning the disclosure question turns on the four-prong test.

The "compelling public interest" prong is fact-driven. Watkins, Peltz-Steele, and Steinbuch's commentary, as cited in the opinion, identifies three indicators: (1) the nature of the infraction, especially whether it involves violations of public trust or gross incompetence; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. A "general interest in the performance of public employees" alone is not compelling.

Why this opinion answered "yes" with notable confidence

The opinion was unusually direct: "It is my opinion, based on the face of the records at issue, that the custodian's decision to release your records is consistent with the FOIA." That confidence comes from two facts. First, the AG had actually seen the records the custodian planned to release, which is uncommon: most FOIA opinions are issued without the AG seeing the records. Second, the records covered a fired law-enforcement officer, which is a context the AG's office has long treated as carrying a heavy public-interest weight. Police misconduct investigations, especially those leading to termination, regularly satisfy the "compelling public interest" prong of (c)(1) because of the public-trust dimension and the employee's law-enforcement role.

The opinion also engaged Barnett's specific objections head-on:

• "My termination letter was vague." Not a legal basis to withhold. FOIA does not weigh whether the records describe the termination's grounds clearly.
• "I do not believe I received a complete review." Not a legal basis to withhold. Concerns about due process in the termination are remedies that lie in court, not in FOIA review.
• "My termination was based on opinions and not facts." Not a legal basis to withhold. FOIA does not measure whether the underlying records are accurate.
• "Release will harm my future employment and could allow civil suits." Not a legal basis to withhold. Reputational concerns and potential litigation exposure are not factored into the Young v. Rice or Thomas v. Hall analyses.

The opinion put it bluntly: "Your objections to your termination are not a valid basis for withholding public records that meet the above tests for disclosure under the FOIA."

Common questions

Can a police department release a fired officer's records under Arkansas FOIA?

The opinion concluded that yes, where the four prongs of § 25-19-105(c)(1) are met (suspension or termination, final resolution, records that formed the basis for the decision, compelling public interest), the records must be released. Police-misconduct investigations leading to termination commonly meet all four.

Is an internal investigation file an "evaluation" record or a "personnel" record?

Under Thomas v. Hall, an investigation file detailing the incidents of alleged misconduct is treated as an "employee evaluation or job performance record" under § 25-19-105(c)(1) and analyzed under the four-prong test, not the personnel-records balancing test.

What does "compelling public interest" mean?

It is a fact-driven judgment. The leading commentary identifies three signals: nature of the infraction (especially public-trust violations or gross incompetence), public controversy about the agency, and the employee's position within the agency. A general interest in good government is not enough.

Does the employee's belief that the termination was unjust matter?

No. The FOIA analysis is objective. An employee can challenge the termination through whatever administrative or judicial remedies are available, but those concerns are not part of the FOIA disclosure test.

Does the requester's motive or identity matter?

Generally, no. Under prior AG opinions cited here, neither the legislature nor the appellate courts have allowed custodians to consider the requester's subjective motive. The records either qualify for disclosure or they do not.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; prior AG opinions cited include 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, 93-055, 2008-065, 2014-094, 2007-070, 2001-080, 2007-064, 2006-035, 2003-153, 2017-125, 2013-090, 2004-167, 2005-194, 2003-385, 98-126, 2016-055, 2001-112, 2001-022, 94-198, 2006-176, 2004-260, 2003-336, 98-001, 96-168, 2015-072, and 99-147.

Source

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

Original opinion text

Opinion No. 2019-012
January 31, 2019
Cody Barnett
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Arie Mitchell, Public Information Officer
Fort Smith Police Department
100 South 10th Street
Fort Smith, AR 72901
Dear Mr. Barnett:

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 the Fort Smith Police Department has received a request under the FOIA for copies of records concerning your "paid administrative leave, personnel records, evaluation records, performance records and all investigative reports relating to [your] termination." You have attached a number of documents that the records custodian has determined to be responsive to the request. And it is my understanding that the custodian intends to release the records to the requester. You object to the release, expressing concern that your "termination letter was vague" and that you "do not believe [you] received a complete review nor were [you] informed of the full determination or details of [your] termination." You further state that you feel your termination "was based on opinions and not facts," and that "[i]f this information is released … and is not accurate it will hurt [your] future employment and could allow for civil suits against [you]."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. It is my opinion, based on the face of the records at issue, that the custodian's decision to release your records is consistent with the FOIA. And your stated objections are not, in my opinion, a sufficient basis for reversing the custodian's decision.

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 are clearly met. The request was made to the Fort Smith Police Department, which is a public entity subject to the FOIA. And the requested documents are plainly "public records," which the FOIA defines 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…."

Therefore, in my opinion, the documents 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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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 number and photocopy of driver's license (Ops. Att'y Gen. 2017-125, 2013-090);
• 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. 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 (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).

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: (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.

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, which is always a question of fact that must be determined, in the first instance, by the custodian after considering all of 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.

III. Application.

Applying the above standards and rules for disclosure, it is my opinion, based on the face of the records at issue, that the custodian's decision to release your records is consistent with the FOIA. And your stated objections are not a sufficient basis for reversing the custodian's decision. You essentially express concern that your termination was unfounded and based on inaccurate information. Your objections to your termination are not a valid basis for withholding public records that meet the above tests for disclosure under the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General