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. His correspondence did not say precisely what the request sought, and the AG had not seen any records the custodian intended to release.

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

• Public records? Records held by a public entity are presumed public, but the presumption can be rebutted. Without seeing the records, the AG could not decide whether these particular records met the definition.
• 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 AG said the custodian must identify the responsive records, classify each one, and apply the corresponding disclosure test. She did not decide whether any record in Cordova's case should be released. In discussing the compelling-public-interest factor, she quoted commentators who said the public has a great interest in police performance and that a "cop on the beat" can be as important as a police chief. She left the factual determination to the custodian.

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: Who decides which disclosure test applies?
A: The custodian must identify the responsive records and decide whether each is a personnel record, an employee-evaluation or job-performance record, or another kind of record. The custodian then applies the relevant FOIA test. The AG could not check those decisions here because she had not seen the records.

Q: What information was missing from Cordova's request for an opinion? A: He did not say precisely what records the FOIA request sought, and the AG had not seen the records the custodian intended to release. The AG could explain the governing standards but could not say whether the custodian's decision about any particular record was consistent with FOIA.

Q: Does a suspension automatically make an evaluation record public? A: No. For an evaluation or job-performance record, the opinion lists four requirements: suspension or termination, final administrative resolution, the record forming a basis for that decision, and a compelling public interest in disclosure. All four must be met.

Q: Does rank decide whether police evaluation records have compelling public interest? A: The AG quoted commentators who say rank may matter, but also that the public has a great interest in police performance and that a "cop on the beat" can be as important as a police chief. Whether the required interest exists for particular records is a factual question for the custodian first.

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.
• The opinion lists discrete information to redact from an otherwise disclosable record, including personal contact information under (b)(13) and identifying information for certain undercover officers under (b)(10).

The opinion cites Pulaski Cty. v. Ark. Democrat-Gazette, Inc. on rebutting the public-record presumption, Young v. Rice on privacy balancing, Stilley v. McBride on the burden of resisting disclosure, and Thomas v. Hall on the definition of an evaluation record. It quotes Watkins, Peltz-Steele, and Steinbuch's treatise on factors relevant to compelling public interest.

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
STATE OF ARKANSAS
ATTORNEY GENERAL
LES LIE RUTLEDGE
c/o Sgt. Shannon Jenkins, PIO
Public Relations Division
Benton County Sheriffs 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 Sheriffs 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 323 CENTER STREET. SU ITE 200 · LI TTLE ROC K. ARKANSAS 72201 TE LEPHONE(501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV

Miguel Cordova
Opinion No. 2019-059
Page 2
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 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. Because I have not seen any of the records at issue, I cannot conclusively state whether the first two elements have been met. However, based on the information I have, the request was made to the Benton County Sheriffs Office, which is a public entity and is subject to the FOIA. Moreover, it is my understanding that the request pertains 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 ...."1 Because the records are held by a public entity, they are presumed to be public records,2 although that presumption is rebuttable.3 It is my understanding that the custodian has determined that the records at issue are public records. Not having seen the records, I cannot definitively opine as to that determination. But if we presume, as we must, that they are public records, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure. 1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). 2 Id. 3 See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 ("the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not 'constitute a record of the performance or lack of performance of official functions,"' citing Op. Att'y Gen. 2005-095).

Miguel Cordova
Opinion No. 2019-059
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II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files.4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records"5 or "employee evaluation or job performance records."6 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- performance records that pertain to individual employees.7 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 4 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 & Robe11 Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). 5 Ark. Code Ann. § 25-19-105(b)( 12) (Supp. 2017): "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." 6 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." 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

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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."8 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court has provided some guidance.9 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 weighted in favor of disclosure. 10 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. 11 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. 12 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. 13 The fact that the subject of records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 14 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15 8 Ark. Code Ann. § 25-19-105(b)(12). 9 Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins, et al., at 208. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. p

• Id., 826 S.W.2d at 255.
  13
  Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. 15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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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)(13));
• Employee personnel numbers (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)( 10));
• Driver's license number and photocopy of driver's license (Op. 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 performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has adopted this office's view that employee-evaluation or job-performance records refer 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. 16 This exception includes records 16 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.

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generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 17 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 interest).
   18
   As for the final element, the FOIA never defines the key phrase "a 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: (I) 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 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" requirement. 19 17 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. 18 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. 19 Watkins, et al., at 238-39 (and opinions cited therein).

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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.20 Additionally-and what may be of particular relevance here-these commentators and this office have noted that "the public has a great interest in the performance of police officers and other law- enforcement officials, and in this case the 'cop on the beat' is just as important as the chief of police."21 But as with all elements of the test for disclosure of employee-evaluation records, whether a compelling public interest exists is a question of fact that must be addressed by the custodian in the first instance after he considers all the relevant information. The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.22 III. Application. As pointed out above, I have not been provided, and thus have not reviewed, the records at issue, and therefore I cannot definitively opine whether any of the custodian's decisions with respect to any specific record are consistent with the FOIA. The best I can do is to state that the custodian-in determining whether certain employee-related records must or must not be disclosed-bears the responsibility of properly classifying each responsive record and applying to each record the appropriate test for disclosure. Sincerely,
~~~-:_~;.:/~ L. //~'fa
LESLIE RUTLEDGE
Attorney General
20
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").
21
Id. at 238 (and opinions cited therein). See also Op. Att'y Gen. 2017-134.
22
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.