If a police officer's job application mentions criminal charges that were later sealed or expunged, can the city release that part of the personnel file under FOIA?

Plain-English summary

Officer Jamar Bennett of the Benton Police Department was the subject of a FOIA request for his personnel file. The records custodian planned to release the file with some standard redactions but did not redact references to two criminal charges Bennett had listed in his employment application, personal history statement, and during his background check. Both charges had ended in a nolle prosequi (a "we will not prosecute" disposition) and were later sealed or expunged.

Officer Bennett asked the AG whether the unredacted release was consistent with FOIA. The AG said no, probably not. The general rule under Young v. Rice is that records of a public servant's criminal history are disclosable, but there is a key exception: records that have been sealed or expunged. Once a record is sealed under the Arkansas Comprehensive Criminal Record Sealing Act (or its predecessor, the Uniform Expungement Act), the official custodians of those records are prohibited from disclosing the records' existence, except in narrow circumstances. The same logic, the AG concluded, gives Officer Bennett a heightened privacy interest in references to those sealed charges that appear in his personnel file. The custodian's failure to redact those references is likely inconsistent with FOIA's personnel-records balancing test.

The opinion did not direct outright withholding of the personnel file. The standard redactions the custodian had already made (personal contact info, DOB, SSN, etc.) were fine. The additional missing redactions are the references to the sealed criminal charges in Bennett's job application and personal history statement.

What this means for you

If you are a public employee whose personnel file mentions sealed or expunged charges

Based on this opinion, you have a strong basis to insist on redactions when those references appear in personnel records subject to FOIA release. The argument is twofold: (1) the underlying charges were sealed or expunged under the Arkansas record-sealing statutes, which generally bar custodians of those criminal records from disclosing them; (2) that prohibition supports a heightened privacy interest in references to those same charges sitting in your personnel file. The Young v. Rice balancing in your favor is much stronger when the law has already shielded the underlying records.

The mechanism is the standard custodian-opinion process under § 25-19-105(c)(3)(B)(i). When you learn of a request and the custodian's redaction plan, object specifically and ask the AG to opine whether the redaction is consistent with FOIA.

If you are a records custodian

When releasing a public employee's personnel file, look at the application materials and any reference checks for criminal-history disclosures. If the underlying charges have been sealed or expunged, the AG's view is that you should redact those references. The opinion treats it as an additional category of mandatory redaction, on top of the standard list (medical, personal contact info, DOB, SSN, marital status, etc.).

You don't need to verify the disposition of every charge ever discussed in the file, but if the subject (or their attorney) has flagged specific items as nolle-prossed-and-sealed, treat that as a redaction trigger. The AG's reasoning relies on the underlying record-sealing statutes' non-disclosure rule, so the redaction obligation tracks the existence of an effective sealing order.

If you are a journalist or FOIA requester

Public-employee criminal histories are generally disclosable, but only as far as the underlying records have not been sealed or expunged. If the personnel file contains a reference to a charge that was later sealed, expect that piece to be redacted. You can still get the rest of the personnel file, including non-sealed disciplinary history, training records, employment dates, and so on.

Common questions

Q: What's a nolle prosequi?
A: Latin for "does not wish to prosecute." It is a formal decision by the prosecutor not to pursue charges. After a nolle prosequi, an Arkansas defendant can usually have the records sealed under § 16-90-1410.

Q: Why does sealing matter for a personnel-file release?
A: Sealing prohibits the official custodian of the criminal record from disclosing it (§ 16-90-1416(a)). The AG's view is that this prohibition gives the subject a heightened privacy interest in references to those same charges appearing elsewhere, including a public-employer personnel file. Releasing those references would essentially route around the sealing.

Q: Are public-employee arrest records always disclosable?
A: Not always. The default under Young v. Rice balancing is that public-servant criminal history is disclosable. The exception, recognized in this opinion, is when the underlying records are sealed or expunged. Other cases may carry different privacy interests depending on the offense and the timeframe.

Q: Does this rule apply only to police officers?
A: No. The AG's reasoning applies to any public employee whose personnel file references sealed or expunged charges. Police officers come up often because hiring requires background checks and disclosure of any prior charges, but the rule is general.

Q: What if the employee never had the charge formally sealed?
A: Then the heightened privacy rationale doesn't apply, and standard Young v. Rice balancing controls. The disclosure-by-default for public-servant criminal history would likely apply.

Q: Who decides whether the charges in question are actually sealed?
A: The custodian, in the first instance. The opinion treats it as a question of fact. The subject usually has to provide documentation of the sealing order; the custodian then redacts based on that.

Background and statutory framework

This opinion ties two bodies of law together:

Arkansas FOIA framework: Personnel records under § 25-19-105(b)(12) are released under the Young v. Rice balancing test. Standard redactions apply for sensitive personal information. The general rule, per Op. Att'y Gen. 2014-123, 98-202, 97-177, 95-113, treats public-servant criminal history as releasable under FOIA balancing, except where the underlying records have been sealed or expunged.

Record-sealing framework: Arkansas's Comprehensive Criminal Record Sealing Act (Ark. Code Ann. § 16-90-1410 et seq.), which replaced the older Uniform Expungement Act in 2013 (2013 Ark. Acts No. 1460, § 7), allows defendants whose charges were nolle prossed (and other categories) to have the records sealed. The prohibition on the official custodian's disclosure is at § 16-90-1416(a) (and its predecessor § 16-90-903(a) under the Uniform Expungement Act).

The intersection: the FOIA personnel-records balancing test, applied to references to sealed charges, leans heavily toward redaction because the underlying records are themselves shielded by statute.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• Ark. Code Ann. § 16-90-1410 (Comprehensive Criminal Record Sealing Act)
• Ark. Code Ann. § 16-90-1416(a) (sealing's non-disclosure rule)
• Ark. Code Ann. § 16-90-906 (former Uniform Expungement Act, repealed 2013)
• 2013 Ark. Acts No. 1460, § 7 (replacement legislation)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Ops. Att'y Gen. 2014-123, 98-202, 97-177, 95-113 (public-servant criminal history disclosable except for sealed/expunged records)

Source

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

Original opinion text

Opinion No. 2021-083
October 8, 2021
Officer Jamar R. Bennett
c/o Benton Police Department
100 South East Street
Benton, AR 72015
Dear Officer Bennett:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the subject of the records, is based
on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). 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 Benton has received a request under
the FOIA for records in your personnel file. You have attached several documents
that have been identified by the custodian of records as responsive to the instant
FOIA request. The custodian has redacted certain personal information from these
records, which you do not question. However, these redactions do not include
"disclosures made on [your] employment application and personal history statement
and during the background check pertaining to charges that were nolle prossed and
expunged/sealed ...." You object to the release of this particular information and
ask whether the custodian's decision to release the records without these additional
redactions is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and
standards discussed below, that the custodian's decision to release (as redacted) the
records qualifying as personnel records may not be entirely consistent with the
FOIA. Additional redactions may need to be made regarding information relating
to charges that were not prosecuted and subsequently sealed or expunged, given
your heightened privacy interest in that information.

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 Benton
("City"), 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, 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. For purposes of the FOIA, these items can usually be
divided into two mutually exclusive groups: "personnel records" or "employee
evaluation or job performance records." 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. Although I have no
information regarding how the custodian has classified these records, it appears that
the records at issue are personnel records. I will, therefore, limit my discussion to
records of that type.

The FOIA does not define "personnel records," but this office has consistently
opined that the term refers to all records other than "employee evaluation or job-
performance records" that pertain to individual employees. 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
it is open to public inspection and copying except "to the extent that disclosure
would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "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.

[Two-step Young v. Rice balancing as discussed in companion opinions.]

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. [Standard
redaction list as in companion opinions, including personal contact information,
employee personnel number, marital status and dependents, dates of birth, Social
Security numbers, medical information, undercover law enforcement officer
identifying information, driver's license, insurance, tax/withholding, payroll
deductions, and banking information.]

III. Application.

This office has consistently opined that under the balancing test set forth in Young,
records reflecting a public servant's criminal history are generally subject to
disclosure under the FOIA unless the individual's criminal records have been sealed
or expunged. According to your correspondence and the information contained in
the records themselves, both of the charges in question ended with an order of nolle
prosequi being entered, after which the records and documents relating to those
charges were expunged or sealed pursuant to Ark. Code Ann. § 25-19-906. The
custodian of those records is prohibited from disclosing the records' existence or
releasing them except in a limited number of circumstances. It is my opinion,
therefore, that you have a heightened privacy interest in the information in your
personnel file that relates to those sealed or expunged records, and the custodian's
decision not to redact that information prior to releasing the records is likely
inconsistent with the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General

[Footnotes:
19 See, e.g., Ops. Att'y Gen. 2014-123, 98-202, 97-177, 95-113.
20 "Nolle prosequi" is Latin for "does not wish to prosecute." BLACK'S LAW DICTIONARY 1259 (11th ed. 2019). "Nolle pros" or to have a charge "nolle prossed" are common colloquial derivatives.
21 Ark. Code Ann. § 16-90-906 was part of the Uniform Expungement Act. That act was repealed and replaced by the Comprehensive Criminal Record Sealing Act (Sealing Act) in 2013. See 2013 Ark. Acts No. 1460, § 7. The current statute, Ark. Code Ann. § 16-90-1410, similarly allows the records relating to a criminal case to be sealed when the charges are nolle prossed.
22 See Ark. Code Ann. § 16-90-1416(a) (Supp. 2021) (Ark. Code Ann. § 16-90-903(a) governed the release of sealed records under the Uniform Expungement Act).]