Can a city withhold all the records from a police promotion file by classifying them as job-performance records, or do parts of that file have to be released under FOIA?

Plain-English summary

Someone asked Sherwood for the complete file of records about Sherwood Police Department's lieutenant and sergeant promotions in 2020 and 2021: letters of recommendation, memos, promotion decisions, and supporting documentation. The city's view was that the entire file was made up of job-performance records of the promotion-eligible officers, and since none of those officers had been suspended or terminated, the four-part test in § 25-19-105(c)(1) was not met and nothing had to come out.

Attorney General Leslie Rutledge said the city was right about the recommendation letters but wrong about almost everything else.

The recommendation letters were properly withheld. They were created by the police chief at the behest of the employer to evaluate the candidates' job performance for promotion purposes, which fits the Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 definition of job-performance records. Because none of the candidates had been suspended or terminated, the four-part test wasn't even at the first prong, so the letters could not be released.

But the resumes, physical fitness test records, and the chief's routine memos asking for recommendations were a different matter. Resumes are personnel records, and the AG has long said employee resumes are usually disclosable. Physical fitness tests function like psychological evaluations and drug tests (also personnel records) because they are pass/fail screens for fitness for duty. Routine memos that just request recommendations or resumes from supervising officers are personnel records of the named candidates. All of that must be released after standard redactions for personal contact info, SSN, DOB, and similar items.

What this means for you

If you are a police chief, sheriff, or HR director processing promotion files

Don't blanket-tag the entire promotion file as "job-performance records." That category is narrower than it first appears. To qualify under Thomas v. Hall, the document has to be (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance. That captures evaluative content like letters of recommendation, oral board scoresheets, and supervisor evaluations. It does not capture supporting documents that are not themselves evaluative, even when they were collected as part of the same promotion process.

The practical workflow:

1. Sort the promotion file by document type.
2. Letters of recommendation and other evaluative content: job-performance records. If no one was suspended or terminated, withhold.
3. Resumes: personnel records. Almost always release, with redactions.
4. Physical fitness records: personnel records (per this opinion's analogy to drug-test and psych-eval records). Release with redactions.
5. Process memos (chief asking for recommendations, supervisors requesting resumes): personnel records of the candidates named in them. Release with redactions.

If you are a candidate for a public-sector promotion

The letters supervisors write evaluating your performance are protected as long as you have not been suspended or terminated. But your resume, your physical fitness scores, and the procedural correspondence around your promotion are largely subject to release. If a department wants to keep something specific to you private (medical information, dependent details, contact information), the standard redaction list applies, but the document itself usually comes out.

If you are a journalist looking into a department's promotion process

You can usually get the resumes of the promoted candidates, the fitness scores, and the procedural memos. You usually cannot get the recommendation letters. That is enough to map who was actually considered, what their qualifications were, and how the process unfolded, even if you cannot read each supervisor's specific assessment.

Common questions

Q: Why is a recommendation letter different from a resume? A: A recommendation letter is created at the employer's request specifically to evaluate the candidate. A resume is something the candidate authored about their own qualifications. The first one fits the Thomas v. Hall definition of a job-performance record; the second one is a personnel record.

Q: Why are physical fitness records personnel records, not job-performance records? A: They function like drug tests and psychological evaluations: they are pass/fail health-and-fitness screens administered to ensure the officer is fit for duty. The AG cited Op. Att'y Gen. 2009-156 for the parallel to drug and psych testing, and treated them as personnel records.

Q: Could withholding the recommendations ever be wrong? A: Only if the candidate had been suspended or terminated and the recommendation became part of the basis for that discipline. Then the four-part test would kick in. As long as no one was disciplined, the recommendations stay protected.

Q: Can the requester appeal this AG decision?
A: An AG opinion under § 25-19-105(c)(3)(B)(i) is advisory. It does not bind a court. A requester denied access to records the AG said could be withheld can still bring a FOIA lawsuit; same for a custodian who disagrees with the AG's release direction.

Q: What about applications submitted by candidates not yet promoted? A: The AG cited Ops. Att'y Gen. 99-002 and 88-133 for the proposition that promotion applications are analogous to employment applications, which are personnel records. So those would be released too, with redactions.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., recognizes two types of employee records that get special treatment:

• Personnel records under § 25-19-105(b)(12): exempt only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Default is release; the Young v. Rice balancing test governs.
• Employee evaluation or job performance records under § 25-19-105(c)(1): exempt unless all four parts of the release test are met (suspension or termination; finality; basis; compelling public interest). Default is no release.

The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defined the second category narrowly: records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail performance or lack of performance. Documents in a promotion file that do not meet all three prongs fall back into the personnel-records category and are governed by Young v. Rice.

The standard redaction list applies to all personnel records released: personal contact information (§ 25-19-105(b)(13)), employee personnel number (when used for computer access), marital status, dates of birth, Social Security numbers, medical information, undercover officer identifying info (§ 25-19-105(b)(10)), driver's license, insurance, tax info, payroll deductions, and banking info.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• 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. 2016-043 (resumes as personnel records)
• Ops. Att'y Gen. 99-002, 88-133 (promotion applications analogous to employment applications)
• Op. Att'y Gen. 2009-156 (physical fitness tests like drug/psych tests)
• Op. Att'y Gen. 2020-037 (mixed records)

Source

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

Original opinion text

Opinion No. 2021-091
October 26, 2021
Stephen R. Cobb
Sherwood City Attorney
7217 Park Meadows
Sherwood, AR 72120
Dear Mr. Cobb:
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 custodian of 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 Sherwood ("City") has received a request under the FOIA for "any and all documents, including but not limited to, all letters of recommendation, memos, promotion decisions, and any other supporting documentation that pertain to any candidate for or recipient of promotion to Lieutenant or Sergeant with the Sherwood Police Department in the years 2020 and 2021 to date." You have attached several documents that the City believes should be withheld because it has been determined that these records are job performance records that did not result in a suspension or termination. You ask whether the decision to withhold the instant records is consistent with the FOIA.

RESPONSE

Having reviewed the records, it is my opinion, based on the definitions and standards discussed below, that your decision to withhold the records is mostly, but not entirely, consistent with the FOIA. There are a number of records that were, in my opinion, incorrectly classified as exempt job-performance records that are properly classified as non-exempt personnel records and should be released after all necessary redactions have been made to those records.

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, 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.

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. 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.

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. If the privacy interest is merely de minimis, 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. 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. 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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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. 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. 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.

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)(10));
• 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, 2003-385);
• 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. 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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

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).

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: (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.

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, 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.

III. Application.

Having reviewed the records, it is my opinion that your decision to classify the records as the promotion applicants' job-performance records that should not be released is mostly consistent with the FOIA. However, a number of the records, based on the face of them, are properly classified as personnel records and thus should be released once all necessary redactions to the records have been made.

• Recommendation records

The majority of the records submitted for my review appear to be the letters of recommendation as listed in your request for my opinion. I concur with your decision to classify these records as the job-performance records of the employees recommended for promotion. Based on certain memos found in the records, these recommendations were requested by the police chief of other members of the police force to "assist in the decision to promote."

This qualifies these records as job-performance records based on the Thomas v. Hall definition above: The records (1) were created ... at the behest of the employer (2) to evaluate the employees (3) that detail the employees' performance on the job.

As job-performance records, they cannot be released as they do not meet even the first prong of the four-part test set out above, to wit, the employees were not suspended or terminated. Accordingly, the decision to withhold these records, in my opinion, is consistent with the FOIA.

• Various personnel records

The decision to withhold the remainder of the records, in my opinion, is likely inconsistent with the FOIA. That is because these records, based on the face of the records, appear to be personnel records of the particular employees, the disclosure of which would not constitute a clearly unwarranted invasion of personal privacy. These records include resumes, scores on physical fitness tests, and other memoranda that reference various employees who are being considered for promotion.

• Resumes

In the records provided for my review, you have included the resumes of the promotion-eligible employees, which appears to be a part of the decision-making process. It has long been the opinion of this office that an employee's resume is a personnel record and that its disclosure rarely rises to the level of a clearly unwarranted invasion of personnel privacy. Moreover, this office has maintained that applications for promotion are analogous to applications for employment for purposes of the FOIA, and are therefore subject to disclosure.

Finally, I must point out that these resumes must be scrutinized prior to their release to identify all exempt information under the FOIA as listed above. Again, this exempt information includes the personal contact information of public employees, including their personal telephone numbers, personal e-mail addresses, and home addresses; Social Security numbers; and dates of birth. All such information must be redacted from these documents prior to their release.

• Physical fitness records

In my opinion, the physical fitness records are best characterized as personnel records. The physical fitness tests are very similar to psychological evaluations and drug tests administered to police officers. Given that this office has characterized both of the latter two tests as personnel records, and physical-fitness tests are similar, the latter are also best characterized as personnel records. Accordingly, I believe your decision to characterize the physical fitness records as job-performance records is inconsistent with the FOIA.

• Other memoranda

Finally, various memoranda found within the records that reference various employees who are being considered for promotion are properly considered the personnel records of the employees being considered. These records include memos from the police chief to sergeants, lieutenants, and captains requesting their recommendations for promotions and memos from supervising officers to promotion-eligible employees seeking their resumes. These memos, in my opinion, do not meet the above-definition of a job-performance record. Accordingly, and as defined above, they are the "personnel records" of the named employees as they are records that are not job-performance records that pertain to these individual employees. And from the face of these records, there does not appear to be any exempt information that must be redacted prior to disclosure. However, this is a fact question that must be addressed in the first instance by the custodian.

In sum, it is my opinion that the custodian's decisions with respect to the records is mostly, but not entirely, consistent with the FOIA. All of the letters of recommendation for promotion are the job-performance records of the employees being recommended, which do not meet the four-part test for disclosure, and thus are properly withheld. However, the other records discussed above should be classified as the personnel records of the employees to whom the records pertain and should be disclosed after all necessary redactions have been made.

Sincerely,
LESLIE RUTLEDGE
Attorney General