Can a city release a former police chief's personnel and disciplinary records under the Arkansas FOIA when the chief objects on the ground that the file was already produced to the press?

Plain-English summary

A local TV news reporter sent the City of Tontitown a FOIA request for the "full personnel file" of former police chief Kris Arthur, plus "the reasons for termination." The city attorney, R. Justin Eichmann, asked the AG to review the custodian's decision to (a) release Arthur's personnel file in redacted form and (b) treat the request for "reasons for termination" as not a proper FOIA request. Arthur objected to the release, citing the fact that his personnel file had already been provided to a different press requester in May 2018 (without his objection at that time).

Attorney General Leslie Rutledge made four findings:

1. Classification correct. The records were properly classified as either personnel records or employee-evaluation records, even though the custodian had not separated them by category.
2. Release tests met. The applicable disclosure tests, the Young v. Rice balancing test for personnel records and the four-part Thomas v. Hall test for evaluation records, were satisfied.
3. Additional redactions required. Beyond the redactions the custodian had already applied, two specific items had to be redacted before release: Arthur's date of birth on a "Personnel Action Notice" dated 12-26-14, and his marital-status information on his two IRS W-4 forms and on a Personal History Statement dated 02/28/13.
4. Arthur's prior-disclosure objection rejected. The fact that the file had been released earlier to a different press requester was not a legally sufficient reason to withhold it from this requester. FOIA records can be requested and released to multiple requesters, simultaneously or at different times. Requester identity and motive are generally irrelevant.

The AG also rejected the custodian's separate determination that the reporter's request for "reasons for termination" was not a proper FOIA request. Asking for the reasons for a public employee's termination is a normal request. Whether the city had records responsive to that request was a fact question the custodian had to answer; the city was not required to create a new document, but it could not refuse to search for existing ones.

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.

The Arkansas FOIA is amended frequently. Specific provisions cited here, the personnel-records exception, the evaluation-records exception, the redaction list at § 25-19-105(b)(13), and the no-create-new-records rule at § 25-19-105(d)(2)(C), have been amended at least once since 2019. Anyone making a release decision today should pull the current text of § 25-19-105 and look for newer AG opinions on prior-disclosure objections, redactions, and the proper-request standard.

Historical context

What the city was deciding

Tontitown's custodian had received a request from a TV reporter for the full personnel file of former police chief Kris Arthur, plus the reasons for his termination. The custodian had pre-classified the responsive records as personnel or evaluation records, made several redactions of items like contact information and SSNs, and was prepared to release. Arthur, the records subject, objected on the ground that another reporter had already received his file in May 2018. The city attorney sent the matter to the AG for review under § 25-19-105(c)(3)(B)(i).

Personnel records vs. evaluation records (as of 2019)

The AG laid out the same classification framework as in companion opinion 2019-028, but in fuller detail because Tontitown's records were a mix of categories.

Personnel records under § 25-19-105(b)(12) are "all records other than employee-evaluation and job-performance records that pertain to individual employees." They are public unless disclosure would constitute a "clearly unwarranted invasion of personal privacy."

The Young v. Rice balancing test for personnel records has two steps:

1. Is the information "of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest"? If not, the thumb on the disclosure side wins.
2. If the privacy interest is more than de minimis, balance it against the public interest. The person resisting disclosure carries the burden. Stilley v. McBride, 332 Ark. 306, 313 (1998).

The subject's view that the release would invade their privacy is irrelevant; the test is objective.

Mandatory redactions within otherwise releasable personnel records, even if the file as a whole passes the test:

• Personal contact information (Ark. Code Ann. § 25-19-105(b)(13))
• Employee personnel number
• Marital status and dependent information
• Date of birth
• Social security numbers
• Medical information
• Information identifying undercover law-enforcement officers (Ark. Code Ann. § 25-19-105(b)(10))
• Driver's license number and photocopy
• Insurance coverage
• Tax/withholding information
• Payroll deductions
• Banking information

Employee-evaluation records under § 25-19-105(c)(1) are governed by the Thomas v. Hall four-part test: suspension or termination, finality, basis, and compelling public interest. The AG's analysis here mirrored 2019-028 in finding the test met for the police-chief context.

The two redactions the AG flagged

Even with the file generally releasable, two specific items had to be redacted before disclosure:

1. Date of birth. A "Personnel Action Notice" dated 12-26-14 contained Arthur's date of birth. DOB redaction is mandatory under Op. Att'y Gen. 2007-064.
2. Marital status. Two IRS W-4 forms and a "Personal History Statement" dated 02/28/13 contained marital-status information. Marital status redaction is mandatory under Op. Att'y Gen. 2001-080.

Why "the file was already released" was not a winning objection

Arthur's argument was, in effect: a different reporter already has this file from May 2018 (when he did not object), so why give it again? The AG's response: that is not how FOIA works. Records subject to FOIA can be requested by, and released to, multiple requesters, simultaneously or at different times. They can also be re-released to the same requester at different times. The custodian's analysis turns on whether the records are exempt, not on who has previously seen them. Op. Att'y Gen. 2018-125 (and many earlier opinions) reaffirms that requester identity and motive are generally irrelevant.

Why "request for reasons for termination" was a proper request

The custodian had separately decided that the reporter's request for "the reasons for termination" was not a proper FOIA request. The AG disagreed. On its face, the request was not improper. Whether responsive records existed was a fact question. The city did not have to create a new document just to comply, per § 25-19-105(d)(2)(C), but it could not refuse to search for or produce existing records. That meant the custodian had to look for documents that explained the reasons for termination (e.g., a termination letter, a council resolution, an internal memo), produce any responsive non-exempt records, and apply the proper redactions. Saying "this is not a proper request" was not a defensible answer.

Companion opinion: 2019-031

A companion opinion the same week, Op. Att'y Gen. 2019-031, addressed Mr. Arthur's separate request seeking to block release of records held by the Springdale Police Department. The opinions were issued days apart and reflect the AG's broader, consistent reading of the personnel and evaluation exceptions.

Common questions

Q: Can a personnel file be released even if the employee already had it released in a prior FOIA request?
A: Per the AG, yes. The fact that a file was released earlier to one requester does not make it exempt from a later request. FOIA records can be released to multiple requesters at different times.

Q: What if the records subject objects strongly?
A: A strong subjective objection does not change the analysis. The test is objective. The subject's belief that release is an invasion of privacy is irrelevant. Young v. Rice and Op. Att'y Gen. 2016-055 are explicit on this.

Q: Are there items that must always be redacted, even from a releasable file?
A: Yes. The opinion lists at least 12 mandatory redactions, including DOB, SSN, marital status, medical information, payroll deductions, and banking information. The custodian must scan for and redact these even when the file as a whole passes the disclosure test.

Q: What about a request for "reasons for termination"?
A: The opinion treats this as a proper request. The custodian must look for existing responsive records (termination letter, council resolution, internal memo). The custodian does not have to create a new document, but cannot just refuse the request.

Q: Why is a police chief's personnel file releasable when the chief objects?
A: Because Arkansas FOIA explicitly subordinates subject-objection to the objective test, and because law-enforcement context tends to push toward compelling public interest. The AG quoted the leading commentators: "[T]he public has a great interest in the [job] performance of police officers."

Background and statutory framework

This opinion applies the same FOIA architecture as Op. Att'y Gen. 2019-028 (the Marianna case). Key statutes:

• Ark. Code Ann. § 25-19-103(7)(A) defines "public records."
• Ark. Code Ann. § 25-19-105(b)(12) is the personnel-records exception ("clearly unwarranted invasion of personal privacy").
• Ark. Code Ann. § 25-19-105(c)(1) is the employee-evaluation-records exception (four-part test).
• Ark. Code Ann. § 25-19-105(b)(10) requires redaction of undercover-officer identifying information.
• Ark. Code Ann. § 25-19-105(b)(13) requires redaction of personal contact information.
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is the AG-opinion procedure.
• Ark. Code Ann. § 25-19-105(d)(2)(C) confirms a public entity is not required to create a document just to comply with a FOIA request.

Two key cases anchor the analysis:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines evaluation records to include internal-investigation records.
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), is the personnel-records balancing test. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), confirms the resisting party carries the burden.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer redaction)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal-contact-information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-105(d)(2)(C) (no obligation to create new records)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), Ark. Supreme Court, balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), Ark. Supreme Court, burden on resisting party

Reference:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017)

Related AG opinions:

• Op. Att'y Gen. 2019-031 (Arthur's parallel objection regarding Springdale PD records)
• Op. Att'y Gen. 2018-125 (objective test, requester identity irrelevant)
• Op. Att'y Gen. 2016-055 (objective test)
• Op. Att'y Gen. 2014-094 (employee personnel number redaction)
• Op. Att'y Gen. 2007-070 (employee personnel number redaction)
• Op. Att'y Gen. 2007-064 (date-of-birth redaction)
• Op. Att'y Gen. 2006-035 (SSN redaction)
• Op. Att'y Gen. 2005-194 (banking and tax-withholding redaction)
• Op. Att'y Gen. 2003-385 (tax/withholding redaction)
• Op. Att'y Gen. 2003-153 (SSN, medical redaction)
• Op. Att'y Gen. 2004-167 (insurance coverage redaction)
• Op. Att'y Gen. 2001-080 (marital status redaction)
• Op. Att'y Gen. 2017-125, 2013-090 (driver's license redaction)
• Op. Att'y Gen. 98-126 (payroll deductions redaction)
• Op. Att'y Gen. 2010-044 (presumption that records held by FOIA entity are public)
• Op. Att'y Gen. 2015-072, 99-147 (definition of personnel records)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-030
April 26, 2019

R. Justin Eichmann, Esq.
Harrington, Miller, Kieklak, Eichmann & Brown, P.A.
4710 South Thompson, Suite 102
Springdale, AR 72764

Dear Mr. Eichmann:

As the attorney for the City of Tontitown, you have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made on behalf of the City's custodian of records pursuant to 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 City of Tontitown received a FOIA request from a local television news reporter for the "full personnel file for former police chief, Kris Arthur," along with "the reasons for termination, as applicable to his former employment." You indicate that the custodian has determined that the requested records are Mr. Arthur's personnel or evaluation records, and state the custodian's determination that the records "are not exempt from disclosure and therefore must be provided in response to the request" in redacted form. Importantly, you state that Mr. Arthur objects to the release of these records, asserting that "the records should not be provided since members of the press have previously sought, and received" a copy of his personnel file.

Finally, you state with respect to the second part of the reporter's request, a reason for the termination, that the custodian has determined that the second part of the request is not a "proper request pursuant to the FOIA." You ask whether the custodian's decisions in this instance are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decisions are consistent with the FOIA. Having reviewed the records the custodian intends to release, it is my opinion, based on the face of the records, that the custodian has properly classified the records as Mr. Arthur's personnel or evaluation records (although the custodian does not specifically identify what records meet which classification). It is also my opinion that the applicable tests for disclosure of the records, as redacted, have been met. However, my review has uncovered additional redactions that must be made prior to disclosure. Furthermore, the objection you state that Mr. Arthur raised regarding the release of these records, in my opinion, is not a legally sufficient reason to withhold the records. Finally, it is my opinion that the reporter's request for reasons for Mr. Arthur's termination is, standing alone, a valid request under the FOIA. Whether any records exist that would be responsive to that request is for the custodian to determine, and is a question of fact that I cannot address in an Attorney General's opinion.

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 Tontitown, which is a public entity subject to the FOIA. The request also appears to pertain to public records.

II. Exceptions to disclosure.

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. 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." Ark. Code Ann. § 25-19-105(b)(12).

The Arkansas Supreme Court, in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), provided 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 test has two steps. First, is the information of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest? Second, if so, is that interest outweighed by the public's interest in disclosure? Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). The fact that the subject of records may consider release an unwarranted invasion of personal privacy is irrelevant; 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 must 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 (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license number and photocopy of driver's license;
• 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." The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defined the term 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. This includes records generated while investigating allegations of employee misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met: suspension or termination; final administrative resolution; the records formed a basis for the decision; and a compelling public interest in disclosure. Ark. Code Ann. § 25-19-105(c)(1).

III. Application.

Having reviewed the records at issue, it is my opinion that the custodian has properly classified the records as either Mr. Arthur's personnel records or employee-evaluation records. Although the custodian has not differentiated between the categories, that distinction is easily made based on the face of the records. The applicable tests for disclosure of each type, as set out above, have been satisfied.

It is my opinion that the custodian's redactions of non-disclosable information from the otherwise releasable documents are mostly consistent with the FOIA. My review has revealed some additional redactions that must be made, however. On the document entitled "Personnel Action Notice" dated "12-26-14," Mr. Arthur's date of birth must be redacted prior to the record's release. Also, on Mr. Arthur's two Internal Revenue Service Forms W-4 and on the document entitled "Personal History Statement" dated "02/28/13," the information reflecting his marital status must be redacted.

Regarding Mr. Arthur's reported objection to the records' release, that his personnel file has already been released to someone in the media in 2018 (without his objection), and thus should not be provided again, that is not a legally permissible reason to withhold releasable documents under the FOIA, in my opinion. Records subject to disclosure under the FOIA can be requested by and disclosed to multiple requesters, and irrespective of whether those FOIA requests come simultaneously or at differing times. Such records can also be released to the same requester at different times. The custodian's analysis of whether a record must or must not be released cannot be based on these kinds of issues. As this office has repeatedly stated:

[A] FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. The test under the FOIA for the release of [employee-related] records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public.

Op. Att'y Gen. 2018-125 (and opinions cited therein) (emphasis in original).

Finally, in my opinion, the custodian's determination that the reporter's request for reason[s] for Mr. Arthur's termination is not a "proper request pursuant to the FOIA" is inconsistent with the FOIA. I was not provided any explanation or analysis as to why the custodian arrived at this conclusion. However, on its face, it is my opinion that there does not appear to be anything improper about the request even though the phrasing might, to some, seem confusing. Whether the City has a record or records that would be responsive to this request is a factual question that can only be determined by the custodian. And of course, a public entity is not required to create a document just to comply with a FOIA request. Ark. Code Ann. § 25-19-105(d)(2)(C) (Supp. 2017).

In sum, it is my opinion that the custodian has correctly classified the responsive records and applied the appropriate tests for their disclosure in a manner consistent with the FOIA. The redactions of exempt information were mostly consistent with the FOIA, although additional redactions must be made as indicated above. The objection to disclosure raised by the subject of the records lacks a legally sufficient basis. And the requester's second request was, in general, a proper request under the FOIA. But only the custodian can determine whether any records exist that would be responsive to that request.

Sincerely,

Leslie Rutledge
Attorney General