Can a former Fort Smith police officer who resigned before discipline get his name redacted from records released about an internal investigation?

Plain-English summary

The Fort Smith Police Department got a FOIA request for documents related to an internal investigation that involved several officers. John Little, one of the involved officers, asked the AG whether his name could be redacted from the records before they were released, since he resigned before any discipline was imposed. The custodian planned to release some documents without redacting Little's name.

The AG didn't get to a definitive answer because he hadn't seen the actual records. Instead, he laid out the analytical framework. Three possibilities for any given record:

1. The record is Little's employee-evaluation record. If the record was created by or at the FSPD's behest to evaluate his job performance, and no suspension or termination happened (Little resigned), the four-prong test isn't met and the record stays exempt. So records that are clearly Little's evaluation records, and only his, are not releasable.

2. The record is a "mixed record." Internal investigation records often involve multiple officers. A document that is Little's evaluation record may also be another officer's evaluation record. If the test for disclosure is met for the other officer (e.g., they were suspended or terminated), the record gets released. But Little's name should be redacted before release, since the test isn't met as to him.

3. The record is Little's personnel record. Then the Young v. Rice balancing test applies: privacy interest weighed against public interest, with the scale tipped toward disclosure. Resignation alone doesn't create a special privacy interest; the AG cited Op. 2000-179 for the rule that "the fact that the employee was not disciplined as a result of the investigation will not be a factor in determining the record's disclosability."

The AG also flagged Thomas v. Hall and Davis v. Van Buren School District for the boundary between evaluation and non-evaluation records. Use-of-force reports and other "routine narrative accounts" by an officer are not evaluation records because they are not created by the employer to evaluate the officer.

Currency note

This opinion was issued in 2021. 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

Does resignation before discipline protect my evaluation records?

Yes, for evaluation records that are about you alone. The four-prong test for releasing evaluation records requires actual suspension or termination. Resignation isn't either. So evaluation records that are exclusively about you are exempt.

Will my name come out anyway because of the mixed-record rule?

If a document is mixed (covers you and another officer), and the other officer was disciplined, the document gets released with your name redacted. The substance about the other officer is public; your identifying information is not.

What if the same record is my evaluation but a witness's personnel record?

That's the mixed-record scenario. The custodian must apply the appropriate test for each person. If the witness's personnel record is releasable under Young v. Rice and your evaluation record is exempt, the custodian releases the document with your name redacted.

Can I argue for redaction beyond just my name?

The AG's reading is that resignation alone does not create a special privacy interest meriting broader redaction. You would need to show under Young v. Rice that release would invade your personal privacy in a way that outweighs the public interest. The opinion is skeptical that mere discomfort about being named in an internal investigation file would meet that standard.

What about non-evaluation records that mention me?

Those may be your personnel records or non-exempt public records. Personnel records go through the Young v. Rice balancing test. Non-exempt public records are released subject to standard required redactions of personal information.

Background and statutory framework

Personnel records under § 25-19-105(b)(12) are released under the Young v. Rice balancing test. Evaluation records under § 25-19-105(c)(1) require all four prongs (suspension/termination, finality, basis, compelling interest).

Thomas v. Hall, 2012 Ark. 66, defined evaluation records: created by or at the behest of the employer to evaluate the employee, detailing performance or lack of performance. The same case held that routinely-prepared use-of-force reports were not evaluation records because they were "created by the police officer, not by a supervisor, and [were] a routine narrative account of the officer's actions during a specific incident."

Davis v. Van Buren School District (2019) reaffirmed that to be an evaluation record, the record must have been "created by the employer regarding the employee's performance with regard to specific incidents."

Mixed records (those that constitute multiple people's evaluation records, or one person's evaluation and another's personnel record) require record-by-record, person-by-person analysis under § 25-19-105(f)(1). That subsection states: "No request to inspect, copy, or obtain copies of public records shall be denied on the ground that information exempt from disclosure is commingled with nonexempt information." So the custodian releases what's releasable, redacts what's not.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (required redactions)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-105(f)(1) (commingled records)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007)
• Young v. Rice, 308 Ark. 593 (1992)
• Stilley v. McBride, 332 Ark. 306 (1998)
• Thomas v. Hall, 2012 Ark. 66
• Davis v. Van Buren Sch. Dist., 2019 Ark. App. 157

Source

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

Original opinion text

Opinion No. 2021-025
April 29, 2021
John B. Little
c/o Arie Mitchell, Public Information Officer
Fort Smith Police Department
100 South 10th Street
Fort Smith, AR 72901

Dear Mr. Little:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your correspondence indicates that the Fort Smith Police Department ("FSPD") has received a request under the FOIA for copies of documents related to an internal investigation involving several officers. You state that you "wish that [your] name be redacted from the documents provided in the FOIA Request." I gather that the custodian of records has decided to provide some documents without redacting your name, and you have asked me to opine on whether the custodian's decision in that regard is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would 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 (including your name) from an otherwise releasable document. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed.

DISCUSSION

III. Application.

You want your name to be redacted in this instance, but I have no information regarding the custodian's classification of any particular records at issue concerning you. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

Because the FOIA request at hand seeks internal investigation records, I will reiterate that the exception for employee-evaluation records includes records generated by the employer in the course of such an investigation for the purpose of assessing or evaluating a police officer's performance or lack of performance. If the particular records at issue meet this definition, then it appears that the test for disclosure of your employee-evaluations has not been met because you state that you were not disciplined. As explained above, suspension or termination is a threshold requirement for the release of employee-evaluation records.

However, the question in this particular instance may be complicated somewhat by the fact that the investigation involved several officers. Some of the records at issue concerning you may be "mixed records," as described above. More specifically, records properly classified as your employee-evaluation records (which are exempt from disclosure because you were not disciplined) may also qualify as another employee's evaluation record. In that case, the custodian must determine whether the test for disclosure is met as to the other employee. If it is, then the record must be released, but your name should be redacted prior to release.

It is also possible that some of the investigation records concerning you do not qualify as employee-evaluation records, but sufficiently relate to you that they must be evaluated under the test for the release of "personnel records." As explained above, personnel records are disclosable under the FOIA except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The question of whether release of any information within any such records would constitute a "clearly unwarranted invasion of personal privacy," such that your name must be redacted, is a question of fact dependent upon the actual contents of the records, and as such must be determined in the first instance by the custodian of the records. I will note, however, that the reasons you have given for redacting your name are not, in and of themselves, legally sufficient reasons to redact your name from an otherwise releasable personnel record.

In sum, because I have not reviewed the actual records at issue, I am unable to definitively opine on whether the custodian's decision is consistent with the FOIA. I can only emphasize, based on the limited information before me and the fact that the records relate to an internal investigation, that the custodian should pay particular attention to properly classifying the documents in order to apply the appropriate disclosure test(s).

Sincerely,

LESLIE RUTLEDGE
Attorney General