When does the Arkansas FOIA require disclosure of a state police officer's employee-evaluation records, and what gets redacted?
Plain-English summary
Arkansas State Police (ASP) received a FOIA request for "all disclosable disciplinary records" relating to several ASP employees including Sr. Cpl. Desmond Benton. The custodian determined two files were responsive (the 2005 file and the 2007 file) and prepared to release them with redactions. Sr. Cpl. Benton, as the subject of the records, asked the AG under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) whether the custodian's release decision was consistent with the FOIA. The AG concluded it generally was.
The framework the AG applied is standard for Arkansas employee records, with one wrinkle for "mixed records." Disclosure under FOIA requires three elements: (1) the request is to an entity subject to the FOIA, (2) the requested document is a public record, and (3) no exception bars release. The first two were not in dispute (ASP is subject to FOIA; records held by a public entity are presumptively public records under Ark. Code Ann. § 25-19-103(7)(A)). The analysis turned on element three.
Two exceptions are most relevant for personnel files. "Personnel records" under § 25-19-105(b)(12) cannot be disclosed if disclosure would constitute a "clearly unwarranted invasion of personal privacy." "Employee evaluation or job performance records" under § 25-19-105(c)(1) cannot be disclosed unless all four of the following are met: (1) the employee was suspended or terminated; (2) the discipline is final; (3) the records formed a basis for the discipline; and (4) there is a compelling public interest in disclosure.
The records at issue were unambiguously employee-evaluation records (records "created by or at the behest of the employer" to "evaluate the employee" detailing performance or lack of performance, per Thomas v. Hall, 2012 Ark. 66). The Arkansas Supreme Court has held in Thomas that the exception covers records generated while investigating allegations of employee misconduct that detail the underlying incidents.
On compelling public interest, the AG quoted the leading FOIA commentators (Watkins, Peltz-Steele, and Steinbuch) on the three factors a custodian should weigh: (1) the nature of the infraction (with particular concern for violations of public trust or gross incompetence); (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. A general interest in public-employee performance is not "compelling" because that interest theoretically always exists. The custodian's status assessment is "always a question of fact" determined in the first instance by the custodian.
On "mixed records," the AG flagged the limit of the subject's review right. A subject can ask the AG to review only records that pertain to the subject. To the extent the 2007 file contained records pertaining exclusively to another employee, those records were outside the AG's review. Per Op. Att'y Gen. 2020-037, mixed records (those naming or discussing more than one employee) are classified separately for each individual, and the appropriate test is applied per individual.
Applying these standards to the records on their face, the AG concluded the custodian's determination that all four elements of the employee-evaluation test had been met was not unfounded. The decision to release the records as redacted was therefore generally consistent with the FOIA.
What this means for you
Arkansas State Police officers and other state law enforcement employees
Your disciplinary file is potentially releasable under FOIA, but only if all four conditions of the employee-evaluation test are met. The most consequential filter is "compelling public interest": a generic interest in police accountability does not satisfy the test on its own. The factors that move the needle are: (a) was the underlying conduct a public-trust violation or gross incompetence, (b) is there a public controversy connecting the agency to the conduct, and (c) what is your rank or position within the agency. Higher-ranking officers and matters of public controversy more often clear the bar. Routine performance issues that resulted in suspension generally do not.
If you receive notice that records about you are being released, you have the right under § 25-19-105(c)(3)(B)(i) to request an AG opinion. The opinion is persuasive but not binding; if you believe the release is wrong, you can also pursue judicial review in circuit court.
If a record names you and another employee, the custodian must classify and apply the test for each employee separately. You can ask the AG to review only the records as they pertain to you.
FOIA custodians at Arkansas state agencies
The four-part employee-evaluation test is the operational core. Document your analysis on each prong. The "compelling public interest" prong requires concrete reasoning about the nature of the infraction, any related public controversy, and the employee's position. A custodian who simply says "police accountability is in the public interest" without further analysis is exposed.
For mixed records, run the analysis separately for each named employee. A single document may need separate redaction strategies depending on which employee a given passage concerns.
Public records requesters and journalists seeking police records
Frame your request and any follow-up to highlight the compelling-public-interest factors: the public-trust dimension of the alleged misconduct, the existence of any public controversy connecting the agency and the employee, and the rank or visibility of the employee within the agency. A request for "all disciplinary records" without context invites the custodian to apply the routine version of the test, which often blocks release.
Police accountability advocates
The four-part employee-evaluation test is a real but workable barrier. The "compelling public interest" prong is the doctrinal pivot. Strategic litigation and FOIA practice in this area should focus on building the public-controversy and public-trust factual record around specific incidents.
Common questions
When can the public see an Arkansas police officer's disciplinary records?
Under § 25-19-105(c)(1), only when all four conditions are met: the officer was suspended or terminated, the discipline is final, the disciplinary records formed a basis for the discipline, and there is a compelling public interest in disclosure. If any element is missing, the records stay sealed under FOIA.
What does "compelling public interest" mean?
The leading commentators (and this opinion) identify three factors: the nature of the infraction (especially public-trust violations or gross incompetence), the existence of a public controversy about the agency, and the employee's position within the agency. A general interest in public-employee performance does not qualify because that interest always theoretically exists.
Why did the AG only review parts of the 2007 file?
The subject-review path under § 25-19-105(c)(3)(B)(i) is limited to records that pertain to the subject. Records pertaining exclusively to another employee fall outside the scope of the requesting subject's review. The AG would only address records as they related to Sr. Cpl. Benton.
How do "mixed records" get classified?
A single document that names or discusses multiple employees is reviewed per-employee. The custodian classifies the document as it relates to each individual (personnel record vs. employee-evaluation record) and applies the appropriate test for disclosure for each individual. A redaction may strip out passages about Employee A while leaving passages about Employee B (or vice versa).
What is an "employee evaluation or job performance record"?
Per Thomas v. Hall (2012 Ark. 66): a record (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details the employee's performance or lack of performance on the job. The exception covers records generated while investigating allegations of employee misconduct that detail the underlying incidents.
What does "as redacted" mean here?
The custodian was prepared to release the responsive disciplinary files but with redactions. Standard redactions include personally identifying information of third parties, specific items exempt under other parts of FOIA (e.g., social security numbers, undercover officer identifiers), and parts of mixed records that pertain to other employees in ways that do not clear the four-part test for that other employee.
Can the officer block release entirely?
No, not on personal preference. The subject's review path produces an AG opinion, which is persuasive but not binding. The Arkansas FOIA's framework is requester-blind and subject-blind on the substantive prongs.
Background and statutory framework
Disclosure framework:
- Ark. Code Ann. § 25-19-103(7)(A): public-record definition.
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007): records held by public entities are presumed public records, rebuttable.
Personnel-records exception:
- Ark. Code Ann. § 25-19-105(b)(12): "clearly unwarranted invasion of personal privacy."
Employee-evaluation records exception:
- Ark. Code Ann. § 25-19-105(c)(1): four-part test (suspension/termination, finality, basis, compelling public interest).
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: definition of "employee evaluation record"; misconduct-investigation records included.
Subject review path:
- Ark. Code Ann. § 25-19-105(c)(3)(B)(i): custodian, requester, or subject may seek AG opinion on whether release is consistent with FOIA.
Mixed records doctrine:
- Op. Att'y Gen. 2020-037 (and predecessors): per-employee classification and test application.
Citations
- Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(12); 25-19-105(c)(1); 25-19-105(c)(3)(B)(i)
- 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)
- John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017)
- Companion AG opinions: 2011-078, 2009-210, 2009-067, 2008-065, 2008-004, 2007-225, 2006-111, 2006-038, 2006-035, 2005-030, 2004-211, 2003-073, 98-006, 97-368, 97-222, 96-168, 95-351, 94-306, 93-055, 2020-037
Source
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2022-028
July 22, 2022
Sr. Cpl. Desmond Benton
c/o Tess Bradford, Esq.
1 State Police Plaza Dr.
Little Rock, AR 72209
Dear Corporal Benton:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the 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.
Correspondence my office received indicates that your employer, Arkansas State Police (ASP), has received a request under the FOIA for "all disclosable disciplinary records" relating to several ASP employees, including you. At your request, the custodian has submitted two files of documents that the custodian has determined are responsive to the request and that the custodian 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, I must address a preliminary point regarding the limited scope of my review in this matter. With respect to the 2007 file, a number of those records either 1) pertain exclusively to another employee or 2) are properly considered "mixed records," meaning in this case they name or contain identifying information about you and another employee. To the extent that records in the 2007 incident file pertain exclusively to the other individual, please be advised that they are not within the scope of this opinion. The conclusions reached herein regarding that file apply only to records as they relate to you.
That point being established, it is my opinion that the custodian's decision to release the records, as redacted, is generally consistent with the FOIA.
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 ASP, 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. In this instance, it is clear and uncontested that the records at issue are properly classified as your evaluation records. I will, therefore, limit my discussion to records of that type.
The FOIA does not define "employee evaluation or job performance records." But the Arkansas Supreme Court 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 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.
If a document meets the definition of an employee-evaluation record, the document cannot be released unless all the following elements have been met:
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The employee was suspended or terminated (i.e., level of discipline);
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There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
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The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
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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 considering all the relevant information.
The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process so as to promote honest exchanges in the employee/employer relationship.
III. Application.
We can now apply the foregoing standards and precepts to the records as presented. And at this point, I must remind you of the limited scope of my review pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i) with respect to the 2007 file as I set out above.
With respect to both files, it is my opinion that the custodian's determination that the records are your evaluation records is mostly consistent with the FOIA. It is clear from the face of the records that they "were created by or at the behest of the employer and that detail [your] performance or lack of performance... with regard to a specific incident." Furthermore, the custodian, armed with all the facts and relevant information surrounding each file, has apparently determined that all elements of the four-part test regarding the disclosure of employee-evaluation records have been satisfied. I cannot say from the face of the records that this determination is unfounded. Accordingly, it is my opinion that the decision of the custodian to release the records, as redacted, is generally consistent with the FOIA.
Sincerely,
LESLIE RUTLEDGE
Attorney General