Can a personnel record subject ask the AG to rule that her records are not actually responsive to a FOIA request?
Plain-English summary
Someone made a FOIA request to Marquita James's employer (apparently the Arkansas State Police, based on the reference to "ASP sworn personnel") for "records reflecting misconduct by any ASP sworn personnel from January 1, 2020, until present that results in any of the following forms of discipline: suspension without pay; disciplinary transfer; demotion or dismissal."
The custodian notified Ms. James that there were "releasable records related to" her, and told her she could seek an AG opinion on whether the redactions were correct. She asked the AG. But her objection was unusual: she did not argue the records were exempt. She argued they were not responsive to the request in the first place. In other words: the request asked for misconduct records resulting in specific discipline; she was saying her records did not match that description.
The AG declined to opine. The scope of AG review under § 25-19-105(c)(3)(B)(i) is limited to whether the custodian's release decision is "consistent with the FOIA." That phrase, the AG says, does not extend to whether the custodian correctly identified the records as responsive (Ops. 2014-110, 2006-136). Responsiveness is a factual question about the agency's records system, not a legal question about FOIA exemptions.
If the custodian misidentified records as responsive, that is an internal agency error. The remedy is not an AG opinion. The remedies might include:
- Ask the custodian to re-review the records and the request to confirm responsiveness.
- Engage with the requester directly (if known) to clarify the request scope.
- File a state-court action under FOIA if the issue rises to that level (though this may be a stretch since the requester wants the records, not less).
- Address the issue with the agency through internal channels.
This is a useful procedural opinion: it draws the boundaries of the AG's quick-review process. The AG can answer "is this release consistent with FOIA's exemption framework?" The AG cannot answer "did the custodian correctly identify these records as responsive?"
What this means for you
Subjects of FOIA requests considering an AG review
Frame your objection in terms of FOIA exemptions, not responsiveness. The AG can review:
- Whether records have been properly classified (personnel vs. evaluation records).
- Whether redactions are appropriate.
- Whether the Young v. Rice balancing test or the four-part evaluation test has been correctly applied.
- Whether discrete exempt items (PIN, home address) have been properly redacted.
The AG cannot review:
- Whether records are properly identified as responsive to the request.
- Whether the agency's records-search was thorough.
- Whether the requester's intent is improper.
If your concern is responsiveness, raise it directly with the custodian and the requester. The custodian is the right gatekeeper for what is and is not responsive.
Records custodians
When you notify a subject of records that you have located responsive records, be clear about what you have and what you intend to release. The notice should describe the records (categorically) and identify the FOIA basis for release. If the subject objects on responsiveness grounds, evaluate the objection internally and decide whether the records actually fit the request. The AG will not adjudicate this for you.
Document your responsiveness analysis in writing. If a court is later asked to review your release decision, you want a clear record of how you connected the request to the records.
Law-enforcement agencies receiving misconduct-records requests
Be precise in your responsiveness review. A request for "misconduct records resulting in suspension without pay, disciplinary transfer, demotion or dismissal" is more specific than a general "all misconduct records" request. Records that involved misconduct allegations but did not result in those specific disciplines may not be responsive. Records that resulted in a verbal warning or a written reprimand (but not suspension or above) likely fall outside the request.
If you have records that you think might or might not be responsive, you can: (1) include them and let the requester sort through; (2) exclude them with a note explaining the responsiveness call; (3) ask the requester to clarify. The choice has consequences for your liability if you over-release exempt content or under-release responsive content.
FOIA requesters
Frame your requests precisely. Vague requests force the custodian to make responsiveness calls that may not match what you want. Use specific terms (date ranges, types of discipline, specific officer ranks if applicable) to narrow the scope. If you are getting either too few or too many records, refine.
Employment attorneys
If you are advising a client whose records may be released under FOIA, be clear about which channels can address which concerns:
- Exemption analysis (personnel vs. evaluation records, Young test, four-part test): AG review, then state circuit court.
- Responsiveness disputes: custodian directly, then state circuit court if necessary.
- Procedural/redaction errors: AG review, then state circuit court.
Pick the right forum for each concern.
Common questions
The custodian is treating my records as responsive but they don't fit the request. What can I do?
Engage with the custodian directly. Explain why the records don't match the request scope. If the custodian still proceeds, your remedies include a state-court action under FOIA (though this is unusual when the requester actually wants the records).
Why does the AG refuse to address responsiveness?
The AG's quick-review process under § 25-19-105(c)(3)(B)(i) is designed for FOIA-exemption questions, not factual disputes about agency records. The AG doesn't have the time or staff for fact-intensive responsiveness review.
The custodian said they have "releasable records related to me." Is that the actual records, or just a notice?
A notice. The custodian is required to give you advance notice and an opportunity to seek AG review before releasing certain employee-related records. The notice doesn't tell you exactly what will be released; it tells you what category of records exists.
Should I ask the custodian to share the actual records before release?
Yes. You have the right to know what is being released. Ask for a description of the records and (if possible) a copy of the redacted version that will be released. Use this to identify specific exempt items.
What if my records are about a misconduct allegation that was dismissed?
A dismissed allegation may not be responsive to a request for "misconduct resulting in discipline." If it is responsive (because the request was broader), the records would still be subject to FOIA-exemption analysis. Records of investigations that did not result in discipline may not satisfy the four-part evaluation-records test (no suspension or termination), so they could be properly withheld even if responsive.
Can I FOIA-request the request itself?
Possibly. The text of the original FOIA request is itself a public record held by the agency. Requesting a copy can clarify exactly what was asked for, which may help your responsiveness analysis.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the custodian, requester, or subject of certain employee-related records to ask the AG to review whether the custodian's release decision is "consistent with the FOIA." The AG has consistently interpreted this scope narrowly: it covers FOIA-exemption analysis (personnel vs. evaluation records, balancing test, four-part test, redaction propriety), not factual responsiveness disputes (Ops. 2014-110, 2006-136).
The boundary makes sense procedurally. The AG's review is fast and document-based. Responsiveness is a factual question that requires understanding the agency's records, comparing them to the request, and judging whether the records "match." That work is the custodian's responsibility. If the requester or subject disputes the responsiveness call, the standard FOIA enforcement channel (state court action under § 25-19-107) is available.
Citations
- A.C.A. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject right to AG review)
- Ark. Att'y Gen. Ops. 2014-110, 2006-136 (AG review does not address responsiveness)
Source
Original opinion text
Opinion No. 2023-058
July 6, 2023
Ms. Marquita James
1085 Holiday Drive, Apartment 1012
Forrest City, Arkansas 72335
Dear Ms. James:
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 report that someone has made a FOIA request to your employer for "records reflecting misconduct by any ASP sworn personnel from January 1, 2020, until present that results in any of the following forms of discipline: suspension without pay; disciplinary transfer; demotion or dismissal." Your employer notified you that it "determined that there are releasable records related to you" and advised you that you can seek an "Attorney General's Opinion about whether" your employer's "redactions are correct." It appears that the custodian has not actually communicated to you whether the custodian intends to disclose any records and, if so, what those records are. You object, but not because you claim your records are exempt. Rather, you object because you believe your records are not responsive to the request.
This office has consistently opined that the scope of the review available to you under section 25-19-105(c)(3)(B)(i) does not extend to determining whether a custodian has properly identified your records as responsive to the FOIA request. Therefore, I lack the authority to say whether the custodian's decision is consistent with the FOIA.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General