Can Arkansas State Police release personnel and evaluation records of a former employee who is now running for sheriff?

Plain-English summary

A FOIA requester asked the Arkansas State Police for the personnel file and certain employee-evaluation records of Jim D. Milam, a former ASP employee who was at the time of the request running for Randolph County Sheriff. The ASP custodian decided to release the records with redactions and presented the records to the AG for review at Milam's request under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). Unlike most opinions in this category, the AG actually had the records in hand and could give a substantive review.

Attorney General Leslie Rutledge concluded the redacted release was mostly consistent with the FOIA. Two parts of the analysis are notable.

First, the personnel records. The records "appear to be the types of records typically found in an employee's personnel file." Applying the standards in Young v. Rice, the redacted release would not constitute a clearly unwarranted invasion of personal privacy. Personnel records' release is consistent with the FOIA.

Second, the employee-evaluation records. The first three elements of the four-prong test under § 25-19-105(c)(1) (suspension or termination, finality, basis) appeared satisfied on the face of these records. The AG found the fourth element, compelling public interest, satisfied after considering two points:

• Allegations of misconduct by law-enforcement employees that bear on departmental rules aimed at conduct that could undermine public trust or compromise public safety typically support a compelling public interest finding (citing prior AG opinions 2014-088, 2008-090).
• Milam was a candidate for Randolph County Sheriff. Quoting Op. Att'y Gen. 2008-090, the public's interest in the employment records of a former ASP employee running for sheriff is "substantial, especially where [the employee] intend[s] to place [himself] in contention for a position of public trust."

So the evaluation records' release was also consistent with the FOIA.

Third, two additional redactions. The AG noticed that on an email dated November 6, 2012 (in the personnel records) and another dated November 4, 2013 (in the evaluation records), a hand-written number appeared that "may be your personnel number with the Arkansas State Police." If that number was indeed Milam's ASP employee personnel number, both instances must be redacted under § 25-19-105(b)(11) and prior AG guidance.

What this means for you

If you're a candidate for public office whose prior public-employment records are being requested

In this case, the AG considered the employee's sheriff candidacy when deciding whether the public had a compelling interest in the evaluation records. The AG also considered the misconduct context and found the other three statutory conditions met. Candidacy by itself is not a rule that every prior evaluation record must be released.

If you're a former public employee not running for office

This opinion does not decide whether the same evaluation records would be disclosed without Milam's sheriff candidacy. The custodian would still have to apply all four statutory conditions to evaluation records, and the separate privacy test to personnel records.

If you're the records custodian for a state police agency

Review handwritten annotations as well as printed text before release. The AG found the same number on two emails and said to redact both instances if it was Milam's employee personnel number. For evaluation records, document each of the four statutory conditions, including the facts supporting a compelling public interest.

If you're a journalist or voter researching a candidate

This opinion shows how the AG reviewed one proposed release of a former State Police employee's records when he was running for sheriff. You can cite its fact-specific compelling-interest analysis, but request and release decisions still depend on the particular records and all four statutory conditions.

Common questions

Q: What is the four-prong test for releasing employee-evaluation records? A: Under § 25-19-105(c)(1) and Thomas v. Hall, the records can be released only if (1) the employee was suspended or terminated, (2) there has been a final administrative resolution of the disciplinary proceeding, (3) the records formed a basis for that decision, and (4) the public has a compelling interest in the disclosure.

Q: What makes a public interest "compelling"?
A: There is no statutory definition. The leading commentators (Watkins, Peltz-Steele, and Steinbuch's Arkansas FOIA treatise) suggest three factors: nature of the underlying infraction (especially public-trust violations or gross incompetence), existence of a public controversy related to the agency, and the employee's position. They say a general interest in public-employee performance is not compelling, while a link between a specific agency controversy and an employee's serious breach of public trust should suffice.

Q: Why does running for sheriff change the analysis? A: The AG described the public's interest in this former State Police employee's records as “substantial,” especially because he was seeking a position of public trust. She reached that finding alongside the records' law-enforcement misconduct context.

Q: Does this opinion decide disclosure of a candidate's other employment records? A: No. It reviewed the State Police records presented by this custodian. Other records would require their own classification, disclosure test, and review of any needed redactions.

Q: What's the personnel-number redaction rule?
A: The AG said that if the handwritten number on the two emails was Milam's employee personnel number, it had to be redacted in both places. She cited § 25-19-105(b)(11) and a prior AG opinion for that conclusion.

Background and statutory framework

Arkansas FOIA's two-tier structure for employee records (personnel records under (b)(12), evaluation records under (c)(1)) creates two very different release paths. Personnel records are presumptively releasable subject to the Young v. Rice "clearly unwarranted invasion of personal privacy" test. Evaluation records are presumptively confidential and become releasable only on the four-prong test.

For these evaluation records, the AG found the first three release conditions met from the records' face and considered the alleged law-enforcement misconduct and Milam's sheriff candidacy in finding a compelling public interest. The conclusion applies to the documents reviewed here.

The custodian gave the AG the responsive records. That enabled the AG to review particular redactions and identify the handwritten number on two emails.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(11) (personnel number)
• 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)(i) (subject's right to AG opinion)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Prior AG opinions cited:

• Op. Att'y Gen. 2014-088 (law-enforcement misconduct compelling public interest)
• Op. Att'y Gen. 2008-090 (candidates for public office)
• Op. Att'y Gen. 2002-067 (candidates for public office)
• Op. Att'y Gen. 2015-057 (personnel-number redaction)

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. 2022-016

March 11, 2022

Jim D. Milam

c/o Tess Bradford, Esq.
Arkansas State Police

1 State Police Plaza Drive
Little Rock, AR 72209

Dear Mr. Milam:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject of records, is made pursuant to 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.

Correspondence from your former employer, the Arkansas State Police, indicates that it has received a request under the FOIA for your “personnel file” as well as certain of your employee-evaluation records. The records custodian has presented to me documents that she believes are responsive to the request and that she intends to release with redactions. You ask whether the custodian’s decision to release the records as redacted 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 the records as redacted is mostly consistent with the FOIA. My review discovered two additional redactions that may need to be made prior to the documents’ release.

323 CENTER STREET, SUITE 200 » LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 » FAX (501) 682-8084 ARKANSASAG.GOV Mr. Jim D. Milam

c/o Arkansas State Police
Opinion No. 2022-016
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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 Arkansas State Police, 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

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).

2 Id.

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; requests for leave-without-pay; certificates 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 ACT 205-06 (Arkansas Law Press, 6th ed., 2017). Mr. Jim D. Milam

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be divided into two mutually exclusive groups: “personnel records”5 or “employee

evaluation or job performance records.”6 The tests for whether these two types of documents may be released differ 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 public 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

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

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)(1): “Notwithstanding subdivision (b)(12) 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 if there 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. § 25-19-105(b)(12).

9 308 Ark. 593, 826 S.W.2d 252 (1992).
Mr. Jim D. Milam

c/o Arkansas State Police
Opinion No. 2022-016
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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 minimis privacy interest.11 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.12 Because exemptions 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 government for the general public.17 This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester

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, ef a/., 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.

17 See Ops. Att’y Gen. 2019-047, 2018-061.
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Opinion No. 2022-016

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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)(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).

Banking information (Op. Att’y Gen. 2005-194),

b. Employee-evaluation exception.

The second potentially relevant exception is for “employee evaluation or job

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 courts 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). Mr. Jim D. Milam

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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 definition of an employee-evaluation record, 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:

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

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. 2020-037 (and opinions cited therein).

23 Ark. Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065 Mr. Jim D. Milam

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Opinion No. 2022-016
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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 to promote honest exchanges in the employee/ employer relationship.26

III. Application.

Having reviewed the records, it is my opinion that the custodian’s decision to release the records, as redacted, is mostly consistent with the FOIA. However, my review discovered two additional redactions that must be made prior to the documents’ release.

Turning first to the group of records the custodian determined were your personnel records. Those records, on their face, appear to be the types of records typically found in an employee’s personnel file. Based on the standards set out above, it is my opinion that the release of those records, as redacted, would not constitute a

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.
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clearly unwarranted invasion of personal privacy. Thus, those records’ release is consistent with the FOIA.

With respect to the records identified as your employee-evaluation records, it seems clear from the face of the records that the first three elements are met. As for the fourth—the “compelling public interest” element—this office has consistently opined that, with respect to allegations of misconduct by law enforcement employees, a compelling public interest likely exists in information reflecting a violation of departmental rules aimed at conduct that could undermine the public trust, compromise public safety, or both.27 In addition, it is my understanding that you are currently running for the office of Randolph County Sheriff.28 In my opinion, the public’s interest in the employment records of a former Arkansas State Police employee who is running for county sheriff is substantial, “especially where [the employee] intend[s] to place [himself] in contention for a position of public trust.”29 In this light, the custodian’s decision is consistent with the FOIA.

However, two additional redactions—one in each set of the records—may need to be made. In the personnel records, a number that appears to be your personnel number with the Arkansas State Police is hand-written on an email dated November 6, 2012, in the upper right corner of the page. In the evaluation records, on an email dated November 4, 2013, the same number appears hand- written next to your name. If this number was your employee personnel number, it must be redacted in both instances.30

Sincerely,

LESLIE RUTLEDGE
Attorney General

27 Ops. Att’y Gen. 2014-088, 2008-090.

28 Jim Milam running for county sheriff, POCAHONTAS STAR HERALD, Jan. 14, 2022, found at https://www.starheraldnews.com/2022/01/14/jim-milam-running-for-county-sheriff/ (accessed March 9, 2022).

29 Ops. Att’y Gen. 2008-090, 2002-067.

30 See Ark. Code Ann. § 25-19-105(b)(11). See also Op. Att’y Gen. 2015-057.