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 filed a complaint against the Conway Police Department and the Chief of Police. The city investigated, and no one was suspended or terminated. The complaining officer then filed a FOIA request for "all documents associated with the complaint investigation."
Conway's HR department took a blanket approach: it classified all responsive records as "personnel and/or employee evaluation or job performance" records of the police chief and decided to withhold everything. The HR manager asked the AG whether that decision was consistent with FOIA.
The AG said no on three grounds.
First: blanket classification is the wrong methodology. Each record must be individually reviewed and classified as either a personnel record or an evaluation record (or as a "mixed record"). Without record-by-record review, the custodian cannot apply the right test, and the AG cannot review the analysis.
Second: the requester gets his own records. Under A.C.A. § 25-19-105(c)(2), public employees are entitled to obtain their own personnel records and evaluation records, even if those records would otherwise be exempt from public release. Some of the responsive records here are statements made by the complaining officer, which are his own personnel records. He gets them regardless of any exemption analysis.
Third: mixed records require piece-by-piece analysis. Some of the records may be "mixed records":
1. Records that constitute multiple persons' evaluations.
2. Records that are one person's evaluation and another person's personnel record.
3. Records that are multiple persons' personnel records.
Each piece of information has to be analyzed for whose record it is and which test applies. Blanket withholding because some part of a record might involve the chief's evaluation does not justify withholding the parts that are the complaining officer's own statements.
The chief's records are still potentially exempt. Records that genuinely constitute the chief's evaluation (and where no one was suspended or terminated) likely fail the four-prong test for evaluation-records release. So those records or those portions can be withheld from a public requester. But the complaining officer is not a public requester for purposes of his own statements; he is the subject of those statements.
The deeper takeaway: Arkansas FOIA does not allow agencies to use blanket exemption claims to deny requesters access to their own records. The subject-access right under § 25-19-105(c)(2) is robust, and applies separately for each piece of information in mixed records. Custodians need to do the individual record review the statute requires.
What this means for you
HR managers and records custodians at Arkansas public agencies
When you receive a FOIA request from a public employee, you cannot reflexively classify everything as exempt. You must:
1. Review each responsive record individually.
2. Classify each as personnel, evaluation, or mixed.
3. Apply the appropriate disclosure test.
4. Recognize the requester's subject-access rights under § 25-19-105(c)(2).
5. For mixed records, identify each component and apply the right test to each.
If you do not do this work, your decision is vulnerable to challenge. The AG opinion process under § 25-19-105(c)(3)(B)(i) gives requesters and subjects a relatively quick path to challenge wholesale exemption claims.
Police officers and other public employees who file internal complaints
You are entitled to your own statements and submissions in any investigation, regardless of whether the overall investigation file is exempt. If you make a FOIA request and your agency stonewalls with a blanket exemption, cite Op. 2023-032 and A.C.A. § 25-19-105(c)(2).
The complaint-investigation file may include other employees' statements (witnesses, the subject of the complaint, supervisors). Those may not be releasable to you on the same theory. But your statements are yours.
Whistleblowers and complainants in Arkansas public agencies
The records of your complaint and the agency's investigation are potentially within reach. The agency cannot use the privacy interests of the subject of the complaint to bar your access to your own contributions to the file. If retaliation or other consequences flow from the complaint, the records of your participation become important to your defense.
Document everything contemporaneously. Copy your own submissions before sending them to HR, so you have a parallel record.
Civil rights and employment attorneys
Op. 2023-032 supports plaintiffs in employment and civil rights cases who need access to records of internal investigations. The subject-access right is statutorily robust. When advising clients to make pre-litigation FOIA requests, draft them to specifically capture the client's own statements and submissions, separately from any general complaint-investigation request.
The mixed-records framework is also useful: some pieces of an investigation file may be releasable, and a careful request can extract those pieces.
News reporters covering police accountability
When you cover a complaint against a police department or chief that did not result in discipline:
- The general investigation records may be exempt under the four-prong test (no suspension or termination = first prong fails).
- The complaining employee may have their own access rights under § 25-19-105(c)(2). Sources who participated in the investigation can speak to you voluntarily.
- The procedural records (existence of the complaint, general topic, resolution status) are typically releasable under personnel-records balancing.
Government attorneys advising agencies
Train custodians on the record-by-record review requirement. Train them on the subject-access rule. The AG opinion line on this is clear and consistent (Op. 2023-032 cites Ops. 2023-012, 2022-040, 2020-037, 2018-025 among others).
When in doubt, request an AG opinion before responding. The AG's office processes these on tight timelines and the opinion provides legal cover.
Common questions
Why can the complaining officer get his own statements?
A.C.A. § 25-19-105(c)(2) specifically grants public employees the right to obtain their own personnel records and evaluation records, regardless of whether those records would otherwise be exempt from public release. The statute treats subject-access as a separate right from public-disclosure analysis.
Can the chief's evaluation records still be withheld?
Yes. If no one was suspended or terminated, the four-prong evaluation-records test fails on the first prong. Those records can be withheld from public release. But the analysis is per-record and per-portion, not wholesale.
What if a record contains both my statement and the chief's evaluation?
That is a mixed record. The custodian must redact the parts that are the chief's evaluation (which fail the four-prong test) and release the parts that are your personnel record (under § 25-19-105(c)(2)). Each piece of information gets its own analysis.
What if my agency continues to refuse?
You can request an AG opinion under § 25-19-105(c)(3)(B)(i). You can also file a FOIA enforcement action in court. Arkansas FOIA provides for civil enforcement and attorney fees in some cases.
Does this rule apply to non-public-employee requesters?
The subject-access rule under § 25-19-105(c)(2) is specifically for public employees seeking their own records. A non-employee public requester does not have the same right, though they have the standard public-disclosure analysis under personnel and evaluation tests.
Can the agency redact my statements before giving them to me?
The agency can redact information that is not part of your record (e.g., personal contact information of other employees under § 25-19-105(b)(13)). But the agency cannot redact your own statements out of your own statements based on a privacy interest in the chief's evaluation.
What if the investigation involved confidential interviews?
Confidentiality promises made during an investigation do not override the FOIA framework. The same rules apply. Investigators should not promise confidentiality they cannot deliver.
Background and statutory framework
Arkansas FOIA distinguishes between personnel records, evaluation records, and mixed records, with three different disclosure tests:
- Personnel records (A.C.A. § 25-19-105(b)(12)): Releasable unless disclosure would be a clearly unwarranted invasion of privacy. Two-step Young v. Rice balancing test.
- Evaluation records (A.C.A. § 25-19-105(c)(1)): Releasable only if four-prong test is met (suspension/termination, finality, basis, compelling public interest).
- Mixed records (multiple persons' records combined): Each component gets its own analysis.
The subject-access provision (A.C.A. § 25-19-105(c)(2)) creates a separate right for the subject of records. The text: "Any personnel or evaluation records exempt from disclosure shall nonetheless be made available to the person about whom the records are maintained."
Multiple AG opinions establish the record-by-record review requirement: Ops. 2023-012, 2022-040, 2020-037, 2018-025, among others.
The mixed-records framework is articulated in Op. 2015-057 and other prior opinions.
The presumption of public-record status (rebuttable) comes from Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007).
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(1) (evaluation records exemption)
- A.C.A. § 25-19-105(c)(2) (subject-access right)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion process)
- Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Ark. Att'y Gen. Ops. 2023-012, 2022-040, 2020-037, 2018-025 (record-by-record review)
- Ark. Att'y Gen. Op. 2004-181 (subject-access)
- Ark. Att'y Gen. Op. 2015-057 (mixed records framework)
Source
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
- 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 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. 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 discuss whether any exceptions prevent the documents' disclosure.
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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.
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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.
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. 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.
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. 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