Can a Little Rock police officer block FOIA release of his 2017 disciplinary records while his appeal is still pending in circuit court?

Plain-English summary

Lieutenant Zachary Farley of the Little Rock Police Department (LRPD) asked AG Leslie Rutledge to block release of his disciplinary records. The LRPD had received a FOIA request for "records relating to [Farley] within the last 60 days." The custodian had determined the records were releasable. Farley pointed out that the disciplinary action documented in the records (from 2017) was the subject of an active appeal in Pulaski County Circuit Court. He argued the records were exempt from disclosure while the litigation was pending.

The AG split her response. On the specific records, she could not opine because Farley had not submitted them to her office. On the pending-litigation argument, she rejected it directly: the existence of a pending appeal of the underlying disciplinary action is not a sufficient basis for reversing the custodian's release decision.

The AG gave three reasons. First, the appeal would not affect personnel records unless a court ordered them protected; those records remain subject to the usual privacy test. Second, a judicial appeal does not undo a final administrative resolution for evaluation-record disclosure. Third, Farley's appeal challenged the City's disciplinary decision, not the custodian's release decision under FOIA.

The four-part test for evaluation records includes "final administrative resolution" (Ark. Code Ann. § 25-19-105(c)(1)). The opinion describes Farley's court case as an appeal of the City's final administrative decision and explains that the employing entity's final decision-making step remains final for this purpose even when an officer seeks to reverse it in court.

For Farley specifically, the AG could not classify or test the records without seeing them. She had to rely on the custodian's judgment. The custodian had decided release was appropriate, and Farley's pending-appeal argument did not, by itself, defeat that judgment.

Currency note

This opinion was issued in 2020. 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

Why doesn't a pending court appeal block release?
The AG said the court appeal did not make the City's administrative resolution less final. It also challenged the job action, rather than the custodian's FOIA decision. She noted that a court order protecting records would be a different circumstance.

What about the four-prong test's 'final administrative resolution' requirement? The opinion says "final administrative resolution" means the employing entity's final decision-making step. It describes Farley's court case as an appeal of that final administrative decision and says seeking judicial relief does not make the administrative resolution less final.

Would a court order protecting the records matter?
Yes. The AG distinguished Farley's pending appeal from a court order protecting the records. Her analysis of both personnel and evaluation records expressly reserved that circumstance.

Why couldn't the AG just look at the records directly? Because Farley did not provide them. The AG's review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) depends on the records the custodian provides. With no records to review, the AG can only set out the legal framework and address the specific objection raised.

Did the AG decide what each record contained or whether it needed redaction? No. Farley submitted no responsive records. The AG could address his appeal objection, but could not classify individual documents or decide particular redactions.

What does this opinion mean for police accountability transparency? That Farley's appeal of the disciplinary decision was not, by itself, a reason to reverse the custodian's release decision. The custodian still had to classify the records and apply the appropriate FOIA disclosure tests.

Background and statutory framework

Arkansas FOIA's two-track framework for employee records is set out in Ark. Code Ann. § 25-19-105(b)(12) (personnel records) and § 25-19-105(c)(1) (evaluation records). The four-part release test for evaluation records includes a "final administrative resolution" requirement. The AG defined that phrase as the employing entity's final decision-making step, which a later judicial appeal does not undo.

Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), establishes the rebuttable presumption that records held by a public entity are public records. The pending-litigation argument did not reverse the custodian's release decision. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplies the personnel-records balancing test. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, supplies the evaluation-records definition. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), puts the burden on the person resisting disclosure.

The AG's review authority under § 25-19-105(c)(3)(B)(i) covers consistency of the custodian's decision with FOIA. Because she had not seen the records, she could decide only Farley's specific pending-appeal objection.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Cases:

• 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

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-029

June 23, 2020

Lieutenant Zachary Farley
Little Rock Police Department
700 West Markham
Little Rock, AR 72201-1428

Dear Lt. Farley:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested records, is based on Ark. Code Ann. § 25-19-105( c )(3 )(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 Little Rock Police Department has received a request under the FOIA for records relating to you within the last 60 days. The custodian has determined that the requested records are releasable. You state that the information the City plans to release "includes personnel records regarding disciplinary action taken against [you] in 2017." You further state that this information regarding disciplinary action is part of an active appeal in the Pulaski County Circuit Court; and you express the belief that the information is exempt from disclosure while this litigation is pending.

RESPONSE

Because I have not seen any records that would be responsive to the instant FOIA request, I cannot opine about the releasabilty of any specific document or the need to redact any specific piece of information from an otherwise releasable document. 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 "employee

323 CENTER STREET. SU ITE 200 · LITTLE RO C K. ARKANSAS 7220 1 TELEPHONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG.GOV

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evaluation or job performance" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure. However, I can state that your specific objection to the release of information is not a sufficient basis for reversing the custodian's decision.

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 appear to be met. The request was made to the Little Rock Police Department ("LRPD"), which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. 1 Because the records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 Accordingly, the analysis 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. 4 For purposes of the FOIA, these items can usually be

1
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 that constitute a record of the performance or lack of performance of official functions ... carried out by a public official or employee .... " Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019).

3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) ("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). 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

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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 or job- performance records" that pertain to individual employees. 7 Whether a particular record meets this definition is 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. " 8

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 Acr 205-06 (Arkansas Law Press, 6th ed., 2017).

5
Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the fol lowing 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 )( 1): "Notwithstanding subd iv is ion (b )( 12) of th is section, al I 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, 99-14 7; Watkins, et al., at 202.

8
Ark. Code Ann. § 25-19-105(b )( 12).

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While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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. 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 minim is, 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 Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be rcleased. 16 Again, the test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of

9
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.

12
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.

16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

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government for the general public. 17 This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld. 18

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 )(1 O));
• 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).

17
See Ops. Att'y Gen. 2019-047, 2018-061.

18
See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Alt' y Gen. 2014-094 (noting that "neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester."). While the requester's subjective motive cannot be the basis for the decision, it can be considered by the custodian to determine whether it supplies an objective public interest previously unseen. Op. Att'y Gen. 2014-094 at n.8.

It should also be noted that the Legislature has not seen fit to include a generalized "harassment" exemption to the release of otherwise disclosable employee-related records. Op. Att'y Gen. 2019- 047 (and opinions cited therein).

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b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 19 But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (I) 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

I. 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). 22

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

19
I will refer to this group of records as "employee-evaluation records."

20
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.

21
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

22
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

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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. 23

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, 24 which is always a question of fact that must be determined, in the first instance, by the custodian after the consideration of 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. 25

III. Application.

Because I have not reviewed any of the records that are responsive to the FOIA request, I am unable to definitively opine on whether the custodian's decisions with respect to any of the records-how they are classified and whether they should be disclosed or withheld based on the applicable test(s)-are consistent with the FOIA. I can give my opinion, however, that your stated objection to the release of any records is unavailing in this instance.

You assert that the records should be withheld because you are appealing the City's final administrative decision regarding a disciplinary decision against you from a 2017 incident, citing Ark. Code Ann. § 25-19-lOS(c)(l). This objection is not a sufficient basis for withholding the records for at least three reasons. First, such an objection would not apply to your personnel records, unless those records were ordered protected by the court. 26 As stated above, public employee personnel

23
Watkins, et al., at 238-39 (footnotes omitted).

24
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").

25
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

26
Ark. Code Ann.§ 25-19-105(b)(8).

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records are subject to disclosure unless to do so would rise to the level of a "clearly unwarranted invasion of personal privacy."

Second, a judicial appeal of a final administrative resolution of a job action based on employee-evaluation records that are otherwise disclosable (again, absent a court order) is insufficient to support withholding the records. As explained above, one prong of the four-part test that must be met for the disclosure of employee- evaluation records is that there has been a "final administrative resolution of [a] suspension or termination proceeding." The term "final administrative resolution" here means the final decision-making step taken by the employing entity. 27 The fact that you have sought recourse through the courts to reverse that decision does not make the "administrative" resolution any less final. 28

Finally, and just as importantly, your court action is an appeal of the City's job action against you based on the 2017 incident you mentioned. It is not a judicial review of a custodian's decision to release records. 29 As such, your court action is not of the type contemplated by the FOIA to challenge the custodian's decisions with respect to your employee-related records.

Sincerely,

LESLIE RUTLEDGE
Attorney General

27
See Watkins, et al., at 232.

28
See Op. Att'y Gen. 2008-167.

29
See Ark. Code Ann. §§ 25-19-105( c )(3)(C), -107 (Supp. 2019).