Are recorded promotional interviews of police candidates 'employee evaluation records' (rarely releasable) or 'personnel records' (released after a privacy balancing test) under Arkansas FOIA?

Plain-English summary

Lieutenant Jordan Neufer asked for recorded interviews between Little Rock Police Chief Keith Humphries and candidates for promotion. The custodian classified Neufer's own interview as his personnel record and the other candidates' interviews as evaluation records, then withheld the latter. Neufer challenged that classification.

The AG had not listened to the recordings and could not decide whether any particular record or information had to be released or redacted. Based on the description supplied, she thought a court would likely treat all the interviews as the candidates' personnel records. She said the custodian's different classifications were "mostly inconsistent with the FOIA." The custodian still had to apply the personnel-records privacy balance to determine whether any records should be withheld.

The AG discussed Young v. Rice, which involved police promotional assessment materials, including tapes. There, the Arkansas Supreme Court said release of live assessment records with candidate names unredacted would cause a clearly unwarranted invasion of privacy. Footnote 33 says the Court regarded the public interest as served by release of assessor report forms even though the candidates' identities remained unknown. This opinion did not prescribe redactions or release of the Neufer interview recordings.

What this means for you

If you are a FOIA custodian

Classify each record by its content. Based on the description in this request, the AG thought all the promotional interviews were likely personnel records. If that classification is correct, apply the personnel-records test for a clearly unwarranted invasion of personal privacy. The AG could not do that factual balancing without the recordings.

If you are a candidate for promotion

The Young decision described in the opinion recognizes a privacy interest where disclosure of live assessment records with names attached could embarrass candidates or threaten future employment. Whether a particular interview recording may be withheld or redacted remains for the custodian to decide under the FOIA test.

If you requested records

The AG questioned the custodian's classification of the other candidates' recordings as evaluation records. She did not order release of the recordings or any portion of them. The opinion notes that a person may obtain their own personnel or evaluation record under § 25-19-105(c)(2), even if it is exempt from public disclosure.

Common questions

Did the AG decide whether the other candidates' recordings had to be released? No. She had not reviewed or listened to them and left the privacy balance to the custodian.

Why did the AG question the evaluation-record classification? She compared the described interviews to the promotional assessment materials treated as personnel records in Young v. Rice, 308 Ark. 593 (1992). The opinion’s footnote 29 also cites an earlier AG opinion treating promotional exam records as personnel records because they did not assess past performance.

Did Young require these recordings to be released without names? The opinion says Young found unredacted names in live assessment records would cause a clearly unwarranted privacy invasion. Its footnote 33 refers to assessor report forms released without identifying candidates. The AG did not decide the disposition of Neufer's requested recordings.

Background and statutory framework

Personnel records under Ark. Code Ann. § 25-19-105(b)(12) are open except to the extent disclosure would be a clearly unwarranted invasion of personal privacy. Evaluation records have a different disclosure test under § 25-19-105(c)(1), including suspension or termination, final administrative resolution, a basis for that decision, and compelling public interest. The AG thought the records described here were likely personnel records, but said classification and disclosure require review of the actual recordings and a factual assessment by the custodian.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exception)
• Ark. Code Ann. § 25-19-105(c)(2) (access to one's own records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Young v. Rice, 308 Ark. 593 (1992) (promotional assessment records and privacy balance)
• Thomas v. Hall, 2012 Ark. 66 (evaluation-record definition)

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTOR N EY GENERAL
LES LI E RUTLEDGE

Opinion No. 2021-061

July 26, 2021

Lieutenant Jordan A. Neufer
c/o Little Rock Police Department
700 West Markham Street
Little Rock, AR 72201

Dear Lieutenant Neufer:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records requester, 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 City of Little Rock has received your request for numerous records under the FOIA. Importantly for the purposes of this opinion, you requested "taped interviews" between Police Chief Keith Humphries and a number of candidates, including yourself, for promotion. The custodian determined that the requested recorded interviews, with the exception of your own, are exempt from release as "performance evaluations" of the individual candidates being interviewed (yours was classified as your "personnel record"). You ask whether the custodian's decision to withhold these records is consistent with the FOIA.

RESPONSE

Because I do not have before me any records that would be responsive to your FOIA request, I cannot opine about whether any specific record must be disclosed or whether any specific piece of information from an otherwise releasable record must be redacted. However, based on the information I have been provided, it appears that the custodian's classification of the recorded interviews is mostly inconsistent with the FOIA. It seems more likely that the recorded interviews are instead the

323 CE NTER STREET. SU ITE 200 · LITTLE ROC K. ARKAN SAS 7220 1 TELEPHONE (50 I ) 682-2007 · FAX (501) 682-8084 ARKAN SAS AG .GOV

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personnel records of the individual candidates. In light thereof, I cannot opine whether the standard for withholding personnel records has been met. That is a factual inquiry that the custodian must make in the first instance. I have set out below the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed or withheld from disclosure.

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 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 are presumed to be public records,2 although that presumption is rebuttable. 3 Accordingly, given that I have no information to suggest that the presumption can be rebutted in this instance, the analysis proceeds to the third element, that 1s, whether any exceptions preclude disclosure.

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 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).

3
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).

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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 divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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.
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" are all records other than "employee evaluation or job- performance records" that pertain to individual employees. 7 Whether a particular record meets this definition is a question of fact that can only be definitively determined by reviewing the record itself. If a document meets this definition, then

4 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; ce1iificates 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).

5
Ark. Code Ann. § 25-19-105(b )( 12): "It is the specific intent of this section that the fol lowing 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." 6 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."

7
See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

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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 FOIA does not define the phrase "clearly unwarranted invasion of 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 steps. 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 minim is, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give 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 disclosure. 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

8
Ark. Code Ann.§ 25-19-105(b)(l2).

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).

14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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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 government for the general public. 17 This ordinarily precludes the custodian from considering any subjective motives or the identity 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 items that must be redacted include:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann. § 25-19-105(b )(13));

• Employee personnel number (Ops. Att'y Gen. 2014-094, 2007-070);
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'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);

16
Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107.

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 cou1ts 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.

It should also be noted that the Legislature has not seen fit to include a generalized "harassment" exemption to the release of otherwise disclosable employee-related records. Op. Att'y Gen. 2019- 047 (and opinions cited therein).

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• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194 ).
  b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 19 But the Arkansas Supreme Court has adopted this office's view that the term refers to 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. 20 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 21

Additionally, some employee-related records constitute ''mixed records,'' i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record. 22

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

19
I will refer to this group of records as "employee-evaluation records."

20
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.

21
Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

22
See Op. Att'y Gen. 2020-037 (and opinions cited therein).

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4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 23

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: (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 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" requirement. 24

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, 25 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 m the employee/employer relationship. 26

III. Application.

23
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

24
Watkins, et al., at 238-39 (footnotes omitted).

25
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").

26
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.

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I have not reviewed or listened to the actual records at issue; thus, I am unable to definitively opine as to the custodian's decisions with respect to the recorded interviews. But it appears, based on the correspondence sent to my office, that the custodian's determination that the your recorded interview is your personnel record but that those of the other candidates are their evaluation records is mostly incon- sistent with the FOIA. 27 I believe a reviewing court would find that they all are the personnel records of the interviewees. Again, not having listened to the recordings, I cannot say whether they meet the standard the FOIA establishes for withholding personnel records.

The Young v. Rice case has some similarities that may be instructive here. In Young, the Supreme Court considered whether certain police promotional exam records were subject to disclosure or were exempt. The Court determined that the records at issue-primarily records, including taped material, from the police department's live-action "assessment center evaluation" 28-were the candidates' personnel records. 29 The Court then assessed the releasability of the records using the "clearly unwarranted invasion of personal privacy" standard and the balancing test described above. 30

In considering the clearly unwarranted invasion standard, the Court observed:

The fact that section [25-19-105(b )( 12)] exempts disclosure of personnel records only when a clearly unwarranted personal privacy invasion would result, indicates that certain "warranted" privacy invasions will be tolerated. Thus, section [25-19-105(b)(l2)] requires that the public's

27
Irrespective of how your recorded interview was classified, however, such classification would not affect the decision to release your own record to you. See Ark. Code Ann. § 25-19-105( c )(2) (Supp. 2019) ("Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained .... ").

28
Young, supra, 308 Ark. at 594, 826 S.W.2d at 253.

29
Id. at 596-97, 826 S.W.2d at 254. Accord Op. Att'y Gen. 96-256 (opining that the promotional exam records were personnel records and not employee-evaluation records "because they did not assess past performance").

Also, it has been pointed out by this office before that the Court's reasoning in Young as to why the records were not evaluation records-that is, because there was no suspension or termination involved-was obiter dictum and quite irrelevant to the definition of evaluation records. See Watkins, et al., at 226, n.542.

30
Supra text accompanying nn.10-15.

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right to knowledge of the records be weighed against an individual's right to privacy. .. . Because section [25-19-105(b )(12)] allows warranted invasions of privacy, it follows that when the public's interest is substantial, it will usually outweigh any individual privacy interests and disclosure will be favored. 31

The Court noted the very real possibility that the release of the live assessment records "could subject the candidates to embarrassment and could perhaps threaten their future employment." 32 Accordingly, the Court said that the release of those records, with the individual candidates' names unredacted, would result in a clearly unwarranted invasion of the candidates' personal privacy. 33

As stated above, whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. This office cannot act as a finder of fact in the issuance of opinions. Thus, the custodian will have to address in the first instance whether the standard for withholding personnel records has been met, applying the balancing test described herein.

Sincerely,

..cC~~~~~;~- L /./?17
LESLIE RUTLEDGE
Attorney General

31
Young, 308 Ark. at 598, 826 S.W.2d at 255.

32 Id.

33
The Com1 said it reached the conclusion it did "in part because, although the public's interest is also a substantial interest, it is served by the release of the assessor report forms, even though the candidates' identities remain unknown." Id.

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