Can a police department withhold a third-party recording of an officer's private call from a public records release?

Plain-English summary

The Conway Police Department's Office of Professional Responsibility had an internal-affairs investigation file that someone sought through an Arkansas FOIA request. The custodian, Sgt. Jeremy Holliman, decided most of the file qualified as employee-evaluation records and could be released because the four-part test was met (the officer was suspended or terminated, the discipline was final, the records formed the basis of the discipline, and there was a compelling public interest). He wanted to withhold two narrow categories:

1. An audio file of a private phone call between the officer and the officer's spouse, recorded by an unidentified third party (not by the department) and sent to the department, plus the transcript and any references to the call's contents in the rest of the file.

2. References elsewhere in the file to an alleged extramarital affair between two officers.

The AG concluded:

On the audio recording: withholding is correct, but for a different reason than the department gave. The audio file and transcript are best classified as PERSONNEL RECORDS rather than employee-evaluation records, because they were not created by or at the behest of the employer. As personnel records, they are subject to the Young v. Rice balancing test (privacy interest vs. public interest, with the scale tipped in favor of disclosure under Watkins). At step one, the officer has a significant privacy interest in a recording of a private spousal call. At step two, the public interest in this particular content is minimal and does not overcome the privacy interest. Therefore, the recording and transcript are properly withheld. References to the recording's CONTENT in the rest of the file should also be redacted, because there is no compelling public interest in those references.

On the affair references: the AG could not give a definitive answer because the custodian's basis for redaction was unclear. The AG identified three possible legal grounds, any one of which would support redaction:
- The affair did not form the basis for the officer's suspension. (If the discipline was for something else, the affair material is not part of an employee-evaluation record subject to the four-part test.)
- There is no compelling public interest in the affair specifically. (Even within an employee-evaluation record, the test requires a compelling public interest in the records being released, and an affair may or may not meet that bar depending on circumstances.)
- The references describe another officer's personnel record, which is subject to its own balancing test and may merit redaction on personal-privacy grounds.

The AG flagged that internal-affairs files often contain "mixed records": multiple officers' evaluations or evaluations mixed with witnesses' personnel records. Custodians need to evaluate each segment under the rule that fits the segment, not under one blanket rule.

The opinion's broader framework, drawn from prior AG opinions and Watkins, the leading FOIA treatise:
- Personnel records: All records other than employee-evaluation records that pertain to individual employees. Open to inspection except where disclosure would be a "clearly unwarranted invasion of personal privacy" (A.C.A. § 25-19-105(b)(12)). Young v. Rice, 308 Ark. 593 (1992) supplies the two-step balancing test.
- Employee-evaluation records: Records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack thereof (Thomas v. Hall, 2012 Ark. 66; Davis v. Van Buren School Dist., 2019 Ark. App. 466). Closed unless the four-part test is satisfied: discipline level, finality, basis-of-discipline, compelling public interest.

For law enforcement officers specifically, prior AG opinions consistently treat the public interest in violations of office policy as compelling, given the public trust held by police officers.

What this means for you

FOIA custodians at police departments and other public agencies

Build the internal-affairs file release process around three checkpoints:

1. Classify each record. A document is either a personnel record or an employee-evaluation record. The classification turns on whether the document was created by or at the behest of the employer. Third-party-created documents (like an outside recording) typically fall on the personnel-record side.

2. Apply the right test. Personnel records: Young v. Rice balancing. Employee-evaluation records: the four-part test. Mixed records: redact under whichever rule applies to the redacted segment.

3. Document the basis for each withholding. The AG cannot tell from a written request why a specific redaction was made. If you write a brief internal memo classifying each redaction by category and rule, you protect the agency's defensibility on review.

For records segments that touch on third parties (other officers, complainants, witnesses), apply the test that fits the third party's interest, not the original subject's. Mixed records are common in IA files and require segment-by-segment analysis.

Law enforcement officers who are subjects of FOIA requests

You can request an AG opinion on the custodian's decision under A.C.A. § 25-19-105(c)(3)(B)(i). Three pieces of strategy:

• Identify documents in the file that were not created by your employer. Audio from a third party, social media posts, phone records subpoenaed from carriers, etc., are often personnel records under Young v. Rice rather than employee-evaluation records. The privacy interest is generally stronger and the disclosure standard tougher.
• For your evaluation records, consider whether the four-part test is actually met. If the discipline was suspended pending appeal, finality may not be present. If the records did not form the basis for the discipline, the third prong fails. If you can show no compelling public interest in a specific segment, the fourth prong fails.
• Object early. The AG's review under § 25-19-105(c)(3)(B)(i) needs to happen before the records go out the door.

Public records requesters and journalists

When you receive a redacted IA file, ask the custodian to classify each redaction:
- "personnel record" + Young v. Rice balancing (with the legal basis for the privacy interest)
- "employee-evaluation record" without finality
- "employee-evaluation record" without compelling public interest
- "mixed record" with another person's privacy claim

If the custodian gives only "FOIA exemption" without specifics, request specifics. The custodian's basis affects what you can challenge in a Pulaski County v. Ark. Democrat-Gazette FOIA suit.

County prosecutors and city attorneys advising police departments

Help departments build a written FOIA-IA release protocol. The AG opinion can be cited as the framework. Key elements:
- Standard classification template for each record type.
- Decision tree for the four-part test on employee-evaluation records.
- Young v. Rice template for personnel records.
- Mixed-record handling guidance.
- AG-opinion-request procedure when uncertain.

News media and First Amendment counsel

Note the law enforcement carve-out. Prior AG opinions consistently find a compelling public interest in police misconduct records given the public trust LEOs hold. That doctrinal default usually pushes the four-part test toward release for sustained, basis-of-discipline misconduct findings. The remaining ambiguity is around personal-life-only material that did not form the basis of discipline.

County prosecutors handling Garrity / Pickering issues alongside FOIA

The privacy analysis in Young v. Rice is independent from the Garrity Rule (compelled-statement protection) and Pickering balancing (employee speech), but the practical interplay matters. Coerced statements taken under Garrity protections that end up in IA files are still public records subject to FOIA; the protection runs against criminal use, not against public release. Coordinate the classifications.

Common questions

What is a personnel record vs. an employee-evaluation record under Arkansas FOIA?
Personnel records are records pertaining to individual employees that are NOT employee-evaluation records. Employee-evaluation records are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance. Each category has its own disclosure rule.

What is the Young v. Rice test?
A two-step balancing test for personnel records (A.C.A. § 25-19-105(b)(12)). Step 1: is the privacy interest more than minimal? If no, release. Step 2: if yes, does the privacy interest outweigh the public interest in disclosure? The scale starts tipped in favor of disclosure.

What is the four-part test for employee-evaluation records?
Under A.C.A. § 25-19-105(c)(1):
1. The employee was suspended or terminated.
2. The suspension or termination is final (administrative resolution).
3. The records formed a basis for the discipline.
4. There is a compelling public interest in disclosure.

All four elements must be met.

What is a "compelling public interest"?
Watkins (the leading FOIA treatise, citing AG opinions) lists three factors: nature of the infraction (especially public-trust violations or gross incompetence); existence of a public controversy; and the employee's position. A general interest in public-employee performance is not enough. For law enforcement officers, the public trust factor is consistently treated as creating a compelling interest in misconduct records.

Can a recording from a third party be an employee-evaluation record?
Not typically. The first prong of the Thomas v. Hall test requires creation by or at the behest of the employer. A third-party recording does not satisfy that prong.

What is a "mixed record"?
A record that contains more than one person's evaluation, or one person's evaluation plus another person's personnel information, or multiple persons' personnel information. The custodian must apply the appropriate test to each segment.

Does the subject's objection block release?
Under Arkansas case law (Stilley v. McBride, 332 Ark. 306), the test is objective. The subject's view that release would be an unwarranted invasion is "irrelevant to the analysis."

Can I appeal a custodian's decision?
Yes. Under A.C.A. § 25-19-105(c)(3)(B)(i), the custodian, requester, or subject of certain employee-related records can request an AG opinion. The AG opinion is persuasive but not binding; a court can decide differently in a FOIA suit.

Background and statutory framework

Arkansas FOIA and the relevant exceptions:
- A.C.A. § 25-19-103(7)(A): defines "public record."
- A.C.A. § 25-19-105(b)(12): personnel records exception (clearly unwarranted invasion of privacy).
- A.C.A. § 25-19-105(c)(1): employee-evaluation records exception (four-part test).
- A.C.A. § 25-19-105(c)(3)(B)(i): AG opinion request procedure for the custodian, requester, or subject.

Case law:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992): two-step balancing test for personnel records.
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007): rebuttable presumption of public-record status.
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998): person resisting disclosure bears the burden.
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: Arkansas Supreme Court adopted the AG's three-prong test for employee-evaluation records.
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466: confirmed adoption of the AG's framework.

Treatise:
- John J. Watkins, et al., The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Prior AG opinions referenced:
- Op. Att'y Gen. 97-368 (typical contents of personnel files).
- Ops. Att'y Gen. 2015-072, 99-147 (definition of personnel records).
- Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective nature of the test).
- Ops. Att'y Gen. 2014-129, 2009-146, 2006-158 (compelling public interest in LEO misconduct).
- Ops. Att'y Gen. 2008-065 (four-part test).
- Op. Att'y Gen. 96-168 (purpose of employee-evaluation exception).
- Op. Att'y Gen. 2015-057 (mixed records).

Citations

• A.C.A. § 25-19-103(7)(A) (public record definition)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(c)(1) (employee-evaluation records exception)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• 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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466

Source

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

Original opinion text

Opinion No. 2023-012
February 16, 2023
Sergeant Jeremy Holliman
Office of Professional Responsibility
Conway Police Department
1105 Prairie Street
Conway, Arkansas 72032

Dear Sgt. Holliman:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). The FOIA 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.

You say that your office received an FOIA request seeking certain disciplinary records and that the file representing an internal-affairs investigation is responsive to the request. It appears that you have decided all the records in the investigative file are employee-evaluation records and that you will disclose all the records with two sets of exceptions. First, you have decided to withhold from disclosure an audio file (and the transcript of that file) that was not created by or at the behest of the employer and that was a recording of a private phone conversation between the officer and the officer's spouse. The audio file was recorded by a third party and provided to your office. You have also decided to redact the "parts of the investigative" file that "talk about" the audio file and its contents. Second, you have decided to redact the parts of the investigative file that reference an alleged extramarital affair between two officers. You ask whether your decisions regarding these two sets of records are consistent with the FOIA.

RESPONSE

In my opinion, your decision to withhold the audio recording and its transcript, and to redact references to them throughout the file is consistent with the FOIA. As explained more below, the accuracy of your decision to redact all references to the alleged extramarital affair depends on your reasons for that decision, which are not entirely clear.

DISCUSSION

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 a city police department, which is a public entity and is subject to the FOIA. And the records you intend to disclose appear to be 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, I will focus on whether any exceptions prevent the documents' disclosure.

I. Exceptions to disclosure

The FOIA contains two exemptions for two groups of documents 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 first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

A. Rules governing personnel records

While the FOIA does not define the term "personnel records," 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 requires one to review the record itself.

A personnel record 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 has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing test, which takes place with the scale already tipped in favor of disclosure, has two steps. Under the first step, 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 minimal privacy interest. If it is only minimal, then the privacy interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the record must be disclosed. But if the privacy interest is more than merely minimal, the custodian moves to the second step when he or she must determine whether the privacy 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 the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

B. Employee-evaluation records

The second relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 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.

If a document qualifies as 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).

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, for that concern is, at least theoretically, always present. 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 between employees and their employers.

II. Application

We are now in a position to apply the foregoing rules to your two sets of decisions. As explained below, except for the audio file and its transcript, you have properly classified all the records as the employee-evaluation records of the officer being investigated. Therefore, the majority of the file can only be disclosed if the foregoing four-part test for disclosure has been met. Your recitation of the underlying facts indicates that the first, second, and third elements are clearly met. Your only hesitation appears to be whether the fourth element, compelling public interest, is met. This office's opinions have consistently indicated that because law-enforcement officers are invested with a significant public trust, there is usually a compelling public interest in records that reflect their violations of office policy. With the exception of the two sets of records discussed below, I believe a compelling public interest exists in these records.

A. The audio file and transcript, and the references to them

In my opinion, your decision not to disclose the audio file and its transcript is correct but not for the reason you provide. These two documents are best classified, not as employee-evaluation records, but as personnel records because they were not created by or at the behest of the employer. Rather, they were recorded by a third party and somehow provided to your office. Under the first prong of the Young v. Rice test, the officer has a significant privacy interest in the contents of the audio file and its transcript. Therefore, under Young v. Rice's second prong, one must weigh that privacy interest against any public interest in the record. In my opinion, the public's interest in these two files is minimal and certainly not strong enough to overcome the employee's privacy interest. Therefore, these two files should be withheld from disclosure. And when references to the contents of these files appear throughout the file you intend to disclose, those references should be redacted because there is no compelling public interest in the references.

B. References to the alleged extra-marital affair

My review of your decision to redact all references in the file to the alleged extramarital affair is more complicated because your basis for these redactions is unclear. I see three possible grounds on which your decision to withhold this information would be consistent with the FOIA: (1) the information about the alleged affair did not form the basis for the officer's suspension; (2) there is no compelling public interest in the information; or (3) you have determined that the references to the other officer with whom the affair allegedly occurred constitute her personnel record and should be redacted. If your decision to redact or withhold references to the alleged affair is based on one of the foregoing three reasons, then, in my opinion, your decision is consistent with the FOIA. Since I lack sufficient information to assess this part of your decision, I am unable to reach a definitive conclusion.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General