Can a former police officer block release of internal investigation records related to his 2013 sexual misconduct termination, even six years later?

Plain-English summary

Sergeant Byron Johncox (then with the Cave Springs Police Department) had been terminated from the Springdale Police Department in 2013 after an internal investigation into sexual misconduct allegations. In 2019, the Springdale custodian received a FOIA request for the investigation file. The custodian decided to release with redactions. Johncox objected on the grounds that (1) the termination had occurred six years ago and (2) he had never been recommended for decertification through the Commission on Law Enforcement Standards and Training.

The AG found the custodian's release decision consistent with FOIA, with two small additional redactions needed:

• An unredacted name of a patrolman given a written reprimand on a "Supervisory Action Form" dated July 30, 2013.
• A birthdate that appeared on page 6 of a Civilian Witness Interview transcription dated July 9, 2013.

The substantive analysis ran through the four-part evaluation-record test:

1. Level of discipline. Termination, met.
2. Finality. Termination final by 2013, met.
3. Basis. The investigation records formed the basis for termination, met.
4. Compelling public interest. Met. The AG noted a recurring rule: "with respect to allegations of misconduct by law enforcement officers, a compelling public interest likely exists in information reflecting a violation of departmental rules aimed at conduct which could undermine the public trust and/or compromise public safety." An enhanced interest exists in misconduct during interactions with the public.

The objections about the time elapsed and the absence of decertification proceedings did not affect the analysis. FOIA does not have a sunset on past discipline, and the certification status of the officer is a separate question from whether his investigation records meet the FOIA test.

The opinion also notes that the subject of records can pursue judicial remedies under Ark. Code Ann. § 25-19-107 if they disagree with the custodian's decision (or the AG's view of it). Either party can file in Pulaski County Circuit Court or in the circuit court of the aggrieved party's residence.

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.

Common questions

Q: Why doesn't the passage of time matter?
A: FOIA's evaluation-record test does not have a time limit. Records older than the statute of limitations on, say, defamation can still be public records. The compelling-public-interest analysis is largely about the nature of the misconduct, not when it happened.

Q: What if the officer had been cleared?
A: That changes the third prong (basis). If the officer was not terminated as a result of the investigation, or if the investigation didn't form the basis for the discipline, the records would stay exempt. Investigation records of misconduct that did not lead to suspension or termination remain exempt.

Q: Why is law enforcement misconduct treated specially?
A: Police officers exercise unique state powers (use of force, arrest, investigation) and operate in close contact with the public. The AG had repeatedly held that compelling public interest exists in police misconduct in interactions with the public. The "rank within the bureaucratic hierarchy" factor cuts in favor of disclosure when an officer's conduct directly affects citizens.

Q: What other records typically get released in police misconduct cases?
A: Internal investigation reports, supervisor narratives, witness interview transcripts, the officer's response or rebuttal, and the termination/suspension letter. Personal contact info, dates of birth, and sensitive identifiers about third parties (witnesses, complainants) generally get redacted.

Q: What if the request reaches witnesses' or complainants' identifying information?
A: That goes through the standard redaction list. Personal contact info under (b)(13), undercover officer info under (b)(10), DOBs, SSNs, etc. all come out before release.

Background and statutory framework

The standard FOIA two-tier framework applies:

• Personnel records under Ark. Code Ann. § 25-19-105(b)(12) (privacy balancing).
• Employee evaluation/job performance records under § 25-19-105(c)(1) (four-part test: discipline, finality, basis, compelling public interest).

Internal investigation records are evaluation records under the Thomas v. Hall three-part test (created by employer, to evaluate, detailing performance) when they investigate alleged misconduct.

The "compelling public interest" prong has been developed across many AG opinions. The recurring rule is that allegations of police misconduct involving violations of departmental rules aimed at conduct that could undermine public trust or compromise safety typically generate compelling public interest. Citing opinions: 2014-088, 2008-090, 2008-007, 2007-206, etc.

The Young v. Rice balancing test (308 Ark. 593) does not directly apply to evaluation records, but the Stilley v. McBride burden allocation (332 Ark. 306) and the Pulaski County presumption of public-record status (370 Ark. 435) frame the broader analysis.

Section 25-19-107 supplies the judicial-review path for FOIA disputes.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review)
• Ark. Code Ann. § 25-19-103(7)(A) (public records definition)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records)
• Ark. Code Ann. § 25-19-107 (judicial review)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2019-055
September 6, 2019

Sergeant Byron J. Johncox
Cave Springs Police Department
134 North Main Street
Cave Springs, AR 72718

Dear Sgt. Johncox:

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 your former employer, the Springdale Police Department ("Department"), has received a request, under the FOIA, to inspect or obtain copies of the following public records:

Investigation documents regarding Officer Byron Johncox. Specifically any documents related to the investigation of allegations of sexual misconduct. Any documents related to the firing of Byron Johncox as well as any disciplinary forms. Also, any outside agency investigatory reports that your department may have regarding Byron Johncox.

The Department records custodian has determined that the requested records are subject to release pursuant to the FOIA, with redactions. You object to the release of these records on the grounds that your termination from the Department occurred six years ago, and you were never recommended for decertification through the Commission on Law Enforcement Standards and Training. You have attached redacted copies of the requested records, and ask whether the custodian's decision to release these records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the custodian's decision to release the records as redacted is consistent with the FOIA.

DISCUSSION

[The opinion's standard FOIA framework discussion (sections I and II) covers the public-records definition, the personnel records exception, and the employee-evaluation exception with the four-part test. The investigation records here qualify as evaluation records under Thomas v. Hall.]

III. Application.

As I understand it, all the documents in question were created at the behest of the employer as part of an internal investigation that led to your termination. As my predecessors and I have consistently opined, records in an internal investigation file that have been generated at the behest of an employer in the course of investigating alleged employee misconduct constitute "employee evaluation/job performance records" within the meaning of the FOIA. The releasability of the records at issue must, therefore, be evaluated under the above four-part test.

It seems clear in this instance that the first three elements are met. With regard to the so-called "basis" element, i.e., whether the requested evaluation records "formed a basis" for a suspension or termination, this office has concluded on various occasions that any record up to and including a notice of suspension or termination that details the conduct that led to such disciplinary action and the reasons for such action should be deemed to have "formed a basis" for that action.

As for the fourth (the "compelling interest" element) this office has consistently opined that, with respect to allegations of misconduct by law enforcement officers, a compelling public interest likely exists in information reflecting a violation of departmental rules aimed at conduct which could undermine the public trust and/or compromise public safety. The records you have enclosed with your request reflect that the termination occurred as a result of violation of rules aimed at this type of conduct. Moreover, an enhanced interest in disclosure exists in instances of law enforcement misconduct in interactions with the public.

Thus, while the existence of compelling public interest in the release of particular records is always a question of fact that must be determined in light of all the surrounding circumstances, I believe the records at hand reflect a degree of misconduct sufficient to generate a compelling public interest in disclosure. Because the other conditions under section 25-19-105(c)(1) for release of these employee-evaluation records have also been met, the custodian's decision to release the records as redacted is consistent with the FOIA. In my opinion, your stated objections are not sufficient bases for reversing the custodian's decision.

As a final matter, please note this opinion does not preclude you from pursuing judicial remedies afforded by the FOIA. The custodian's decision is subject to court review under Ark. Code Ann. § 25-19-107, which provides for a citizen's appeal to enforce the rights granted by the FOIA. Such an appeal may be made to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party.

I must note, however, that my review of the records revealed two instances where the custodian may have overlooked redacting information that appears to be otherwise consistently redacted from the records. One is the name of a patrolman given a written reprimand on a "Supervisory Action Form" dated July 30, 2013, and the other is a birthdate on p.6 of a Civilian Witness Interview transcription dated July 9, 2013.

Sincerely,

LESLIE RUTLEDGE
Attorney General