Does an ongoing police investigation let Little Rock withhold all FOIA records relating to the police chief involved in an officer-involved shooting?

Plain-English summary

The City of Little Rock received multiple FOIA requests for records relating to police Chief Keith Humphrey in connection with an officer-involved shooting that was under criminal investigation by the Arkansas State Police and the Pulaski County Prosecuting Attorney's Office. City Attorney Thomas Carpenter filed a complex submission with the Attorney General asking whether the city's three-bucket plan was consistent with the FOIA: (1) some records should be withheld in full or part under the "undisclosed law enforcement investigation" exception (§ 25-19-105(b)(6)) because the investigation was ongoing, (2) some records should be withheld as employee-evaluation records (§ 25-19-105(c)(1)) because no disciplinary action had been finalized, and (3) some records should be released. He also relayed the prosecutor's ethical request that no records be released to protect the integrity of the investigation.

Attorney General Leslie Rutledge gave a layered answer.

First, on jurisdiction. The AG's statutory review authority under § 25-19-105(c)(3)(B) is limited to personnel and employee-evaluation records. Decisions to withhold under the law-enforcement-investigation exception in § 25-19-105(b)(6) are technically outside that review power. The AG could explain the legal framework but could not formally bless or reject Little Rock's specific (b)(6) withholdings.

Second, on the (b)(6) framework, briefly. The exception protects records that are part of an ongoing investigation. The Arkansas Supreme Court cases (Keech, McCambridge, Martin v. Musteen, Hengel) establish that records must be "sufficiently investigative in nature" to qualify, and that not every record connected to a law-enforcement matter is automatically exempt. Some records may need partial release with redactions under the segregable-portion rule of § 25-19-105(f)(2). Whether the investigation is "complete" is a fact question to be determined by considering the views of all authorities involved, including police and prosecutors.

Third, on the employee-evaluation withholdings, the AG was less generous. Items 15 and 16 on Carpenter's list (administrative leave/suspension records, complaint records) might or might not be employee-evaluation records depending on who created them and why. Thomas v. Hall requires that employee-evaluation records be created (1) by or at the behest of the employer (2) to evaluate the employee (3) detailing performance. An unsolicited complaint that becomes part of an internal investigation does not automatically transform into an evaluation record. The custodian should reclassify carefully and apply the appropriate test.

Fourth, on records the city planned to release, the AG noted the city had not classified them in detail. Some likely qualify as personnel records (releasable with sensitive-personal-information redactions); others may be plain non-exempt public records that don't need a personnel-records analysis at all.

Fifth, on the prosecutor's ethical concern, the AG was clear: the prosecutor's preference, while understandable, does not by itself authorize withholding. A custodian cannot exempt records absent a statutory hook (the (b)(6) ongoing-investigation exception, the (c)(1) employee-evaluation exception, or another specific exception). The prosecutor's concerns might inform the (b)(6) analysis (because an ongoing-investigation determination is fact-sensitive and the prosecutor's view matters), but that is the only legitimate route.

The AG closed by reiterating that disclosability is a fact-intensive determination the custodian must make in the first instance, subject to judicial review.

What this means for you

If you're a city or county attorney handling a high-profile police records request

You have to be more granular than a three-bucket plan. Each requested item gets classified (personnel, evaluation, ongoing-investigation, plain public record), and the right test gets applied. The (b)(6) exception only covers records "sufficiently investigative in nature." A press release, a payroll form, or a chain-of-command memo is not investigative just because the subject of the records is also under investigation. Run the segregable-portion analysis: what part of the document, if any, must be redacted, versus what part can come out today?

If you're a journalist or civil rights attorney requesting police records

Compose your request in itemized form so the custodian has to address each item individually. If the response is bulk withholding under "ongoing investigation," push back: ask which records and which parts are actually investigative, and demand a segregable-portion analysis. Cite Hengel v. City of Pine Bluff and Holladay v. Glass: not every record connected to law enforcement is exempt.

If you're a custodian for a police department or city

Two common errors: (1) treating any record about an employee under investigation as automatically exempt employee-evaluation; and (2) treating any record connected to an active criminal case as automatically exempt ongoing-investigation. Both exceptions are specific. Apply Thomas v. Hall to the first and Hengel/Keech to the second.

If you're a prosecutor with concerns about disclosure

Your concerns are real and the (b)(6) exception is partly designed to address them. But you cannot block release of records that are not "sufficiently investigative" through your office's preference alone. If you have a specific concern (witness identification, interrogation strategy, undisclosed leads), articulate it record-by-record, not as a blanket request.

Common questions

Q: Does the (b)(6) "undisclosed investigation" exception cover everything related to the case?
A: No. Hengel, Keech, and other cases require records to be "sufficiently investigative in nature." Routine personnel files of officers under investigation are not automatically (b)(6) records. Investigative reports, witness statements, and similar materials typically are.

Q: Can the custodian release some pages and redact others from the same document?
A: Yes. § 25-19-105(f)(2) requires that "any reasonably segregable portion of a record shall be provided after deletion of the exempt information." Bulk withholding when partial release is feasible is improper.

Q: Why does it matter who created the document for the employee-evaluation analysis?
A: Because Thomas v. Hall requires the document to have been created by or at the behest of the employer specifically to evaluate the employee. An external complaint, a witness statement, a media inquiry response, none of these qualify just because they end up in an internal file.

Q: Can the prosecutor's ethical concerns ever justify withholding?
A: Indirectly. They can inform the factual question of whether an investigation is ongoing under § 25-19-105(b)(6). But they are not a freestanding exemption.

Q: What was the underlying incident?
A: An officer-involved shooting under criminal investigation by ASP and the Pulaski County Prosecuting Attorney's office, with Chief Keith Humphrey involved. The opinion does not recount the underlying facts; the FOIA analysis turns on the procedural framework, not the merits of the shooting investigation.

Background and statutory framework

This opinion is unusual in scope because Carpenter asked the AG to review a three-pronged disclosure decision rather than a single record-classification call. The AG's review authority under § 25-19-105(c)(3)(B) is statutory and bounded: it covers personnel and employee-evaluation records. The (b)(6) ongoing-investigation exception is technically outside that scope, even though the records may be the same physical documents.

The substantive framework draws on three lines of Arkansas Supreme Court cases. Young v. Rice sets the personnel-records balancing test. Thomas v. Hall sets the employee-evaluation definition. The (b)(6) line (Hengel, Keech, McCambridge, Martin, Holladay, Johnson) sets the contours of the ongoing-investigation exception. Each test is fact-intensive and best applied document by document.

The opinion is also notable for its treatment of the prosecutor's request. AG opinions sometimes treat prosecutorial preferences as effectively binding when the records are part of an active criminal investigation, but this opinion is more cautious: prosecutorial concern matters factually but does not create a freestanding withholding authority outside the statute.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(6) (ongoing law enforcement investigation)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation)
• Ark. Code Ann. § 25-19-105(c)(3)(B) (AG opinion review authority)
• Ark. Code Ann. § 25-19-105(f)(2) (segregable portion rule)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Dep't of Ark. State Police v. Keech, 2017 Ark. 143, 516 S.W.3d 265 (2017)
• Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)
• Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990)
• Holladay v. Glass, 2017 Ark. App. 595, 534 S.W.3d 173 (2017)
• Johnson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-006

January 21, 2022

Thomas M. Carpenter, Esq.
City Attorney
City of Little Rock
500 West Markham, Suite 310
Little Rock, AR 72201-1400

Dear Mr. Carpenter:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the custodian of records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(ii) (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 Little Rock ("the City") has received several requests under the FOIA for records relating to an officer-involved shooting ("the Incident") involving police Chief Keith Humphrey. You have attached to your correspondence a list identifying the nature of the items that have been requested under the FOIA. You write that the Incident is under criminal investigation by the Arkansas State Police and the Pulaski County prosecuting attorney's office. You state that the purpose of your correspondence "is to request an opinion from [my] office as to the City's duty to release public records, including those which may be deemed personnel records, during an ongoing criminal prosecution."

You report that the City believes that some of the items requested are either exempt or partially exempt from disclosure "because of an ongoing criminal investigation." You have listed the items determined to be exempt or partially exempt on that basis. You further state that the City believes several items, which you also list, "are exempt from disclosure because they deal with an employee evaluation that has not resulted in demotion, suspension, or termination, nor has any City administrative process been completed." Finally, you list other requested items that the City believes are subject to disclosure under the FOIA.

According to your correspondence, the chief deputy prosecuting attorney, citing ethical concerns and the need to protect the integrity of the investigation, has asked that no information pertaining to the investigation be released. You acknowledge the prosecutor's ethical concerns and you ask whether those concerns "impact any AFOIA obligation of the City to disclose information?"

RESPONSE

My duty under Ark. Code Ann. § 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. I have not been given any specific statutory charge to review the decision of a custodian of records outside the context of personnel or evaluation records. I must, therefore, address a preliminary point regarding the scope of this opinion. My review pursuant to § 25-19-105(c)(3)(B) does not generally extend to the provision regarding undisclosed and ongoing law enforcement investigation records, codified at Ark. Code Ann. § 25-19-105(b)(6) (Supp. 2021). Thus, to the extent you are asking me to evaluate the correctness of the City's decision that some of the records at issue are exempt or partially exempt based on § 25-19-105(b)(6), because of an ongoing criminal investigation, that request will not be addressed herein. I will, however, address the general law regarding that provision, and its possible applicability to personnel or evaluation records.

As for the records the City believes are exempt based on § 25-19-105(c)(1) (because, you say, they deal with an employee evaluation that has not resulted in disciplinary action), it is my opinion, based on your general identification of the requested items, that the City's decision in all likelihood is only partly consistent with the FOIA. As explained further below, the employee-evaluation exception only applies to documents that were created by or at the behest of the employer for the purpose of evaluating the employee. Not having seen any of the records, however, I cannot definitively opine on the releasability of any specific document. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

Likewise, regarding the records the City believes are subject to disclosure, you have not indicated which, if any, of the listed items qualify as records falling within the scope of my review pursuant to § 25-19-105(c). Based on their general description in your correspondence, it seems likely that some are properly classified as personnel records that are disclosable under the relevant test discussed below. However, others may be simply non-exempt public records that are subject to disclosure. But again, because I have not seen the records or been apprised of their classification, I lack sufficient information to definitively critique the City's decision that they should be disclosed.

Finally, with regard to the concerns expressed by the prosecutor and his desire that no records be released, I believe those concerns and request are beyond your consideration as custodian or my authority to review, at least with respect to items not covered by § 25-19-105(b)(6), § 25-19-105(c), or any other statutory exception.

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, 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." My duty under Ark. Code Ann. § 25-19-105(c)(3)(B) is to determine whether the custodian's decision as to the release of these kinds of records is consistent with the FOIA. 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.

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 (Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital status and information about dependents; dates of birth of public employees; Social Security numbers; medical information; any information identifying certain undercover law enforcement officers (Ark. Code Ann. § 25-19-105(b)(10)); driver's license number; insurance coverage; tax information or withholding; payroll deductions; and banking information.

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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records in question formed a basis for the decision made in that proceeding; and (4) the public has a compelling interest in the disclosure of the records in question. Ark. Code Ann. § 25-19-105(c)(1).

III. Application.

As explained above in my initial response, your request to some degree does not fall within the specific charge given me in the FOIA with regard to the issuance of opinions in connection with personnel and evaluation records. The City has decided that some of the records at issue are exempt or partially exempt based on § 25-19-105(b)(6), because of an ongoing criminal investigation. Your correspondence itemizes these records requests on pages 7 and 8. Given the limited scope of my review, I am unable to conclusively evaluate the correctness of that decision.

Nevertheless, I will note that the law enforcement investigation exemption protects records that are part of a continuing, ongoing investigation. Depending upon their content and the surrounding facts, documents originating as personnel or evaluation records may come within the § 25-19-105(b)(6) exemption if they are being used as part of a criminal investigation. Records must, however, be "sufficiently investigative in nature to qualify for the exemption." Thus, the mere fact that records relate somehow to an ongoing criminal information will not, alone, support withholding nonexempt public records. The Arkansas Supreme Court has made clear that not all documents connected with law enforcement are "sufficiently investigative" in nature to qualify for the law enforcement investigation exemption. Additionally, some portions may be subject to inspection and copying under the FOIA, and some portions may be properly withheld under the law enforcement exemption.

I believe it is apparent from this discussion that the disclosability of the items listed on pages 7 and 8 of your correspondence will depend heavily on certain factual considerations that only the custodian is situated to determine. It is the responsibility of the custodian of records to make these determinations, subject of course to judicial review.

With regard to the records the City believes are exempt based on § 25-19-105(c)(1) (items 15 and 16 on page 9 of your correspondence), it is not clear from their description that records responsive to these requests qualify as employee-evaluation records. As explained above, records do not fall into that category unless they were created by or at the behest of the employer for evaluation purposes. I lack sufficient information to further evaluate the City's decision in this regard. I will simply note that depending upon the circumstances surrounding their creation and their content, records regarding an employee's administrative leave/suspension and complaints involving public employees may constitute either employee-evaluation records or personnel records. The custodian must properly classify the responsive records and apply the appropriate disclosure test(s).

As for records the City plans to disclose (in response to requested item 7 at the bottom of page 7 and items 8 through 14 on page 8 (except for the items in bold type), and items 17 through 23 on pages 9-10 of your correspondence), you have not classified these records. While it seems likely, based on the requests, that many of the responsive records in this regard constitute personnel records, I cannot definitively opine to that effect. Moreover, several of the requested records may simply be public records that are not subject to any exemption.

As for disclosure, while I have no reason to question the City's determination that the records responsive to these requests are subject to public release, I lack sufficient information to definitively comment on the legal basis for that decision. The proper classification of these records is necessary to determine the applicable test for their release. This will involve factual considerations, and I lack sufficient facts to definitively critique the City's determination.

Finally, regarding the prosecutor's ethical concerns and his request that no information pertaining to the investigation be released until the case is closed, the ongoing law enforcement investigation exemption under § 25-19-105(b)(6) is intended, in part, to avoid disclosures that would be detrimental to the accused. As explained by the Arkansas Supreme Court:

The need for subsection (b)(6), the basic exemption, is obvious; for example, disclosure of such records would hamper the police in investigating a crime before formal charges had been filed and could be detrimental to persons under investigation but subsequently exonerated of all wrongdoing.

The City lacks authority, moreover, to exempt records absent specific statutory authority. Thus, at least with respect to items not covered by § 25-19-105(b)(6) (law enforcement investigation exemption), § 25-19-105(c) (employee-evaluation and personnel records exemptions), or any other statutory exception, I believe the prosecutor's concerns and request are beyond your consideration as custodian or my authority to review.

Sincerely,

LESLIE RUTLEDGE
Attorney General