When a former police officer's personnel file is requested under FOIA, can the city release the suspension review along with redacted records, and which items must stay private?

Plain-English summary

The Brookland Police Department got a FOIA request for a former officer's personnel file, including correspondence between the officer and the department and any official letters about his status. Chief Jon Moore decided to release the records with redactions. The officer objected. Chief Moore asked the AG to review the redacted release.

Attorney General Leslie Rutledge said the release was mostly consistent with FOIA, but with several corrections.

What was correctly released: the "Employee Conduct Review" document. It explained the suspension, so it was an employee-evaluation record under § 25-19-105(c)(1). The four-part release test was met (suspended/terminated; finality; basis; compelling interest, given the public-safety stakes for police).

What needed to stay back:

• Five Facebook posts. Their release would be a clearly unwarranted invasion of personal privacy under the personnel-records balancing test. The Employee Conduct Review already describes their general nature, so the public's interest in the underlying conduct was sufficiently met without releasing the posts themselves.
• Three Performance Evaluations / Performance Reviews that did not appear to be the basis for the suspension. Under the four-part evaluation-records test, if those reviews did not form the basis for the discipline, they cannot be released.

What needed extra redaction before release:

• The "Marital" section of the Personal History Statement (marital status and family-life information).
• Height and weight on the Personal History Statement, unless those values are a condition of initial or continuing employment.
• Personal financial items (numbers 25 and 28) on the Personal History Statement.
• Employee ID number on Performance Reviews, but only if the ID provides access to computerized data (then it falls under the § 25-19-105(b)(11) personal-identification-number exemption).

What this means for you

If you are a police chief, sheriff, or municipal HR director

This opinion is a useful operational checklist for redacting an officer's personnel file before release.

1. Pull every document and classify it: personnel record, employee-evaluation record, or both ("mixed record").
2. For evaluation records, run the four-part test under § 25-19-105(c)(1). If a particular evaluation did not form the basis for the suspension or termination, you cannot release it.
3. For personnel records, run the Young v. Rice balancing test. The thumb is on the scale for disclosure, but high-privacy items like off-duty social-media posts can survive review even when the broader file is released.
4. Apply the standard redaction list every time: personal contact info, employee personnel number, marital status and dependents, DOB, SSN, medical info, undercover identifying info, driver's license, insurance coverage, tax/withholding, payroll deductions, banking info. This opinion adds height/weight (unless tied to a job condition), and Personal History Statement marital and personal financial sections.

If you are an Arkansas police officer (or other safety-sensitive public employee)

Your suspension or termination notice that explains the reason will usually be released after final resolution, especially in your role. But the AG was willing to keep your off-duty Facebook posts out of the released file once their general subject matter was already covered in the formal Employee Conduct Review. That distinction matters: the public interest is in the agency's official action and basis, not in the underlying social-media artifacts when they have been adequately summarized in evaluative records.

Past performance reviews that had nothing to do with your suspension are also protected. The four-part test in § 25-19-105(c)(1) is exclusionary: only the records that formed the basis come out.

If you are a FOIA requester or journalist

You can ordinarily get the document that explains the suspension reasons (here, the "Employee Conduct Review"). You will probably not get unrelated performance reviews and you should not expect off-duty social-media posts from the personnel file. Those latter items have been adequately addressed in the evaluation document the city is releasing.

The release of a disciplinary evaluation record depends on all four statutory conditions, including whether the record formed a basis for the discipline and whether there is a compelling public interest.

Common questions

Q: Why are Facebook posts in a personnel file treated differently than the Employee Conduct Review? A: The Conduct Review is created by the employer to evaluate the employee, so it is an evaluation record under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The Facebook posts themselves are personnel records; their disclosure runs through the Young v. Rice balancing test. The AG decided that since the Conduct Review already describes the general nature of the posts, public interest in the underlying conduct is satisfied, and the personal-privacy interest in the actual posts wins.

Q: Why withhold past performance reviews?
A: Because § 25-19-105(c)(1) only allows release of evaluation records that "form a basis for the decision to suspend or terminate the employee." If a 2018 performance review had nothing to do with the 2021 suspension, that 2018 review remains exempt no matter how related it might seem.

Q: Why is height and weight redacted unless a job condition? A: Op. Att'y Gen. 2015-008 (cited here) treats officer height and weight as personnel data with a meaningful privacy interest unless the agency has a height/weight requirement that ties those numbers to fitness for duty.

Q: Is an employee ID always redactable?
A: The opinion's general redaction list includes an "Employee personnel number." For the specific ID number on the Performance Reviews, the AG directed redaction only if it aided access to computerized data. The opinion does not decide whether another employee number used solely for HR records could be released.

Q: What is a "mixed record"?
A: A record that combines (a) more than one person's evaluation, (b) at least one person's evaluation and at least one other person's personnel record, or (c) more than one person's personnel record. Mixed records require multiple-track analysis: each subject's content is evaluated under the rule that fits.

Background and statutory framework

Same FOIA framework as the related opinions in this series:

• Personnel records under § 25-19-105(b)(12): exempt to the extent disclosure is a clearly unwarranted invasion of personal privacy. The test uses the two-step balance described in Young v. Rice.
• Employee evaluation records under § 25-19-105(c)(1): exempt unless all four parts of the test are met (level of discipline, finality, basis, compelling public interest).

Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines an evaluation record as one (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details performance or lack of performance.

Specific items discussed in the opinion:

• § 25-19-105(b)(10): undercover law enforcement officer identifying information.
• § 25-19-105(b)(11): personal identification numbers used for computer-security functions.
• § 25-19-105(b)(13): personal contact information of public employees (personal phone, email, home address).

The opinion's general redaction list also includes employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical information, driver's license number, insurance coverage, tax and withholding information, payroll deductions, and banking information. Its record-specific directions address height and weight subject to the employment-condition exception, Personal History Statement sections, and the ID number on the Performance Reviews if it aids access to computerized data.

The custodian-opinion procedure is at § 25-19-105(c)(3)(B)(i).

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(11), (b)(12), (b)(13) (exemptions)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• 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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2015-003 (marital information redaction)
• Op. Att'y Gen. 2015-008 (officer height and weight)
• Ops. Att'y Gen. 2005-113, 2001-080, 90-295 (personal financial information)
• Op. Att'y Gen. 2019-066 (employee ID redaction)
• Op. Att'y Gen. 2020-001 (records of suspension reasons as evaluation records)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GEN ERAL
LESLIE RUTLEDGE

Opinion No. 2021-090

October 26, 2021

Jon Moore, Chief of Police
Brookland Police Department
409 Holman Street
P.O. Box 7
Brookland, AR 72417

Dear Chief Moore:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of the requested 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 Brookland Police Department ("Department") has received a request under the FOIA for the personnel file of a former employee of the Department, to include copies of correspondence between the former employee and the Department as well as official letters regarding the former employee's status with the Department. You have attached several documents that you believe are responsive to the request and that you intend to release with redactions. The subject of the records objects to this release. You ask whether your decision to release the records as redacted is consistent with the FOIA.

RESPONSE

The custodian has determined that the records at issue are subject to release after making certain redactions. Having reviewed the records , it is my opinion, based on the definitions and standards discussed below, that the custodian's decision to release them as redacted is mostly, but not entirely, consistent with the FOIA. I have identified several personnel records that do not meet the test for release, several

323 CENTER SrnEET. SU ITE 200 · LI TTLE ROCK. ARKAN SAS 7220 1 TELE PH ONE (50 1) 682-2007 ·FAX (50 1) 682-8084 ARKAN SASAG.GOV

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additional pieces of information that need to be redacted, and several records that should not be released if they did not form a basis for the employee's suspension.

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 Department, 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, 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. 4 For purposes of the FOIA, these items can usually be

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. 2021 ).

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).

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;

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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 it is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. " 8

requests for leave-without-pay; ce11ificates 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 following 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 ifthere 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.
8
Ark. Code Ann. § 25-19-1 OS(b )( 12).

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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 minim is 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 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

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.

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

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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)(l0));
• Driver's license number and photocopy of driver's license (Ops. Att'y Gen.
  2017-125, 2013-090);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-3 85);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194 ).

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 coutis 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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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 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:

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. 2020-03 7 (and opinions cited therein).

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

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[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: ( 1) 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 in the employee/employer relationship. 26

III. Application.

Having reviewed the records, it is my opinion that with some exceptions they are subject to release, with redactions, under the test for the disclosure of personnel records discussed above. The record entitled "Employee Conduct Review"-which states the basis for the employee's suspension-is an employee-evaluation record. 27 In my opinion, this record meets the test for release applicable to that type of record.

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.
27
This office has consistently opined that records like this, which recount the reasons for an employee's suspension (or termination), constitute employee-evaluation records. E.g., Op. Att'y Gen. No. 2020-00 I (and opinions cited therein).

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However, the five Facebook posts must be evaluated under the test for personnel records. I believe the balance tips in favor of nondisclosure of these posts, given their content. While there may be some detectable public interest in the content, I believe this interest is satisfied by the release of the "Employee Conduct Review," which describes the general nature of the posts. It is my opinion that the custodian's decision to release the posts themselves is inconsistent with the FOIA.

Additionally, the three records entitled "Performance Evaluation" and "Perfor- mance Review" qualify as employee-evaluations. And it seems unlikely, from the face of these records, that they formed the basis for the employee's suspension. If that is in fact the case, then the test for release is not met and the custodian's decision to release these "Performance" records is inconsistent with the FOIA.

Moreover, it is my opinion that the following additional redactions must be made from the records prior to their release:

• The entire section on the "Personal History Statement" entitled "Marital" because it reveals information about marital status and family life 28 ;
• Height and weight information on the Personal History Statement, unless that information is a condition of initial or continuing employment29 ;
• Items 25 and 28 on the Personal History Statement, reflecting personal financial information 30 ;
• Employee ID number on Performance Reviews, but only if they aid in providing access to computerized data. 31

28
See Op. Att'y Gen. 2015-003 (and opinions cited therein).

29
This office has previously opined that the question whether a police officer's height and weight are properly disclosed under the FOIA turns on whether a specific height/weight (or range of heights/weights) is a condition of initial or continuing employment. See Op. Att'y Gen. 2015-008.

30
See Ops. Att'y Gen. 2005-113, 2001-080, 90-295.

31 See Op. Att'y Gen. 2019-066. Records containing "personal identification numbers" used for computer-security functions are specifically exempt from disclosure under Ark. Code Ann. § 25- l 9-l 05(b )( l l ).

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In sum, it is my opinion that the custodian's decision is not entirely consistent with the FOIA. The additional redactions listed above must be made prior to the records' release. And the exempt records identified above must be removed prior to releasing the remaining records, as redacted consistent with this opinion.

Sincerely,

. : : - -·-· ·- - -:. : ;.")~ //~7
L.
LESLIE RUTLEDGE
Attorney General

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