How do I get the AG to actually rule on whether the sheriff's office can release my employment records, instead of just laying out the legal test?

Plain-English summary

Miguel Cordova, a former Benton County Sheriff's Office employee, wrote to the AG asking what the custodian was authorized to release in response to a FOIA request relating to his employment. He did not specify the contents of the request or attach the records.

Without records to review, the AG could only set out the standard FOIA framework:

• Public records? Yes, presumed (records held by a public entity).
• Personnel record or evaluation record? That's the threshold classification the custodian has to make. Personnel records are anything other than evaluation records that pertain to an individual employee. Evaluation records are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance.
• Personnel records test: open unless disclosure would be a "clearly unwarranted invasion of personal privacy" (Young v. Rice balancing). Burden on the resister (Stilley v. McBride).
• Evaluation records test: open only if all four prongs met (suspension/termination, finality, basis, compelling public interest).
• Per-line redactions: personal contact info under § 25-19-105(b)(13), undercover officer info under § 25-19-105(b)(10), DOBs, SSNs, medical info, etc.

The opinion is essentially a procedural and educational one. Cordova would need to either (1) get the custodian to articulate the proposed release decision and ask for AG review, or (2) wait for a release and then challenge under the judicial-review process.

For law enforcement employees specifically, the AG noted that the compelling-public-interest analysis often tips toward disclosure when the records relate to misconduct in interactions with the public. So if the request reaches an internal investigation file and discipline was imposed, those records may well come out under the four-part test.

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: What does it mean that the AG "could only set out the framework"?
A: The AG's review function under § 25-19-105(c)(3)(B)(i) requires looking at specific records and specific custodian decisions. Without those, the AG can only describe how the custodian should analyze the request, not whether their analysis was right or wrong.

Q: Why didn't the AG just release a generic FOIA explainer?
A: AG opinions can only address questions actually asked under the right procedural posture. The AG's office cannot serve as a general FOIA help desk. Each opinion responds to a specific request.

Q: What can I do as the subject of a Sheriff's Office records request if I disagree with the custodian's planned release?
A: Three options: (1) ask the custodian for AG review under § 25-19-105(c)(3)(B)(i), supplying the records so the AG can opine; (2) the custodian or requester may also seek AG review; (3) if any party still disagrees with the AG's view (or the custodian's decision), file a FOIA action in circuit court under § 25-19-107.

Q: What if the records are old?
A: Time generally does not change FOIA analysis. Old internal investigation records of a terminated officer are still evaluation records, and the four-part test still applies. The compelling-public-interest prong is the gatekeeper, and that depends on the nature of the misconduct, not when it happened.

Q: How specifically does the public-interest analysis cut for sheriff's deputies vs. rank-and-file employees?
A: Higher-ranking and more public-facing roles tilt toward disclosure. Sheriff's deputies have direct contact with the public and exercise unique police powers. Op. Att'y Gen. opinions have repeatedly tipped the analysis toward disclosure when misconduct involved public-facing conduct.

Background and statutory framework

The standard FOIA personnel/evaluation framework applies (Ark. Code Ann. § 25-19-105):

• (b)(12) personnel records are open subject to Young v. Rice privacy balancing.
• (c)(1) evaluation records are open only if the four-part test is met.
• (b)(13), (b)(11), (b)(10) supply per-line redaction obligations.

Cases and treatise: Pulaski County v. Arkansas Democrat-Gazette (rebuttable presumption of public-record status), Young v. Rice (balancing test), Stilley v. McBride (burden on resister), Thomas v. Hall (definition of evaluation record). Watkins, Peltz-Steele, and Steinbuch's treatise discusses the compelling-public-interest factors.

The AG's review function under § 25-19-105(c)(3)(B)(i) requires the records themselves; without them, the AG can only frame the analysis.

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 exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• 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. 2019-059
September 30, 2019

Miguel Cordova
c/o Sgt. Shannon Jenkins, PIO
Public Relations Division
Benton County Sheriff's Office
1300 SW 14th Street
Bentonville, AR 72712

Dear Mr. Cordova:

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, along with other information provided to me, indicates that your former employer, the Benton County Sheriff's Office, has received a request under the FOIA for records related to your employment with that agency, though you do not indicate what, precisely, the request seeks. You ask what the custodian is authorized to release and whether the decision is 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 the custodian intends to release, I cannot opine about the custodian's decisions with respect to any record that was identified as responsive to the request. Accordingly, 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 to identify records that are responsive to the request, properly classify those records, and then apply the applicable test for their disclosure.

DISCUSSION

[The opinion's general FOIA framework discussion (sections I and II) is the standard analysis covering the public-records definition, the personnel-records exception with the Young v. Rice balancing test, the employee-evaluation exception with the Thomas v. Hall definition and four-part test, and the standard list of per-line redactions including personal contact info, employee personnel numbers, marital status, DOBs, SSNs, medical info, undercover officer info, driver's license info, insurance, tax/payroll info, and banking info.]

Sincerely,

LESLIE RUTLEDGE
Attorney General