Did the Arkansas AG approve release of Officer Hannah L. Thomas's personnel records after the objection?

Plain-English summary

Officer Hannah L. Thomas asked whether Little Rock's decision to release the officer's personnel and disciplinary records over an objection complied with the Arkansas FOIA. The city's notice proposed redacting personal information and withholding evaluation records unless they supported a final suspension or termination decision.

The AG said his request, including his objection, was virtually identical to the one answered in Opinion 2021-003. She referred him to that enclosed opinion for its analysis and conclusions. In Opinion 2021-003, the AG had not seen the requested records and had no information about the custodian's classification. She approved the proposed personal-information redactions. The city's evaluation-record position would be consistent with FOIA only if the other conditions of the four-part release test were also met. She could not resolve the specific objection in the three-day review because it required a factual inquiry; she noted that a court might provide a remedy.

For a custodian handling a similar request, Opinion 2021-003 calls for classifying each record before applying the relevant release test. Personnel records require a privacy balance; evaluation records require all four statutory conditions for release. This letter does not identify which of Thomas's records belong in either category or direct release of any particular document.

Currency note

This opinion was issued in 2021. Verify current Arkansas law before relying on its rules or procedures.

Common questions

Did the AG decide that Thomas's records should be released? No. The letter refers to Opinion 2021-003, whose AG said she had not seen the records and could not decide whether any specific document was releasable.

Did the AG reject Thomas's objection?
No. Opinion 2021-003 said a specific objection was too fact-intensive for the three-day advisory review and that a court might be able to hear the evidence and provide a remedy.

What parts of the city's proposed approach did Opinion 2021-003 address? It found the proposed redaction of personal information consistent with FOIA. It treated the evaluation-record position as consistent only if the remaining conditions of the four-part test were met. It did not approve release of all personnel or disciplinary records.

How should a custodian assess an officer's disciplinary records? The custodian must first classify each record. Opinion 2021-003 says personnel records and employee-evaluation records have different release tests; it did not classify the records requested here.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed the subject of certain employment records to request AG review of a custodian's release decision. The AG referred Thomas's request to Opinion 2021-003 because she said the legal analysis and its application were the same. That enclosed opinion left record-specific release and the officer's fact-specific objection unresolved.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019)
• Op. Att'y Gen. 2021-003 (enclosed analysis and conclusions)

Source

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

Original opinion text

Opinion No. 2021-008
January 8, 2021
Hannah L. Thomas
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE R UTLEDGE
c/o City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Officer Thomas:
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 includes the notice you received from the City of Little Rock stating that the City has received a request under the FOIA for your personnel and disciplinary records. The City's custodian of records has determined that "this information is part of your personnel record and is releasable" after redacting "sensitive personal information such as address, date of birth, telephone number or social security number." The City has also informed you that "[e]valuations are not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." You object to the release of the records, and have asked for my opinion as to whether the custodian's decisions with respect to the records is consistent with the FOIA. RESPONSE Your request for my opm10n regarding the custodian's decisions as to the classification and disclosure of your employment-related records, including your objections to those decisions, is virtually identical to the request I responded to in Op. Att'y Gen. 2021-003, published on Thursday, January 7, 2021. The legal 323 CENTER STREET. SUITE 200 • LITTLE ROCK, ARK/INS/IS 7220 I TELEPHONE (50 I} 682-2007 • F /IX (50 I) 682-8084 INTERNET W EBSITE . http://www.ag.state.ar.us/ Hannah L. Thomas Opinion No. 2021-008 Page 2 analysis and its application to your request consequently are the same as in that . . . prev10us opm10n. Therefore, I will not repeat the opinion herein, but instead refer you to the enclosed Opinion 2021-003 for the analysis and conclusions. Sincerely,
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LESLIE RUTLEDGE
Attorney General
Enclosure Opinion No. 2021-003
January 7, 2021
Brad Silas
STATE OF ARKANSAS
THE A'ITORi\iEY GENERAi.
LESLIE RtiTLEDGE
c/o City of Little Rock Human Resources
500 West Markham, Suite l 30W
Little Rock, AR 7220 I
Dear Detective Silas:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records 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 or 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 includes the notice you received from the City of Little Rock stating that the City has received a request under the FOIA for your personnel and disciplinary records. The City's custodian of records has determined that "this information is part of your personnel record and is releasable" after redacting "sensitive personal information such as address, date of birth, telephone number or social security number." The City has also informed you that "lelvaluations arc not releasable unless they form the basis of a suspension or termination and only if they have reached their final administrative resolution." You object to the release ol'the records, and have asked for my opinion as to whether the custodian's decisions with respect to the records is consistent with the FOii. RESPONSE Because I have not seen any records the City has determined to be responsive to the instant FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information li·om an otherwise releasable document. I can only set out the legal standards the custodian must apply 12:1 C1 r-;rrn STRLI r. St TIT 200 • Lrn1.1 Roc1c i\RK·\C.s!\s 7220 I T1.1.1:1'110>-;1 (501) 682-2007 • 1·,\x (501) (182-8084 INTLl('-.1' r WLllSITI .• hilp://www.ag.statc.ar.us/ Brad Silas Opinion No. 2021-003 Page 2 to determine whether certain employee-related records must be disclosed. As explained below, these records can include both '"personnel" and ··employee evaluation or job performance" records. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. This is the responsibility ol' the custodian in the first instance. DISCUSSION I. General standards governing disclosure. A document must be disclosed in response to a FOIA request if all three of the following clements 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 clements appear to be met. The request was made to the City of Little Rock, 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 arc presumed to be public records,2 although that presumption is rebuttabk.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 or the performance or lack of performance or official functions ... carried out by a public official or employee .... " Ark. Code Ann.~ 25-19-103(7)(/) (Supp. 2019).
·1 See Pulaski Cty. v. Ark. Democrat-Gazelle, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718. 722 (2007) (''the presumption of public record status established by the FOIJ\ can be rebutted ir 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.
/\tt'y Gen. 2005-095).
·1 This ortice and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as Brad Silas Opinion No. 2021-003 Page 3 divided into two mutually exclusive groups: "personnel records"5 or "employee evaluation or job performance records."6 The test for whether these two types ot' 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 docs 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" arc all records other than '·employee evaluation or job- performance records" that pertain to individual employccs.7 Whether a particular record meets this definition is a question of fact that can only be definitively determined by reviewing the record itself. ff 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 While the FOIJ\ docs not define the phrase "clearly unwarranted invasion of 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 & Robert Steinbuch, THE ARKANSAS FREEDOM OF INl·ORM/\TION ACT 205-06 (Arkansas Law Press, 6th eel .. 2017). 5 Ark. Code Ann. § 25-19-105(b)( 12): "It is the specilie 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]crsonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 6 Ark. Code Ann. § 25-19-105(c)(I): "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, el al., at 202. 8 Ark. Code Ann.§ 25-19-105(b)(l2). Brad Silas Opinion No. 2021-003 Page 4 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 considerations the custodian must take into account. 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 (that is, insignificant or trifling), then the public's interest in disclosure easily outweighs the privacy interest. Second, if the inf(mnation gives 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 disclosurc.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 released.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). 1•1 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022. 94-198: Watkins, el 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. Brad Silas Opinion No. 2021-003 Page 5 government for the general public.17 This ordinarily precludes the custodian from considering the identity or any subjective motives 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 of the items that must not be disclosed include:
• Personal contact information or public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-1 OS(b )(13) );
• Employee personnel number (Ops. J\tt'y Gen. 2014-094, 2007-070);
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth or public employees (Op. J\tt'y Gen. 2007-064);
• Social security numbers (Ops. J\tt'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 C1cn. 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. Att'y Gen. 2014-094 (noting that "neither the Arkansas Legislature nor our appellate courts have allowed custodians lo consider the subjective motive of the requester.''). While the requester's suhjeclive motive cannot be the basis for the decision, it can be considered by the custodian to determine whether it supplies a previously unseen objective public interest. Op. Att'y Gen. 2014-094 at n.8. It should also be noted Lhal the Legislature has nol seen fit to include a generalized "harassment" exemption to the release of otherwise disc losable employee-related records. Op. Alt' y Gen. 20 19- 047 (and opinions cited therein). Brad Silas Opinion No. 2021-003 Page 6 b. Employee-evaluation exception. The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIJ\ likewise does not definc. 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:
   [IJt 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 1'1 I will refor to this group of records as "employee-evaluation records." 20 Tho111as v. Hall, 2012 Ark. 66, 399 S. W .3d 3 87. See also Ops. Atfy Gen. 2009-06 7, 2008-004. 2007-225, 2006-03 8, 2005-030, 2003-073, 98-006, 97-222, 95-3 51, 94-306, and 93-05 5. 21 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. 22 Ark. Code Ann. § 25-19-105( c )(I); Op. Att'y Gen. 2008-065. Brad Silas Opinion No. 202 I -003 Page 7 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'' requireirn.:nt.23 These commentators also note that ''the status or 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 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 111 the employee/employer relationship.25 III. Application. When dealing with employee-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) ir so, whether under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure. I have no information regarding the custodian's classification of the records at issue. Properly classifying a record is critical so that the appropriate test for disclosure can be applied. I must note that the custodian notified you that any personal information, such as your home address, personal telephone number, Social Security number, and the like, would be redacted from any disclosable personnel records. That decision is, in my opinion, consistent with the FOIA. Furthermore, the custodian stated that any employee-evaluation records would not be disclosed "unless they form the basis of a suspension or termination and only if they have reached their final administrative 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 J of' rank-and-file' workers are at issue"). 25 Cf Op. Att'y Gen. 96-I 68; Watkins, et al., at 223. Brad Silas Opinion No. 2021-003 Page 8 resolution." As long as the other two prongs of the test set out above are also mct,26 that decision too would be consistent with the FOIA. With respect to your specific objection to the release of your personnel records, 1 am unable to address that as any resolution is very fact-intensive and is beyond what this office is able to do in the scope of a three-day opinion under the FOIA. Some judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy. 27 Finally, as noted above, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. 28 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 government for the general public.29 The custodian's analysis cannot be based on a requester's subjective motive for wanting the record. Sincerely,
   ~:::::=~:~)~ L. / .}~1'
   LESLIE RUTLEDGE
   Attorney General
   26 Supra text accompanying n.22.
   27 See Ark. Code Ann.§ 25-19-105(c)(3)(C) (Supp. 2019). 28 Supra n.18. 29 See Ops. Att'y Gen. 2018-087, 2018-061.