Does Arkansas FOIA let a city release police-officer audio and video recordings from a misconduct investigation, and what about a minor caught on tape?

Plain-English summary

Brent Houston, City Attorney for Benton, asked AG Leslie Rutledge to review another batch of records the city was preparing to release on the same former Benton Police officer covered by Op. Att'y Gen. 2020-048. This batch was 16 documents, including audio and video recordings, responsive to a third party's FOIA request for "records, allegations of misconduct, and internal affairs investigative files" pertaining to the former officer. The subject objected to the release.

The AG ran through the same Arkansas FOIA two-track framework (personnel records vs. employee-evaluation records, with separate release tests for each) and reached three conclusions.

First, on classification, the custodian had properly identified most of the 16 records as the former employee's evaluation records under the Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition: records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance, including misconduct-investigation records.

There was one wrinkle. A document titled "Narrative" had been classified as a personnel record. The AG noted from Houston's description that the Narrative looked like a summary of an interview conducted as part of a criminal investigation, not as an internal employment-related inquiry. If that was right, the personnel-record classification was wrong; the right track for that record was Ark. Code Ann. § 25-19-105(b)(6) (undisclosed and ongoing law-enforcement investigation records), which is outside the AG's authority to review under § 25-19-105(c)(3)(B)(i). She flagged the issue but did not resolve it.

Second, on the release test for the evaluation records, the custodian had decided each of the four prongs (level of discipline, finality, basis for decision, compelling public interest) was met, and on the face of the records the AG had no basis to disagree. The release was consistent with FOIA.

Third, on third-party privacy: some records contained information about an unnamed minor. From the face of the records, the minor's identity could not be determined, but if some other information would identify the minor, the custodian needed to consider that minor's privacy interests separately. The AG cited McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), which recognized that a constitutional right of privacy can supersede FOIA's specific disclosure requirements at least with regard to constitutionally protectable information.

This opinion sat next to Op. Att'y Gen. 2020-048 (the same officer's first set of records). Together, they illustrate how Arkansas FOIA handles a layered records request: an initial release, then a follow-up release that brings audio/video recordings, and the AG's role in reviewing each tranche on its own facts.

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

Did the AG bless the release of audio and video recordings of police misconduct?
Effectively yes, under the evaluation-records framework. The AG did not single out audio or video for special treatment; recordings produced as part of an internal misconduct investigation are evaluation records like any other, subject to the four-prong release test. The custodian had concluded the test was met, and the AG had no basis on the face of the records to overturn that.

What was the issue with the 'Narrative' document?
The custodian had classified it as a personnel record. The AG suspected, from Houston's description, that it was actually a summary of an interview conducted as part of a criminal (not employment) investigation. If so, it falls under the criminal-investigation exemption in Ark. Code Ann. § 25-19-105(b)(6) for "undisclosed and ongoing" investigations, not under the personnel/evaluation framework. The AG flagged this for the custodian's attention but did not resolve it because it sits outside the AG's review authority under the employee-records review statute.

What does the McCambridge constitutional-privacy point mean for the minor?
Arkansas's FOIA has specific exemptions, but McCambridge held that a constitutional right of privacy can override even those specific disclosure rules when constitutionally protectable information about an individual is at stake. So if the records would tend to identify a minor (even by aggregation with other information), the custodian had to weigh that constitutional privacy interest separately, beyond the standard FOIA exemptions.

What were the four prongs the custodian had to satisfy to release evaluation records?
(1) The employee was suspended or terminated. (2) There has been a final administrative resolution of the suspension/termination. (3) The records formed a basis for that resolution. (4) There is a compelling public interest in disclosure. All four had to be met. The custodian had concluded yes on all four for these records, and the AG accepted that.

Why does the AG keep saying her review is limited?
Under § 25-19-105(c)(3)(B)(i), the AG's authority is to review whether the custodian's classification and disclosure decision are consistent with FOIA, on the face of the records provided. She does not have authority to assess separate exemption schemes (like the criminal-investigation exemption in (b)(6)) or to investigate facts beyond what the custodian provides. The opinion is a check on the custodian's work, not a global ruling on the records.

Background and statutory framework

This opinion shared the same Arkansas FOIA framework as Op. Att'y Gen. 2020-048: § 25-19-105(b)(12) for personnel records (Young v. Rice balancing for "clearly unwarranted invasion of personal privacy") and § 25-19-105(c)(1) for evaluation records (four-prong release test). The Thomas v. Hall definition of evaluation records continues to do most of the work in police-misconduct cases, where investigation records detailing the conduct that led to discipline often qualify as evaluation records.

The new wrinkle here was § 25-19-105(b)(6), which exempts "undisclosed investigations by law enforcement agencies of suspected criminal activity" while ongoing. Records about a criminal investigation that the officer was the subject of, or a witness to, are governed by that statute, not by the employee-records framework. The AG flagged this without resolving it because the criminal-investigation exemption sits outside the (c)(3)(B)(i) review authority.

McCambridge v. City of Little Rock added a constitutional-privacy overlay. When records contain "constitutionally protectable information" (typically information about juveniles, certain sexual conduct, or medical conditions), the constitutional right of privacy can require redaction or withholding even where no specific FOIA exemption applies.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(6) (Supp. 2019) (undisclosed and ongoing law-enforcement investigations)
• 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) (employee-evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records, including misconduct-investigation records)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (constitutional privacy can supersede FOIA disclosure)

Prior opinions referenced:

• Op. Att'y Gen. 2000-225 (criminal-investigation records under § 25-19-105(b)(6))
• Op. Att'y Gen. 2008-065 (compelling-public-interest factors)
• Standard redaction-categories citations as in Op. Att'y Gen. 2020-048

Source

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

Original opinion text

Opinion No. 2020-051
October 5, 2020
Brent D. Houston, Esq.
City Attorney
1230 Ferguson Drive
P.O. Box 1500
Benton, AR 72018

Dear Mr. Houston:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the custodian, is made pursuant to 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 City of Benton has received a request under the FOIA for "records, allegations of misconduct, and internal affairs investigative files" pertaining to a former city employee. You have attached several documents that you believe are responsive to the request and that you intend to release without redactions. The subject of the records objects to this release. You ask whether your decision to release these records is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that the custodian has properly classified most of the records as the former employee's evaluation records. With regard to a record entitled "Narrative," a record the custodian had classified as a personnel record, it appears from the information you have provided that this record is a summary of an interview that was conducted as part of criminal investigation. In such a case, the classification of the record as a personnel record would be inconsistent with the FOIA. In that regard, please see Op. Att'y Gen 2000-225, which discusses the provision regarding undisclosed and ongoing law-enforcement investigation records. That provision, Ark. Code Ann. § 25-19-105(b)(6) (Supp. 2019), is outside of the scope of my review under subdivision 25-19-105(c)(3)(B)(i).

The custodian has determined that these evaluation records meet the applicable test for disclosure; and from the face of the records that have been provided to me, this decision appears to be consistent with the FOIA. Depending upon all of the surrounding circumstances, however, some third-party privacy concerns may merit consideration.

DISCUSSION

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) appear and apply.]

III. Application.

Having reviewed the records, it is my opinion that the custodian's decision to classify most of the records at issue as the former employee's evaluation records is consistent with the FOIA. Moreover, I cannot say that the custodian's decision to release the evaluation records, applying the appropriate test for that type of record as described above, is incorrect.

In sum, based on the records provided to me and your explanation of the custodian's decisions, it is my opinion that the custodian's decisions are generally consistent with the FOIA.

[The custodian had classified some records as both personnel records and evaluation records. For purposes of FOIA, that cannot be so. Personnel records are distinct from employee-evaluation records under the FOIA. Personnel records must be disclosed unless the balancing test set out above is met, while evaluation records must not be disclosed unless the four-part test for disclosure is met.]

[Some of the records at issue contain information concerning an unnamed minor. It does not appear from the face of the records that the minor's identity can be determined. But if there is information of which I am unaware that would identify the minor, then the custodian may wish to consider the minor's possible privacy interests before releasing the records. In McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), the Arkansas Supreme Court recognized that a constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to constitutionally protectable information.]

Sincerely,

LESLIE RUTLEDGE
Attorney General