Is a list of suspensions and disciplinary actions against Arkansas State Troopers a personnel record or an employee-evaluation record?

Plain-English summary

The Arkansas State Police planned to release a spreadsheet listing current troopers who had been suspended, with incident dates, policy infractions, complaint summaries, and discipline details. The custodian classified it as a personnel record. The AG said that classification was inconsistent with FOIA: because the sheet includes substantive reasons for discipline, it is an employee evaluation record.

Evaluation records require four conditions before disclosure: suspension or termination, administrative finality, a connection between the record and the discipline decision, and a compelling public interest. The AG said at least three likely were met here. He lacked enough information to decide whether each disciplinary incident was administratively final and incapable of administrative reversal or modification. The custodian must assess each incident. If the suspensions are final, the AG said the decision to disclose the list is consistent with FOIA.

What this means for you

Police records custodians

The disciplinary reasons in this spreadsheet make it an evaluation record even though it is formatted as a list. The custodian must apply the evaluation-record test and determine administrative finality for each incident. The opinion does not prescribe a particular entry-by-entry release format or decide the status of any individual appeal.

Troopers and requesters

The AG did not give a final disclosure answer without the finality facts. He found a likely compelling public interest in records reflecting policy violations by law-enforcement officers because of their significant public trust.

Common questions

Is every suspension list an evaluation record?
The AG's classification depends on this list's contents. He distinguishes a bare notice of suspension from one that states the substantive grounds for discipline.

When is disclosure of this list consistent with FOIA? The AG said it would be consistent if the suspensions were administratively final, after the custodian assessed each listed incident under the four-part test.

Did the AG order release of some rows while withholding others? No. He directed the custodian to assess finality for each incident but did not specify a partial-release procedure.

Background and statutory framework

A.C.A. § 25-19-105(c)(1) governs disclosure of employee evaluation records. The AG relies on prior opinions distinguishing suspension notices that give no reason from documents describing grounds for discipline. Footnotes 4–5 cite the four-part test and the public interest in records reflecting law-enforcement policy violations.

Citations

• A.C.A. § 25-19-105(c)(1)
• Ark. Att’y Gen. Ops. 2023-077, 2023-069, 2001-276, 1998-075

Source

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

Original opinion text

Opinion No. 2023-081

August 31, 2023

Colonel Mike A. Hagar, Secretary
Arkansas Department of Public Safety
1 State Police Plaza Drive
Little Rock, Arkansas 72209

Dear Colonel Hagar:

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 law 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 someone has submitted a FOIA request for a list of currently employed Arkansas State Police Troopers “who have previously had a disciplinary action” resulting in a suspension. You intend to disclose a list, which you say is maintained by the Arkansas State Police Office of Professional Standards (“OPS”). The list contains Trooper names, dates of incidents, assignment locations, policy infractions, complaint summaries, disposition details, and the OPS numbers. You have classified this is as a personnel record, the disclosure of which would not be a clearly unwarranted invasion of personal privacy. Two of the employees listed on the spreadsheet object to your decision to release the spreadsheet. You ask whether your decision to disclose these records is consistent with the FOIA.

RESPONSE

In my opinion, your decision to classify the list as a “personnel record” is inconsistent with the FOIA because the record is best classified as an “employee evaluation or job performance record,” not a personnel record. And while these types of records may still be disclosed in limited circumstances, I am missing important information concerning the finality of each disciplinary action listed. Therefore, I cannot determine whether the records here meet all of the elements for disclosure under the FOIA. Colonel Mike A. Hagar, Secretary Arkansas Department of Public Safety Opinion No. 2023-081 Page 2

DISCUSSION

For purposes of FOIA, two distinct groups of records are normally found in employees’ personnel files: personnel records or employee-evaluation records. The test for whether these two types of documents may be released differs significantly.

1. Personnel records. While the FOIA does not define the term “personnel records,” this
   office has consistently opined that personnel records are all records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee. 1

This spreadsheet containing Trooper-suspension information is analogous to a suspension letter. Suspension letters may qualify as a personnel record or as an evaluation record depending on the letter’s contents. This office has consistently opined that a suspension letter qualifies as a personnel record when the letter does not specify the grounds for suspension. 2 But this office has consistently opined that a suspension letter qualifies as an evaluation record when that letter states the grounds for the suspension. 3

Here, the spreadsheet does not simply list names of Troopers who have been suspended. Along with the Troopers’ names, the spreadsheet includes the type of disciplinary action and a summary of the reasons for the disciplinary action associated with each name. This spreadsheet is akin to letters of suspension or disciplinary action containing substantive reasoning for the disciplinary action taken, which makes the list here an evaluation record.

Therefore, in my opinion, the decision to classify this list as a personnel record is inconsistent with the FOIA, and the list’s disclosure should be considered under the test for employee-evaluation records.

2. Employee evaluations. An employee-evaluation records cannot be released unless all
   the following elements have been met:

   1. Suspension or termination. The employee was suspended or terminated;

   2. Administrative finality. The suspension or termination is administratively final
      and is, therefore, incapable of any administrative reversal or modification;

1
See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 202 (Arkansas Law Press, 6th ed., 2017). 2 E.g., Ark. Att’y Gen. Ops. 2023-077, 2023-069, 2015-053.
3
E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension was an “employee evaluation/job performance record” when the letter “detai[ls] the incidents that gave rise to the discipline….”), 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies as a ‘job performance record’….”), 1998-075 (analyzing a list containing law-enforcement officer disciplinary action in the past 5 years). Colonel Mike A. Hagar, Secretary Arkansas Department of Public Safety Opinion No. 2023-081 Page 3

3. Relevance. The records in question formed a basis for the decision to suspend or terminate the employee; and

4. Compelling interest. The public has a compelling interest in the disclosure of the records in question. 4

Here, at least three of the four elements likely are met. First, the provided information indicates the listed employees were suspended. Second, the records are relevant to the suspension because they detail grounds for the suspension. Third, the public has a compelling interest in the disclosure of the records in question because, as this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect violations of office policy. 5

But I lack sufficient information to determine the administrative finality of each of the listed disciplinary incidents. The custodian will need to assess each incident listed to determine whether the matter is administratively final and incapable of any administrative reversal or modification. If the suspensions are administratively final, then the decision to disclose the list is consistent with the FOIA.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

4
A.C.A. § 25-19-105(c)(1).
5
Ark. Att’y Gen. Ops. 2023-071, 2023-013, 2014-129, 2006-026.