Can a police officer block release of his promotion dates and photo because he suspects the FOIA requester wants to harass him?
Plain-English summary
Captain K.J. Hartman of the Sherwood Police Department was the subject of a FOIA request. The requester wanted Hartman's promotion dates and a photograph. Hartman suspected he knew who the requester was and believed the requester had bad intentions. He asked the AG, as the subject of the records, whether the department's plan to release the records was consistent with FOIA.
The AG said yes, the records must be released. The reasoning is short and clean: under Arkansas FOIA, the requester's intent and motives are generally irrelevant. The custodian must apply the FOIA tests (personnel-records balancing, evaluation-records four-prong test) based on the records and the public interest, not based on suspicions about the requester's purpose.
The objective-test rule. Arkansas FOIA's privacy and disclosure determinations are objective, not subjective. Courts and the AG's office have consistently held that:
- The subject's view of whether disclosure invades their privacy is not controlling.
- The requester's stated or suspected purpose is generally not a factor in the legal analysis.
- The custodian decides based on the records and the law, not on the parties' motives.
Why this rule exists. FOIA is a transparency statute. Conditioning disclosure on the requester's intent would create a discretionary gatekeeping power that custodians could use to favor friendly requesters and disadvantage unfriendly ones. The objective rule eliminates that discretion. Anyone can ask, and the same legal answer applies regardless of who is asking.
The cited prior opinions. Op. 2014-094, Op. 2011-095, and Op. 2006-118 established the requester-motive-irrelevant principle in earlier contexts. Op. 2023-051 reaffirms it.
A narrow exception worth noting. The opinion uses the phrase "generally irrelevant." There are some FOIA exemptions where the use of the records might matter (for example, certain commercial-mailing-list exemptions or specific law-enforcement-investigation exemptions). But for a routine personnel-records request, the requester's intent does not create a withholding basis.
The deeper takeaway: If you are the subject of a FOIA request and the records are otherwise releasable under the legal tests, your suspicion of bad motives by the requester is not a legal basis to block release. Your remedies are elsewhere (criminal harassment law, civil restraining orders, departmental safety practices), not in the FOIA framework itself.
What this means for you
Police officers, sheriff's deputies, and other public employees
If you become aware of a FOIA request for your records and you have safety concerns about the requester:
- Your suspicion does not block FOIA release of records that pass the legal tests. The opinion is clear.
- Your remedies are in other legal frameworks: criminal harassment statutes, anti-stalking laws, civil restraining orders, no-contact provisions of court orders. If the requester actually harasses or threatens you, those remedies become available.
- Document your safety concerns. If the requester later acts on bad intent, contemporaneous documentation is useful.
- Talk to your department about safety practices: home-address protection, informal monitoring, security training. Many departments have practical procedures for officers facing harassment.
- Personal contact information (home address, personal email, personal phone) is separately exempt under A.C.A. § 25-19-105(b)(13). If the request reaches into that territory, that's a different analysis with stronger protections.
A photograph of you in your professional capacity (in uniform, official portrait) is generally subject to release. A personal photograph not used in your official capacity might be analyzed differently.
Records custodians at police departments and other public agencies
When a FOIA request comes in and the subject objects on motive grounds, your analysis remains the same:
- Apply the personnel-records test or evaluation-records test as appropriate.
- Apply contact-information redactions.
- Release if the legal tests pass.
- Document your decision.
If the subject raises a safety concern that is legally distinct (e.g., the home-address-disclosure issue under § 25-19-105(b)(13)), that's a redaction question, not a withholding question.
When in doubt, request an AG opinion under § 25-19-105(c)(3)(B)(i). The AG's office processes these on a tight timeline.
News reporters and FOIA requesters
The requester-motive-irrelevant rule cuts both ways. You don't have to disclose your purpose in making a FOIA request, and the agency cannot withhold records based on speculation about your purpose. If you're asked why you want the records, you can decline to answer; the agency must apply the legal tests regardless.
That said, courtesy and professional reputation matter. Agencies that consistently encounter respectful, well-informed requesters develop better working relationships. Custodians have discretion in things like turnaround time, format of records, and willingness to clarify ambiguous requests. A reputation for civility helps you over time.
Personal-safety advocates and stalking-victim advocates
Op. 2023-051 confirms a tension that Arkansas (like many states) has not fully resolved: FOIA transparency vs. personal safety of public employees. The legal architecture treats them in separate frameworks. FOIA does not include a "stalking-victim" or "harassment-target" exception; safety remedies are in criminal law and civil orders.
If you are advising a public employee on safety in the face of a known harasser, work both tracks: documentation through the criminal-justice system, and operational security practices at home and work. Don't expect FOIA itself to provide protection beyond the standard contact-information redactions.
Local elected officials thinking about policy
If you believe Arkansas should have a stalking-victim or harassment-target exception in FOIA, that's a legislative question. The General Assembly could amend A.C.A. § 25-19-105 to add a narrow exception for personnel records of public employees who are known targets of harassment, similar to the home-address exception. That would require statutory action; the AG cannot create it through opinion.
Citizens and watchdog organizations
The objective-test rule is one of the strengths of Arkansas FOIA. It means the law applies the same to journalists, advocacy groups, citizens, and even people the subject employee dislikes. Conditioning access on perceived legitimacy would be a serious erosion of transparency.
Common questions
My agency's spokesperson asked the requester why they wanted the records. Is that allowed?
The agency can ask but the requester is not required to answer. And the agency cannot use the answer (or refusal to answer) as a basis to withhold records that pass the legal tests.
A reporter is requesting my disciplinary records. Can I find out who the reporter works for?
The records of the FOIA request itself are typically public. You can ask the custodian for the request and any related correspondence. But this is information; it's not a basis to block release.
The requester is a known criminal who threatened me. Can the agency still release my records?
Active threats can change the analysis through other legal frameworks. If you have a current restraining order or active criminal charges against the requester, the agency may have additional considerations (potentially under specific safety-related statutes). Talk to your department's legal counsel and to law enforcement (if you are not yourself law enforcement). The FOIA framework alone does not give a withholding basis, but the broader legal picture might.
Are my home address and personal phone protected?
Yes. A.C.A. § 25-19-105(b)(13) exempts home or mobile telephone numbers, personal email addresses, and home addresses of certain nonelected public employees, regardless of whether the broader records are releasable.
What about a photograph of me in uniform?
A photograph in your professional capacity is generally subject to release. The privacy interest in a uniform photograph used in your official capacity is minimal.
Can I sue the agency for releasing my records to a stalker?
Possibly under a separate legal theory (e.g., negligent disclosure if the agency violated a specific statutory duty). But the FOIA disclosure itself, if it followed FOIA's tests, is unlikely to ground liability. Talk to a lawyer about specific facts.
Does this rule apply to FOIA requests in other states?
Many state FOIA laws follow the same objective rule, but specifics vary. Don't assume Arkansas's rule applies in other jurisdictions.
Background and statutory framework
Arkansas FOIA at A.C.A. § 25-19-105 establishes a presumption of openness for public records, with specific exemptions. The structure for personnel and evaluation records (subsections (b)(12), (c)(1)) gives the custodian a balancing or four-prong analysis based on the records and the public interest, not on the requester's identity or motive.
The objective-test rule for FOIA disclosure has been articulated in numerous AG opinions over decades:
- Op. 2014-094: requester's purpose is not relevant
- Op. 2011-095: requester's intent does not control
- Op. 2006-118: motive irrelevance in personnel-records context
The rule is consistent with the AG's articulation in employee-records cases that the test is "objective" and the subject's preference is not controlling (Ops. 2016-055, 2001-112, 2001-022, 94-198).
The objective-test framework appears throughout Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017).
A separate set of statutes (criminal harassment, stalking, restraining orders) addresses the safety concerns that may motivate a subject's objection. Those statutes are independent of FOIA and provide their own remedies.
Citations
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion process for subject of records)
- Ark. Att'y Gen. Op. 2014-094 (requester motives generally irrelevant)
- Ark. Att'y Gen. Op. 2011-095 (requester intent does not control)
- Ark. Att'y Gen. Op. 2006-118 (motive irrelevance in personnel records)
Source
Original opinion text
Opinion No. 2023-051
June 22, 2024
Captain K.J. Hartman
Sherwood Police Department
2201 E. Kiehl Avenue
Sherwood, Arkansas 72120
Dear Captain Hartman:
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 A.C.A. § 25-19-105(c)(3)(B)(i). That provision allows 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 employer (1) has received an FOIA request from someone who seeks the dates of your promotions and a photograph of you and (2) plans to disclose those documents. You object to the release of the photograph because you know who the request is and suspect he has bad intentions in making the request, and you are concerned about what the requester will ultimately do with the records.
RESPONSE
This office has consistently opined that, under the FOIA, the requester's intent and motives are generally irrelevant to the custodian when determining whether public records must be disclosed. Therefore, your objection is not a sufficient basis for the custodian to withhold your records from disclosure.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General