Could Springdale PD release Officer Boyd's disciplinary summary even though Boyd objected the requester gave no reason for asking?

Plain-English summary

Officer Rusty Boyd, 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 Boyd. 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. Boyd objected, stating that the requester had not explained why she wanted the records and that he was being "needlessly" brought into a matter he did not want to be part of 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 Boyd 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 Boyd'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 Boyd 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 Boyd'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

Opinion No. 2020-062
December 3 1, 2020
Rusty Boyd
STATE OF ARKANSAS
THE ATTORNEY GENEnAL
LESLIE RUTLEDGE
Springdale Police Department
201 Spring Street
Springdale, AR 72764
Dear Mr. Boyd:
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, as well as correspondence from the Springdale Police Department's custodian of records, indicates that the Springdale Police Department 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 custodian 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 object to the release of your information because the requester has not informed you why she is requesting 323 CENTER STREET. SUITE 200 •LITTLE ROCK, ARKANSAS 72201 T ELEPI-IO E ( 50 I) 682-2007 • FAX ( 50 I) 682-8084 I TERNET WEBSITE . http://www.ag.state.ar.us/ Rusty Boyd Springdale Police Depa11ment Opinion No. 2020-062 Page 2 the information, stating that you are being "needlessly" brought into a matter that you "don't want to be involved in." RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. 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). Rusty Boyd Springdale Police Depa1iment Opinion No. 2020-062 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; 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). 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)(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." 8 I will refer to this group ofrecords as "employee-evaluation records." Rusty Boyd Springdale Police Depaiiment Opinion No. 2020-062 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)(I); Op. Att'y Gen. 2008-065. Rusty Boyd Springdale Police Depa1iment Opinion No. 2020-062 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. However, the 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 released, 14 and the custodian is ordinarily precluded from considering any subjective motives or the identity of a requester when determining whether a record must be disclosed or withheld. 15 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. 16 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, 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 Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. 15 See Ops. Att'y Gen. 2018-087, 2018-061; see also Op. Att'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. 16 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. Rusty Boyd Springdale Police Department Opinion No. 2020-062 Page 6 this office has previously opined that letters of termination, for example, constitute employee-evaluation records if they contain the reasons for the termination.17 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.18 Because the record at issue here contains the reason for the disciplinary action taken against 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. In this instance, it seems clear that the first three elements are met. As for the fourth-the "compelling public interest" element-this office has consistently opined that, with respect to allegations of misconduct by law enforcement officers, that heightened 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.19 Thus, while the existence of a 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, 20 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 is inconsistent with the FOIA. You have also expressed concern regarding the motivations of the requester, but as explained above, the identity or motivations of the requester are generally irrelevant in determining whether a record is subject to release. 17 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. 2006-147 (and opinions cited therein). 18 E.g., Ops. Att'y Gen. 2003-316, 2002-150 (and opinions cited therein). 19 E.g., Ops. Att'y Gen. 2014-088, 2008-090 (and opinions cited therein). 20 See Op. Att'y Gen. 2006-026 (and opinions cited therein). Rusty Boyd Springdale Police Department Opinion No. 2020-062 Page 7 In sum, based on the face of this record, which is the only information before me, 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,
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   LESLIE RUTLEDGE
   Attorney General