Could Springdale Police Department release a Springdale officer's disciplinary record listing the policies he violated and the action taken?

Plain-English summary

Officer Kyle Naish, an officer at the Springdale Police Department, received a FOIA notice that the Department's custodian planned to release a record of disciplinary actions against Naish. The underlying request, sent by an outside requester, sought documentation of suspensions without pay, terminations, and demotions of current and former civil-service employees of the Department since January 1, 2015 (current employees: all dates). The release record was narrow: name and rank, date of incident, policies violated, and action taken. The investigatory file was not requested. Naish objected and asked the AG to review and invoked Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

AG Leslie Rutledge said the custodian's decision was "in all likelihood" consistent with the FOIA. The reasoning:

1. The record is an evaluation record under Thomas v. Hall. Even though it was a summary record (not a full investigatory file), it detailed the policies Naish was found to have violated and the discipline imposed. Under Op. Att'y Gen. 2017-134, 2014-052, 2001-276, that level of detail places the record in the evaluation-records bucket. (If it had merely stated the fact of discipline without describing the underlying violations, it could have been classified as a personnel record under § 25-19-105(b)(12); see Op. 2006-147.)

2. The first three prongs are met. The discipline involved suspension, termination, or demotion of civil-service employees. The disciplinary decisions were final. The records formed the basis for those decisions.

3. The compelling-public-interest prong is met. This is the swing factor in police-records cases. AG opinions consistently hold 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 that could undermine the public trust, compromise public safety, or both" (Ops. 2014-088, 2008-090). And there is "an enhanced interest in disclosure" when the misconduct concerns interactions with the public (Op. 2007-206). The Springdale record fit that pattern.

The opinion's scope is narrow: only Naish's portion of the record is addressed. The remainder (other officers' information) is left for separate analysis.

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 is a one-line disciplinary summary an evaluation record and not a personnel record?
Because it states the reason for the discipline (the policy violation), not just the fact of the discipline. AG opinions draw the line at whether the document includes the grounds. A bare "Officer X was suspended on date Y" entry is a personnel record. A "Officer X was suspended for violating policy Z" entry is an evaluation record. Op. 2006-147 makes the distinction explicit.

What if Naish disagrees that the violation occurred?
Once the disciplinary decision reached final administrative resolution, the disagreement is no longer relevant to the FOIA analysis. The decision's correctness is a separate question for the personnel grievance system or the courts. The FOIA test asks whether the record has reached finality, not whether the underlying finding was right.

Does the requester's identity matter?
Generally no. The opinion identified that under the Arkansas FOIA the requester's identity or motive does not affect whether a non-exempt public record must be released. The objective public-interest analysis is the same regardless of who is asking.

Why does law-enforcement misconduct trigger the compelling-public-interest prong more readily?
Because the public's relationship with police is built on trust, and policy violations bearing on public safety or interaction with citizens implicate that trust directly. Multiple AG opinions (2014-088, 2008-090, 2007-206) have applied this rationale. It is not automatic, but it is much more likely to apply to officers' disciplinary records than to records of, say, an administrative-clerk's workplace dispute.

Could Springdale have refused to release on the basis of Naish's objection?
No. The FOIA's analysis is objective; the subject's objection does not factor in. The custodian's job is to apply the four-prong test to the document itself.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(1) is the gate for evaluation records. The four prongs (suspension/termination, finality, basis, compelling public interest) replace the Young v. Rice balancing that applies to personnel records. The compelling-interest prong has accumulated a body of AG-opinion practice on what counts: Watkins, Peltz-Steele & Steinbuch identify three factors (nature of infraction, existence of public controversy, employee's position), and AG opinions have applied those factors to law-enforcement officers consistently.

The Springdale fact pattern (formal civil-service discipline records covering suspension, termination, or demotion) is at the high end of disclosability. The AG's "in all likelihood consistent with the FOIA" language reflects ordinary AG-opinion caution: the office did not have eyes on every page, and the custodian retained discretion on application.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (public-records definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-prong test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)

Cross-referenced AG opinions:

• Op. Att'y Gen. 2017-134, 2014-052, 2001-276 (termination/discipline records with grounds = evaluation records)
• Op. Att'y Gen. 2006-147 (bare-fact discipline records = personnel records)
• Op. Att'y Gen. 2003-316, 2002-150 (status-change forms with reasons = evaluation records)
• Op. Att'y Gen. 2014-088, 2008-090 (compelling public interest in police misconduct violating public-trust rules)
• Op. Att'y Gen. 2007-206 (enhanced interest where misconduct involves interaction with public)
• Op. Att'y Gen. 2008-065 (compelling-public-interest factors)
• Op. Att'y Gen. 2006-026 (compelling interest is a question of fact)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2020-061
December 31, 2020
Kyle Naish
Springdale Police Department
201 Spring Street
Springdale, AR 72764
Dear Mr. Naish:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the subject of the request, 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 Springdale Police Department has received
a request under the FOIA for documentation of disciplinary actions taken against
former and current civil service employees of the Springdale Police Department that
resulted in suspension without pay, termination, or demotion. For former
employees, the request only seeks documentation going back to January 1, 2015,
and for current employees, it seeks all such documentation, regardless of the date of
disciplinary action. Specifically, the requester seeks the name and rank/title of the
employee, the date of the incident, the policy or policies that were violated, and the
action taken against the employee. She does not request the full investigatory files
of each incident.
The Springdale Police Department's custodian of records has provided this office
with a copy of the record that he intends to release. The record includes your name
and rank, the date(s) of the incident(s) that resulted in disciplinary action, the
action(s) taken against you, and the departmental policies that the department found
that you violated. You have asked for my opinion whether the custodian's decision
to the release of the record is consistent with the FOIA.
323 CENTER STREET. SUITE 200 •LITTLE ROCK, ARKANSAS 72201
T ELEPHONE (501) 682-2007 • FAX (501) 682-8084
INTERNET W EBSITE . http://www.ag.state.ar.us/ Kyle Naish
Springdale Police Department
Opinion No. 2020-061
Page 2
RESPONSE
Having reviewed the only record before me that the custodian intends to release, it
is my opinion that the custodian's decision is in all likelihood consistent with the
FOIA.1
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 Springdale
Police Department, which is a public entity subject to the FOIA. Moreover, the
request appears to pertain to public records.2 Because the records are held by a
public entity, they are presumed to be public records,3 although that presumption is
rebuttable.4 Accordingly, the analysis proceeds to the third element, that is, whether
any exceptions preclude disclosure.
1 This opinion only addresses the record as it pertains to the release of your information. The
remainder of the record is outside the scope of this opinion.
2 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).
4 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). Kyle Naish
Springdale Police Depa11ment
Opinion No. 2020-061
Page 3
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found in
employees' personnel files.5 For purposes of the FOIA, these items can usually be
divided into two mutually exclusive groups: "personnel records"6 or "employee
evaluation or job performance records."7 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.
Although it is not entirely clear to me how the custodian has classified the record, it
appears that the record at issue constitutes an employee-evaluation record. I will
therefore limit my discussion to the test for disclosure relating to those types of
records.
The FOIA does not define "employee evaluation or job performance records."8 But
the Arkansas Supreme Court has adopted this office's view that the term refers to
5 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; ce11ificates 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).
6 Ark. Code Ann. § 25-19-105(b )( 12): "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."
7 Ark. Code Ann. § 25-19-105(c)(1): "Notwithstanding subdivision (b)(12) 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 ifthere is a compelling public interest in their disclosure."
8 I will refer to this group of records as "employee-evaluation records." Kyle Naish
Springdale Police Depattment
Opinion No. 2020-061
Page 4
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.9 This exception includes records generated while investigating allegations of
employee misconduct that detail incidents that gave rise to an allegation of
misconduct.10
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). 11
   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
   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
   9 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.
   10 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
   11 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. Kyle Naish
   Springdale Police Department
   Opinion No. 2020-061
   Page 5
   within the agency who commits a serious breach of public trust should
   be sufficient to satisfy the "compelling public interest" requirement.12
   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, 13 which is always a question of fact that must be determined,
   in the first instance, by the custodian 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. 14
   III. Application.
   While not made completely clear, it appears, based on the limited information
   before me, that the custodian has determined that the record intended for release is
   an employee-evaluation record. Although the record in question did not form a
   basis for the Springdale Police Department's disciplinary decision regarding you,
   this office has previously opined that letters of termination, for example, constitute
   employee-evaluation records if they contain the reasons for the termination.15
   Additionally, this office has opined that forms detailing an employee's performance
   or lack of performance on the job, including forms that state the reason for an
   employee's change in status, constitute employee-evaluation records and must be
   evaluated under the FOIA's standard for release of such records.16 Because the
   record at issue here contains the reason for the disciplinary action taken again you,
   it would, in my opinion, properly be classified as an employee-evaluation record.
   Therefore, the disclosure of the record must be evaluated under the above four-part
   test.
   12 Watkins, et al., at 238-39 (footnotes omitted).
   13 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").
   14 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
   15 E.g., Ops. Att'y Gen. 2017-134, 2014-052, 2001-276 (and opinions cited therein). If, however,
   the letter merely reflects the facts of termination or suspension, without elaboration, it would be
   properly classified as a personnel record under Ark. Code Ann. § 25-19-105(b ). See Op. Att'y Gen.
   2006-14 7 (and opinions cited therein).
   16 E.g., Ops. Att'y Gen. 2003-316, 2002-150 (and opinions cited therein). Kyle Naish
   Springdale Police Department
   Opinion No. 2020-061
   Page 6
   In this instance, it seems clear that the first three elements are met. 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 that could undermine the public trust, compromise public
   safety, or both.17 Moreover, an enhanced interest in disclosure exists in instances
   of law enforcement misconduct regarding interactions with the public. 18 Thus,
   while the existence of compelling public interest in the release of a particular record
   is always a question of fact that must be determined in light of all the surrounding
   circumstances, 19 I believe the policy violations detailed in the record at issue likely
   reflect a degree of misconduct sufficient to generate a compelling public interest in
   disclosure. Accordingly, I cannot say the custodian's decision to release the record
   in this instance is inconsistent with the FOIA.
   In sum, based on the face of the record, it appears that the conditions under section
   25-19-105( c )(1) for release of employee-evaluation records have been met, and the
   custodian's decision to release the record at hand is in all likelihood consistent with
   the FOIA.
   Sincerely,
   ~-:::=:--:;~- " -/./~J/7
   LESLIE RUTLEDGE
   Attorney General
   17 E.g., Ops. Att'y Gen. 2014-088, 2008-090 (and opinions cited therein).
   18 E.g., Op. Att'y Gen. 2007-206.
   19 See Op. Att'y Gen. 2006-026 (and opinions cited therein).