Can a former Cabot police officer block release of records related to his decertification by claiming the requester wants to slander him?
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This page answers the general question as of 2021. Ezel answers yours: what it means for your facts, under current Arkansas law, with citations.
Plain-English summary
The Cabot city attorney's office got a FOIA request for "documents related to your decertification." The records pertain to Joshua Bayliss, a former employee. The custodian decided two records were responsive and informed Bayliss they would be released. Bayliss objected, saying the person who requested the records "is wanting to use information to slander [his] name" in an unrelated legal matter. He asked the AG whether release was consistent with FOIA.
The AG agreed with the custodian. Whether the records were classified as personnel records or evaluation records, the AG concluded they were not exempt and the custodian's decision to release was consistent with FOIA. The AG also rejected Bayliss's slander concern as a basis for denial. A FOIA requester's motive is generally irrelevant. The AG cited the office's previous opinions making clear that subjective motives of requesters cannot drive custodial denials.
For law enforcement officers, decertification is a serious matter. The records of why a certification was revoked or surrendered have a clear public interest dimension: communities have a right to know why an officer is no longer authorized to serve.
What this means for you
Former public employees
Once you stop working for a public agency, the agency still holds records about you. Those records remain subject to FOIA. Your status as a former employee does not extend your privacy interest beyond what current employees have.
Law enforcement officers
Decertification records are particularly likely to be released because of the strong public interest in knowing why an officer can no longer serve. If you are facing decertification or have been decertified, expect that the records of the proceeding will become public.
FOIA custodians
When a subject objects on the basis that the requester wants to misuse the information, the analysis does not change. The opinion is direct: subjective motive of the requester is not a permissible basis for denial. The custodian's job is to apply the objective test for disclosure.
Journalists and citizens
This opinion confirms that records of police decertification are public, even when the subject claims the requester has improper motives. The public interest in police accountability is what the FOIA balancing test recognizes.
Common questions
Can the requester really be planning to use the records for slander?
That's a separate legal question. Slander has its own elements (false statements published to a third party causing damage). Releasing public records is not itself slander. If the requester defames the subject after release, the subject can pursue a defamation claim against the requester. Pre-emptively denying the FOIA request is not the legal remedy.
What if the records are evaluation records?
The opinion didn't reach the classification question because the AG found the records released regardless of classification. If they were evaluation records, the four-prong test (suspension/termination, finality, basis, compelling interest) would have to be met. For decertification records, the "suspension or termination" prong is plainly met by definition.
Does it matter that the employee left?
No. The records are still public records held by a public entity. The FOIA analysis turns on the records and their content, not on whether the subject is still on payroll.
Can I block specific facts in the record?
Standard required redactions still apply: home address, DOB, SSN, medical information, banking, etc. But the substantive facts of why decertification happened are not the kind of "personal" information that gets redacted. Those are the public interest at the heart of the request.
Background and statutory framework
Personnel records under § 25-19-105(b)(12) are exempt only when release would be a "clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593 (1992), supplies the balancing test, with the scale tipped toward disclosure.
Evaluation records under § 25-19-105(c)(1) require all four prongs. The "level of discipline" prong is met when an employee was suspended or terminated. Decertification effectively meets this requirement, since it ends the officer's ability to serve. The remaining prongs (finality, basis, compelling interest) typically follow when decertification has been finalized.
The opinion's emphasis on requester motive irrelevance traces a long line of AG opinions: 2019-036, 2018-125, 2014-094, 2012-014, 2011-107. The Arkansas legislature has not created a "harassment" exemption to FOIA, and AG opinions have consistently rejected attempts to import one.
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)
- 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
Source
Original opinion text
Opinion No. 2021-050
June 30, 2021
Joshua Bayliss
c/o Cabot City Attorney's Office
101 North Second Street
Cabot, AR 72023
Dear Mr. Bayliss:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). You make your request as the subject of the requested records, 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 Cabot city attorney's office has received a request under the FOIA for "documents related to your decertification." The records custodian has notified you of the request and that the custodian has identified two records determined to be responsive to the request. Although you were not told of the custodian's determination as to how the custodian classified the records (your personnel or evaluation records), the custodian informed you that the records are subject to disclosure under the FOIA. You state that the person who requested the records "is wanting to use information to slander [your] name" in an unrelated legal matter, and you therefore seek my opinion.
RESPONSE
My duty under section 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. While it is the responsibility of the custodian, in the first instance, to properly classify the responsive records and then apply the applicable test for disclosure, it is nevertheless my opinion that, having reviewed the records at issue, the custodian's determination to release the records is consistent with the FOIA. This conclusion is consistent with this office's long-standing position regarding records similar to those at issue. Moreover, your objection to the records' release is not a legally cognizable reason to withhold non-exempt public records under the FOIA.
DISCUSSION
I have not been made aware of how the custodian has classified the records deemed responsive to the request. Nevertheless, having reviewed the records at issue, it is my opinion that, irrespective of whether the custodian classified them as your personnel records or your evaluation records, the records are not exempt from disclosure under the FOIA. Thus, the custodian's decision to release the records is consistent with the FOIA.
Furthermore, your concern as to how the requester intends to use the records is not a legally sufficient reason to withhold the records. As noted above, a FOIA requester's motive for making the request is generally irrelevant to whether a record must be released. The test under the FOIA for the release of non-exempt employee-related records asks whether, as an objective matter, the records in question shed light on governmental workings for the general public. A requester's subjective reasons for wanting such a record must not enter into the custodian's decisions.
Sincerely,
LESLIE RUTLEDGE
Attorney General
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