Can the subject of an Arkansas FOIA request for police-internal-affairs records block their release based on requester noncitizenship, requester motive, or a record-keeping statute?

Plain-English summary

Kristopher Arthur, the same person whose Tontitown personnel file was the subject of Op. Att'y Gen. 2019-030 a few days earlier, filed a separate AG-opinion request as the subject of a parallel Springdale Police Department FOIA request. The Springdale custodian planned to release three records in redacted form: a defensive-action report from July 28, 2012; an incident report from September 12, 2011; and an internal-affairs report from August 4, 2013. Arthur invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask the AG to block release.

Attorney General Leslie Rutledge concluded she could not definitively opine on the release decision because she had not been provided the actual records. But she dispatched the specific objections Arthur raised:

1. Record-keeping statute. Arthur cited Ark. Code Ann. § 14-2-204. The AG concluded that statute "has no obvious bearing on the release of personnel and employee-evaluation records under the FOIA."
2. Citizenship of the requester. Custodians "plainly are not required to comply with FOIA requests by noncitizens," because § 25-19-105(a)(1)(A) limits the right of inspection to citizens of Arkansas. But "a custodian does not necessarily violate the FOIA by providing records to a noncitizen, so long as the records are not exempt from disclosure."
3. Requester motive. A FOIA requester's motive is generally irrelevant to whether a non-exempt record must be released. Op. Att'y Gen. 2016-118.

The AG also flagged that the three records, judging from their general descriptions ("defensive action report," "incident report," "internal affairs report"), looked like employee-evaluation records under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. If they were evaluation records, then Arthur's privacy-based objection under Young v. Rice (the personnel-records balancing test) was the wrong framework, because evaluation records use the four-part test in § 25-19-105(c)(1).

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 has been amended periodically since 2019. The citizenship-restriction provision in § 25-19-105(a)(1)(A) has been the subject of legislative debate. Anyone advising a records subject or custodian today should pull current text and check for newer AG opinions and case law on motive, citizenship, and internal-affairs records.

Historical context

How this opinion connects to 2019-030

Three days before this opinion was issued, the AG had reviewed the Tontitown side of Mr. Arthur's records, the personnel file held by the City of Tontitown where Arthur had served as police chief. That opinion, 2019-030, said the file was releasable with two added redactions and rejected Arthur's "already given to the press" objection.

This opinion handles the Springdale Police Department side. Springdale held three different records about Arthur from his earlier service there:

• A defensive-action report from July 28, 2012.
• An incident report from September 12, 2011.
• An internal-affairs report from August 4, 2013.

Arthur tried to block release by raising several legal arguments. The AG took them seriously enough to address each one, but found none of them legally sufficient.

What the AG could and could not decide

The AG was clear that without seeing the records, she could not opine on whether the four-part Thomas v. Hall test was satisfied for evaluation records, or on whether release would constitute a clearly unwarranted invasion of personal privacy under Young v. Rice for personnel records. Those determinations, she wrote, are facts the custodian must work through.

What the AG could decide was whether the legal arguments Arthur made could justify withholding. They could not.

The three objections, dispatched

Objection 1: Ark. Code Ann. § 14-2-204. This is a municipal record-keeping statute. The AG saw "no obvious bearing" on FOIA disclosure. Section 14-2-204 governs how municipalities maintain records; it does not create a confidentiality regime that would override FOIA's release framework.

Objection 2: Citizenship of the requester. Section 25-19-105(a)(1)(A) limits the FOIA right of inspection to citizens of Arkansas. So a custodian is not required to fulfill a request from a non-citizen. But, the AG continued, that does not mean the custodian violates FOIA by giving records to a non-citizen. "A custodian does not necessarily violate the FOIA by providing records to a noncitizen, so long as the records are not exempt from disclosure." The bar runs one direction. Non-citizens cannot demand; non-citizens can sometimes receive. The objection failed.

Objection 3: Motive. Per Op. Att'y Gen. 2016-118 and many earlier opinions, requester motive is generally irrelevant. The FOIA is not a regime where the records subject can probe the requester's purposes. The custodian releases or withholds based on the records, the exemptions, and the tests, not on why the requester wants the records.

How the AG framed the records

The descriptions, "defensive action report," "incident report," "internal affairs report", strongly suggested employee-evaluation records under Thomas v. Hall. Footnote 23 of the opinion notes that evaluation records include "records generated as part of internal investigations ... as well as supporting documents, such as supervisors' memoranda, incident reports, and other records on which evaluations are based." Op. Att'y Gen. 94-127.

If those were evaluation records, then the personnel-records exception (with the Young v. Rice privacy balancing test) was the wrong tool. The applicable test was the four-part Thomas test: suspension or termination, finality, basis, and compelling public interest. Whether Springdale's facts satisfied that test, and whether the records actually fit the evaluation-records definition, were questions only the custodian could resolve with the actual documents in hand.

What this opinion does not do

It does not order release. It does not block release. It does not opine on the substance of the four-part test as applied to these specific records. It is, in effect, a doctrinal cleanup: an AG opinion that explains why the legal objections offered by the records subject do not carry the load Arthur wanted them to carry, while leaving the actual release decision to the Springdale custodian.

Common questions

Q: Can a records subject block release by pointing to a non-FOIA statute?
A: Per the AG, no, unless that statute creates a confidentiality regime that overrides FOIA. Section 14-2-204, the record-keeping statute Arthur cited, does not create such a regime, so it had "no obvious bearing" on the release decision.

Q: What if the FOIA requester is not an Arkansas citizen?
A: The custodian is not required to respond to a non-citizen's request. But the custodian can still release non-exempt records to a non-citizen without violating FOIA. The citizenship rule operates as a floor on the right to demand, not a ceiling on the custodian's authority to give.

Q: Why doesn't a requester's motive matter?
A: Because the FOIA test is objective. Whether records "shed light on the workings of government for the general public" is an objective inquiry, independent of the particular requester's reason for asking. Op. Att'y Gen. 2018-125 and 2016-118 reaffirm this principle.

Q: Are internal-affairs records always releasable?
A: No. They have to satisfy the four-part Thomas v. Hall test if they are evaluation records: suspension or termination, finality, basis, and compelling public interest. The opinion did not decide whether the Springdale IA report satisfied that test, only that Arthur's objections did not block analysis.

Q: Why did the AG decline to opine substantively?
A: Because she did not have the records. The AG cannot apply the Young v. Rice balancing test or the Thomas v. Hall four-part test without the actual documents. That is the custodian's job.

Background and statutory framework

This opinion runs on the same FOIA architecture as Op. Att'y Gen. 2019-028 and 2019-030 but focuses on the categories of objection a records subject can and cannot raise.

Citizenship rule. Ark. Code Ann. § 25-19-105(a)(1)(A) limits the right of inspection to "any citizen of the State of Arkansas." The AG read this as a one-way rule: it prevents non-citizens from demanding records, but does not prevent custodians from voluntarily providing non-exempt records to non-citizens.

Motive rule. Long-standing AG practice treats requester motive as generally irrelevant. The relevant question is whether the records, on an objective reading, fall within FOIA. See Op. Att'y Gen. 2016-118 and 2018-125.

Record-keeping statutes. Statutes that govern how records are maintained do not, by themselves, create FOIA exemptions. Confidentiality must come from a statute that says records of a particular type are not subject to disclosure, or from one of the exceptions in § 25-19-105.

Evaluation-records definition. Records generated during internal investigations, including supervisors' memoranda, incident reports, and supporting records on which evaluations are based, fall within the evaluation-records definition under Thomas v. Hall and Op. Att'y Gen. 94-127.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(a)(1)(A) (citizen-only right of inspection)
• 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. § 14-2-204 (municipal record-keeping)

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, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed., 2009)
• 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. 2019-030 (companion opinion regarding Tontitown personnel file)
• Op. Att'y Gen. 2018-125 (objective test, requester identity irrelevant)
• Op. Att'y Gen. 2016-118 (motive irrelevant)
• Op. Att'y Gen. 2014-129 (police-officer conduct, public interest)
• Op. Att'y Gen. 2012-112 (compelling-interest fact question)
• Op. Att'y Gen. 94-127 (evaluation records include incident reports, supervisor memos)
• 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. 2019-031
May 2, 2019

Mr. Kristopher C. Arthur
c/o Lt. Jeff Taylor
Springdale Police Department
201 Spring Street
Springdale, AR 72764

Dear Mr. Arthur:

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 Springdale Police Department ("Department") has received a request under the FOIA for "any and all documentation and complaints against [you] during [your] employment with the Springdale Police Department," as well as a copy of the "personnel file on [you] from [your] employment with the Springdale Police Department." The records custodian has stated that the Department intends to redact and release three files: 1) a defensive-action report from July 28, 2012; 2) an incident report from September 12, 2011, and 3) an internal affairs report from August 4, 2013. You have listed several objections to the release of these records, and you ask whether the custodian's decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that would be responsive to the FOIA request at hand, I cannot opine about whether any particular record must or must not be disclosed. I can state, based on the limited information before me, that the reasons you have given for objecting to the records' release are not recognized by the FOIA as legally sufficient reasons for me to conclude that the custodian's decision is contrary to the FOIA. But I cannot otherwise specifically opine in response to your request.

I can only set out the legal standards the custodian must apply to determine whether certain employee-related records 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 the responsive records and apply the applicable test to determine whether the records must be disclosed or not.

DISCUSSION

[Statutory framework section parallels the analysis in Op. Att'y Gen. 2019-030.]

III. Application.

When dealing with employment-related records, custodians must make two determinations: (1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) if so, whether, under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure. Because I have not seen the records at issue in this instance, I cannot definitively opine about either of these determinations.

However, I can say, based on their general descriptions (i.e., "defensive action report," "incident report," and "internal affairs report"), that it seems likely the records meet the above definition of employee-evaluation records. Employee-evaluation records include records generated as part of internal investigations, as well as supporting documents, such as supervisors' memoranda, incident reports, and other records on which evaluations are based. Op. Att'y Gen. 94-127. If that is the case, then the "personnel records" exemption is inapplicable; and your objection based on an invasion of personal privacy (under the balancing test adopted by the Court in Young v. Rice) is not a proper basis for withholding the records.

Nor do your other objections clearly establish a legally sufficient reason to withhold any employee-evaluation records that are otherwise subject to disclosure under the test set out above. The record-keeping statute you cite (Ark. Code Ann. § 14-2-204) has no obvious bearing on the release of personnel and employee-evaluation records under the FOIA. Regarding the citizenship requirement, custodians plainly are not required to comply with FOIA requests by noncitizens. Ark. Code Ann. § 25-19-105(a)(1)(A). But a custodian does not necessarily violate the FOIA by providing records to a noncitizen, so long as the records are not exempt from disclosure. Finally, this office has long noted that a FOIA requester's motive for making the request is generally irrelevant to whether a non-exempt public record should be released. Op. Att'y Gen. 2016-118 (and opinions cited therein).

In sum, I have not reviewed the actual records at issue and, therefore, I cannot definitively opine on whether the custodian's decision is consistent with the FOIA. Based on the limited information before me, I can state that the reasons you have given for objecting to the records' release are not recognized by the FOIA as sufficient reasons for me to conclude that the custodian's decision is contrary to the FOIA. I cannot, however, otherwise specifically opine in response to your request.

Sincerely,

Leslie Rutledge
Attorney General