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 challenge the custodian's release decision.

Attorney General Leslie Rutledge concluded she could not definitively opine on the release decision because she had not been provided the actual records. She addressed the specific objections Arthur raised, based on the limited information before her:

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.

Anyone advising a records subject or custodian today should check the current FOIA text and later opinions before relying on these 2019 conclusions.

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 objected to release on several grounds. The AG found that those stated grounds did not establish that the custodian's decision was contrary to FOIA.

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.

The AG found that Arthur's stated reasons did not establish that the custodian's proposed release was contrary to FOIA. She could not decide whether the records themselves met the applicable release test.

The three objections

Objection 1: Ark. Code Ann. § 14-2-204. This is a municipal record-keeping statute. The AG saw "no obvious bearing" on FOIA disclosure. The AG did not identify that statute as a reason to withhold these records.

Objection 2: Citizenship of the requester. Ark. Code Ann. § 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 AG found that this objection did not establish a FOIA violation by the custodian.

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

The AG did not decide whether the three records had to be released or withheld. She had not seen them and could not apply the disclosure tests to them. She found only that Arthur's stated objections were insufficient to conclude that Springdale's proposed release was contrary to FOIA.

Common questions

Q: Did the record-keeping statute establish that Springdale's proposed release violated FOIA? A: The AG said Ark. Code Ann. § 14-2-204 had "no obvious bearing" on disclosure under FOIA. She could not decide whether the records were releasable without seeing them.

Q: What if the FOIA requester is not an Arkansas citizen? A: The custodian is not required to comply with a noncitizen's FOIA request. The AG said providing non-exempt records to a noncitizen does not necessarily violate FOIA. She did not decide whether these particular records were non-exempt.

Q: Why doesn't a requester's motive matter?
A: The AG said a requester's motive is generally irrelevant to whether a non-exempt public record should be released, citing Op. Att'y Gen. 2016-118. She did not decide whether these particular records were non-exempt.

Q: Did the AG decide whether Springdale could release the internal-affairs report? A: No. If the report is an employee-evaluation record, the custodian must apply the four-part disclosure test: suspension or termination, finality, basis, and compelling public interest. The AG had not seen the report and could not decide whether those conditions were met.

Q: Why did the AG decline to decide whether the records could be released? A: She had not seen them. She could not classify the records or apply the relevant disclosure test to them. The custodian had to do that first.

Background and statutory framework

The opinion explains the disclosure tests for personnel and employee-evaluation records, then assesses Arthur's stated objections.

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.

Record-keeping statute. The AG said Ark. Code Ann. § 14-2-204 had no obvious bearing on the release of personnel and employee-evaluation records under FOIA.

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. 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

Text extracted from the official opinion PDF; OCR artifacts may remain.

STATE OF ARKANSAS
ATTORNEY GENERAL
LE SLIE RU T LEDGE

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 •'

323 CENTER STREET, SUI TE 200 · LI TTLE RO C K. ARKAN SAS 72201 TELEP HONE (50 1) 682-200 7 · FAX (50 1) 682-8084 ARKANSASAG.GOV

Mr. Kristopher C. A11hur
c/o Lt. Jeff Taylor
Opinion No. 2019-03 1
Page 2

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

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 Springdale Police Department, which is a public entity subject to the FOIA. Moreover, 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 "I

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 2 The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
2
See Op. Att'y Gen. 2010-044.

Mr. Kristopher C. A11hur
c/o Lt. Jeff Taylor
Opinion No. 2019-03 1
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then proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 3 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or job performance records." 5 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-

3
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz- Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 4 Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter ....
[p ]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 5 Ark. Code Ann.§ 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

Mr. Kristopher C. Atthur
c/o Lt. Jeff Taylor
Opinion No. 2019-031
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performance records that pertain to individual employees. 6 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." 7

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 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. 9

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. 10 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. 11 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. 12 The fact that

6
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
7
Ark. Code Ann. § 25-19-105(b )( 12).

8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.

10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id., 826 S.W.2d at 255.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S. W.2d 125, 128 (1998).

Mr. Kristopher C. A1thur
c/o Lt. Jeff Taylor
Opinion No. 2019-031
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the subject of records may consider release of the records an unwarranted invasion 13 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. 14

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)(l3));

• 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)(l0));
• 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

13
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.
14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I.

Mr. Kristopher C. Atthur
c/o Lt. Jeff Taylor
Opinion No. 2019-031
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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. 15 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 16

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 public interest). 17

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

15
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. 16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
17
Ark. Code Ann.§ 25-19-105(c)(I); Op. Att'y Gen. 2008-065.

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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" • 18 reqmrement.

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. 19 The precise nature of the public's interest is question of fact that that must be determined, in the first instance, by the custodian after he considers all the relevant information. 20 But as this office has previously observed, the very fact that the employee at issue is a law-enforcement officer creates a strong public interest in his official conduct:

The opinions from this office, and the views of the leading commentators on the FOIA, indicate that rank within the hierarchy "may be relevant" to determining whether a compelling public interest exists. But, as the commentators note, this conclusion is tempered in the context of law enforcement: "[T]he public has a great interest in the [job] performance of police officers .... " 21

The primary purpose of this exception is to preserve the confidentiality of the job- evaluation process in order to promote honest exchanges m the employee/employer relationship. 22

18
Watkins, et al., at 238-39 (footnotes omitted).
19
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of 'rank-and-file' workers are at issue"). 20 See Op. Att'y Gen. 2012-112.
21
Op. Att'y Gen. 2014-129 (quoting John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM or INFORMATION ACT 217 (footnotes omitted) (Arkansas Law Press, 5th ed., 2009). 22 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

Mr. Kristopher C. A11hur
c/o Lt. Jeff Taylor
Opinion No. 2019-031
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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. 23 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. 24 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. 25

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

23
Employee-evaluation records include records generated as pai1 of internal investigations (see supra n.16), as well as supporting documents-such as supervisors' memoranda, incident rep011s, and other records on which evaluations are based. Op. Att'y Gen. 94-127. 24 Ark. Code Ann. § 25-19-1 OS( a)( 1)(A).
25
Op. Att'y Gen. 2016-118 (and opinions cited therein).

Mr. Kristopher C. A1thur
c/o Lt. Jeff Taylor
Opinion No. 2019-031
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the FOIA. I cannot, however, otherwise specifically opine in response to your request.

Sincerely,

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LESLIE RUTLEDGE
Attorney General