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, a Little Rock Police Department officer, was one of several candidates for promotion. Police Chief Keith Humphrey conducted recorded interviews with each candidate. Neufer filed a FOIA request for the recorded interviews and a long list of related records. The custodian classified Neufer's own interview as his personnel record (releasable to him) and the others' interviews as performance evaluations (exempt). Neufer challenged the classification.

The AG sided with Neufer's challenge, in part. The AG reasoned that promotional interview recordings are likely personnel records of all the candidates, not evaluation records of any of them. The opinion drew on Young v. Rice, where the Arkansas Supreme Court treated similar police promotional exam materials as personnel records. Promotional records assess potential, not past performance, so they don't fit the definition of "employee-evaluation or job performance records" (which require records detailing performance or lack of performance on the job).

But classification doesn't end the analysis. Personnel records still go through the Young v. Rice balancing test for "clearly unwarranted invasion of personal privacy." In Young itself, the Court found that releasing the candidates' assessment materials with names attached "could subject the candidates to embarrassment and could perhaps threaten their future employment." The Court ordered names redacted while still releasing the substance of the records. The AG suggested similar reasoning could apply here.

The AG was clear about what he could and could not say: he had not listened to the recordings, so he couldn't tell whether the privacy/public interest balance came out favoring redaction, partial release, or full release. That fact-intensive determination is for the custodian to make in the first instance.

What this means for you

FOIA custodians at police departments and other agencies

Promotional interviews are typically personnel records, not evaluation records. They look forward (assessing fitness for promotion), not backward (evaluating past performance). Don't apply the four-prong evaluation-records test reflexively when the records are about promotion candidates rather than disciplined or terminated employees.

After you classify them as personnel records, run the Young v. Rice two-step test. Step one asks whether release would invade a greater than de minimis privacy interest. For interview recordings that capture how candidates respond to questions on the spot, the answer is plausibly yes. Step two weighs that interest against the public's interest in the records. Releasing recordings with candidate identities may invade privacy more than the public interest can justify. Releasing them with identities redacted, while still showing the substance of the assessment, is the path Young v. Rice endorsed.

Your own employees are entitled to their own records under § 25-19-105(c)(2), regardless of FOIA exemptions. Neufer was entitled to his own interview recording.

Candidates for promotion

You have no FOIA exemption purely for being uncomfortable about the existence of records of your candidacy. But Young v. Rice gives you protection against release of records that could "subject [you] to embarrassment" or "threaten [your] future employment." If a custodian plans to release recordings without redacting names, you can ask the custodian to apply the Young v. Rice balancing test more carefully. If you're a candidate's representative, the opinion gives you authority to argue for redaction of identifying information.

Journalists and the public

You have a real interest in knowing how a department conducts promotional decisions. The opinion confirms that the records are not categorically exempt. The substance can be released. Personal identifiers may be redacted.

Police chiefs and HR

Document what classification you're using and why. The opinion's footnote 27 references previous AG opinions opining that promotional exam records are personnel records "because they did not assess past performance." Treating them as evaluation records to keep them blanket-exempt is contrary to the AG's reading.

Common questions

Why aren't promotional interviews evaluation records?

Because evaluation records require records that "detail the employee's performance or lack of performance on the job," per Thomas v. Hall. A promotional interview is forward-looking. It assesses fitness for the next role, not past performance in the current one. The AG's footnote 29 collects past opinions reaching the same conclusion.

Does the candidate's name have to come out before release?

That depends on the Young v. Rice balancing in each case. The Arkansas Supreme Court in Young itself ordered redaction of names because release could embarrass candidates and threaten future employment, while still preserving the substance for public inspection. The AG suggested similar reasoning could apply to recorded interviews but didn't prescribe the result. The custodian decides on the facts.

Can the candidate get their own recording?

Yes, under § 25-19-105(c)(2). Public employees and their designated representatives are entitled to their own personnel and evaluation records, even when those records are exempt from public release.

What if the recordings contain candid criticism of others, including supervisors?

That's still part of the personnel-records analysis. Off-hand mentions of others might be redacted, especially if they expose those individuals to embarrassment without serving the public interest. The Young v. Rice test is fact-specific.

Is the chief's process for selecting candidates inherently public?

The way the police chief structures and conducts promotion processes is a matter of public concern. The records that document how the process plays out are subject to FOIA. The opinion does not say the public has zero right to see these records; it says the proper test is the personnel-record balancing test, applied carefully.

Background and statutory framework

Personnel records under Ark. Code Ann. § 25-19-105(b)(12) are exempt only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." That's the lighter test of the two FOIA exemptions for employment-related records.

Evaluation records under § 25-19-105(c)(1) require all four prongs: suspension or termination, final administrative resolution, the records as basis for that discipline, and a compelling public interest. That's the much heavier test.

The Arkansas Supreme Court in Young v. Rice considered records from a police department's promotional "assessment center evaluation," including taped material. The Court held those were personnel records because they didn't assess past performance, then applied the balancing test. The Court found a "substantial privacy interest" because release could embarrass candidates or threaten future employment, and it ordered the names redacted while finding the substance of the records (the assessor reports) had to be released.

The AG opinion in 2021-0061 leans heavily on Young v. Rice for the classification and balancing approach. The opinion also notes (in footnote 29) that the Court's analysis of why the records weren't evaluation records was technically dictum, but the conclusion that promotional records are personnel records remains the operative law.

The AG also reiterated that under Thomas v. Hall, evaluation records can include records generated investigating allegations of misconduct that detail incidents giving rise to the allegations. That's not what promotional interviews are.

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)(2) (employee right to own records)
• 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

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

Original opinion text

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 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. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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 is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for "personnel records." This office has consistently opined that "personnel records" are all records other than "employee evaluation or job-performance records" that pertain to individual employees. If 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."

The Arkansas Supreme Court, in Young v. Rice, 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.

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records." 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.

If a document meets the above definition, the document cannot be released unless the employee was suspended or terminated, there has been a final administrative resolution, the records formed a basis for the discipline, and the public has a compelling interest in disclosure.

III. Application.

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 your recorded interview is your personnel record but that those of the other candidates are their evaluation records is mostly inconsistent with the FOIA. 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," were the candidates' personnel records. The Court then assessed the releasability of the records using the "clearly unwarranted invasion of personal privacy" standard and the balancing test described above.

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)(12)] requires that the public's 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.

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." 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.

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,

LESLIE RUTLEDGE
Attorney General