Can the City of Conway withhold all records of an internal investigation when the requester is the complainant himself?

Plain-English summary

A Conway police officer complained about the police department and its chief. The city investigated; no one was suspended or terminated. The complaining officer then requested all documents associated with the investigation. The city's HR manager treated the responsive records as personnel or evaluation records of the chief and planned to withhold them all.

The Attorney General said that blanket decision was inconsistent with FOIA. The city appeared not to have reviewed and classified each record individually. That review matters because personnel records and employee-evaluation records have different disclosure tests. At least some documents appeared to be the complaining officer's own statements. The AG classified those statements as the officer's personnel records and said he was entitled to receive them under A.C.A. § 25-19-105(c)(2).

Some documents might be “mixed records” involving more than one employee. The AG identified three possibilities: more than one person's evaluation, one person's evaluation combined with another person's personnel record, or more than one person's personnel record. He told the custodian to consider whether portions that might otherwise qualify for release are another employee's records and apply the applicable disclosure tests to those portions. He did not decide which records of the chief could be withheld or order particular redactions.

What this means for you

Records custodians and HR staff

Review each requested document before choosing a personnel-record or evaluation-record disclosure test. If it contains information about more than one employee, consider whose record each portion is and apply the appropriate test. In this case, labeling the whole investigation as the chief's file missed the complaining officer's own statements.

Public employees requesting their own records

The AG said the complaining officer was entitled to the statements he made because they were his personnel records. If you request an investigation file that includes your own statements, identify them for the custodian and cite A.C.A. § 25-19-105(c)(2). This opinion does not say that being a complainant gives you every document in the investigation.

Public requesters and reporters

The opinion rejects the city's blanket withholding decision. It does not decide whether the chief's records, or every other document in the investigation, must be released to a member of the public. The custodian must classify the records and apply the appropriate tests first.

Common questions

The investigation ended without suspension or termination. Did the AG decide that the chief's evaluation records are exempt? No. The opinion reports that no one was suspended or terminated, but does not apply the evaluation-record disclosure test to specific documents or decide that the chief's records may be withheld.

Can the complaining officer obtain his own statements?
Yes. The AG said at least some supplied records appeared to be his own statements, classified them as his personnel records, and said he was entitled to them under A.C.A. § 25-19-105(c)(2).

What if one document concerns both the complainant and the chief? The AG said the custodian should consider whether portions are another employee's personnel or evaluation records and apply the applicable tests. He did not prescribe a specific redaction or disclosure outcome for such a document.

Does this opinion require release of the entire complaint file? No. It rejects withholding every record as a group and identifies the complaining officer's own records as releasable to him. The other records need individual review.

Background and statutory framework

Footnotes 4 and 5 quote the separate FOIA provisions for personnel records, A.C.A. § 25-19-105(b)(12), and employee-evaluation records, § 25-19-105(c)(1). Footnote 7 quotes § 25-19-105(c)(2): “Any personnel or evaluation records exempt from disclosure shall nonetheless be made available to the person about whom the records are maintained.” The AG relied on that subject-access provision for the officer's statements. Footnote 9 cites Opinion 2015-057 for the mixed-records framework.

Citations

• A.C.A. § 25-19-103(7)(A)
• A.C.A. § 25-19-105(b)(12), (c)(1), (c)(2), (c)(3)(B)(i)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Arkansas Attorney General Opinions 2023-012, 2022-040, 2020-037, 2018-025, 2004-181, and 2015-057

Source

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

Original opinion text

Opinion No. 2023-032

May 5, 2023

Lisa Mabry-Williams
City of Conway
Human Resources Department
1111 Oak Street
Conway, AR 72032

Dear Ms. Mabry-Williams:

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). 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.

You state that a police officer employed with the City of Conway filed a complaint against the Conway Police Department and the Conway Chief of Police. You conducted an investigation into the complaint, which did not result in anyone being suspended or terminated. The complaining officer then made a FOIA request for “all documents associated with the complaint investigation.” You have provided copies of the records you deem responsive to the request, including emails and investigative notes. You have determined “that these records constitute personnel and/or employee evaluation or job performance of the Police Chief and are not subject to release under FOIA.” You ask whether your decision to withhold the records is consistent with the FOIA.

RESPONSE

In my opinion, your decision to withhold all of the requested records is inconsistent with the FOIA. At least some of the requested records are the complaining officer’s own records, which he is entitled to receive. Additionally, there are likely other reasons your decision is inconsistent with the FOIA, which are discussed below.

DISCUSSION

1. General rules. 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

Lisa Mabry-Williams
City of Conway
Human Resources Department
Opinion No. 2023-032
Page 2

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 City of Conway, which is a public entity and is subject to the FOIA. And the records you have attached appear to be public records. 1 Because the records are held by a public entity, they are presumed to be public records, 2 although that presumption is rebuttable. 3 Accordingly, given that I have no information to suggest that the presumption can be rebutted, I will discuss whether any exceptions prevent the documents’ disclosure.

2. 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” 4 or “employee evaluation or job performance records.” 5 The test for whether these two types of documents may be released differs significantly. 6 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.

3. Application. In this case, it appears that you have not individually reviewed and
   classified each record as a personnel record or an employee-evaluation record. Such review and classification are essential so that you may apply the correct test to determine which records should be released—and so that I can fully review your decision.

1
The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium required by law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions…carried out by a public official or employee….” A.C.A.§ 25-19-103(7)(A) (Supp. 2021). 2 Id.
3
See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions,”’ citing Ark. Att’y Gen. Op. 2005-095). 4 A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter…[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 5 A.C.A. § 25-19-105(c)(1): “[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” 6 Numerous opinions issued by this office detail the tests for release for both personnel records and employee- evaluation records. See, e.g., Ark. Att’y Gen. Ops. 2023-012, 2022-040, 2020-037, 2018-025.

Lisa Mabry-Williams
City of Conway
Human Resources Department
Opinion No. 2023-032
Page 3

Furthermore, the FOIA specifically provides that public employees are entitled to obtain their own records, regardless of whether those records are classified as personnel or employee-evaluation records. 7 At least some of the records you have provided appear to be the requester’s own statements. As such, they constitute his personnel records, and he is entitled to them. 8

Finally, it appears that some of the responsive records may be “mixed records,” which means that they 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. 9 Accordingly, you should consider whether any portions of records that might otherwise qualify for release constitute another employee’s evaluation or personnel records. If so, you must apply the applicable tests for disclosure to those portions of the records.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

7
See A.C.A. § 25-19-105(c)(2): “Any personnel or evaluation records exempt from disclosure shall nonetheless be made available to the person about whom the records are maintained.” 8 See, e.g., Ark. Att’y Gen. Op. 2004-181.
9
See, e.g., Ark. Att’y Gen. Op. 2015-057.