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 the records. The fourth element ("compelling public interest") is the one that usually decides these cases, and the AG found it satisfied for two converging reasons:

• 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

Running for public office substantially weakens privacy claims over prior public-service employment records. Voters have a recognized interest in knowing the work history, performance, and any misconduct findings related to a candidate seeking a position of trust. Past employer's evaluation records, including those documenting misconduct, are likely to clear the "compelling public interest" prong if they bear on fitness for the position you are seeking.

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

The "compelling public interest" prong is harder to satisfy. Without a public-controversy or public-trust hook, evaluation records typically stay confidential even if you have left the agency. Personnel records (with sensitive personal information redacted) are the more likely path to release.

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

Two takeaways. First, review records you plan to release (or withhold) line by line for stray identifiers like hand-written employee numbers, badge numbers, or notes. Even if the typeface text is redacted, hand-written annotations are easy to miss. Second, when an employee is running for public office, the compelling-public-interest analysis tilts toward release for evaluation records that bear on fitness.

If you're a journalist or voter researching a candidate

This opinion is precedent that says yes, an ASP candidate's prior employment evaluation records are likely releasable when those records bear on conduct that could affect public trust or safety. Cite Op. Att'y Gen. 2022-016, 2008-090, and 2002-067 when requesting records on candidates for public-trust positions.

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. A general interest in public-employee performance is not compelling. A specific link between an employee, a controversy, and a public-trust violation usually is.

Q: Why does running for sheriff change the analysis?
A: A candidate is asking voters to extend a position of public trust. The public has a near-axiomatic interest in evaluating the candidate's prior conduct, including past employment performance and any disciplinary findings. The AG's consistent line is that this interest qualifies as compelling.

Q: What about records for a candidate's earlier private-sector jobs?
A: This opinion only addresses public-employer records, where FOIA applies. Private-sector employment records are not public records and are not subject to FOIA. Voters can ask candidates directly or rely on whatever the candidate volunteers.

Q: What's the personnel-number redaction rule?
A: Section 25-19-105(b)(11) protects employee personnel numbers as identifying information whose release could enable misuse. Even when other identifying details (name, position, dates) are out, the unique employee number must be redacted.

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.

The "compelling public interest" prong is the most fact-sensitive part of the framework. The AG's consistent treatment of law-enforcement misconduct as raising public-trust concerns has built a fairly robust body of opinion supporting release in candidate-for-public-office cases. Op. Att'y Gen. 2008-090 and 2002-067 are the lead authorities; this opinion (2022-016) extends them to a former-state-police employee running for sheriff.

The AG's review under § 25-19-105(c)(3)(B)(i) is one of the few situations in which the AG actually examines the records, not just the framework. This results in a more granular review (here, catching the hand-written personnel number) than the typical AG opinion in this area.

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.

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. 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.

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. 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." Ark. Code Ann. § 25-19-105(b)(12).

The Arkansas Supreme Court in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), set out a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private, with the scale tipped in favor of disclosure. 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 (personal contact information, employee personnel number, marital and dependent information, date of birth, Social Security number, medical information, undercover officer identifying information, driver's license details, insurance coverage, tax withholding, payroll deductions, banking information).

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records." 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. If a document meets that definition, it cannot be released unless: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records formed a basis for the decision; and (4) the public has a compelling interest in the disclosure.

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 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. In addition, it is my understanding that you are currently running for the office of Randolph County Sheriff. 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." 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.

Sincerely,

LESLIE RUTLEDGE
Attorney General