Can a city withhold a former police officer's entire personnel file because his termination was 'unrelated to acts that gave rise to a suspension or termination'?
Apply this to your situation
This page answers the general question as of 2023. Ask about yours and see what current Arkansas law means for your facts, with citations you can check.
Plain-English summary
Bay City Attorney Zachary Morrison asked whether he could withhold the entire personnel file of a former police officer. He said the officer's termination was unrelated to acts that gave rise to a suspension or termination. The Attorney General found the decision to withhold the whole file inconsistent with Arkansas FOIA.
The AG said the custodian's explanation was unclear. If it meant that no document formed a basis for the officer's suspension or termination, that reason could support withholding the whole file only if every document were an employee-evaluation record. After reviewing the file, the AG found nearly every document was instead a personnel record, and the majority of those were disclosable after certain redactions.
The custodian had not classified the records or applied the appropriate disclosure test to each. The AG returned the file so the custodian could make those decisions and referred him to Opinion No. 2023-077 for guidance. This opinion does not order disclosure of any identified document or state what redactions the custodian must make.
What this means for you
Records custodians
Classify records in a personnel file, then apply the appropriate disclosure test to each. A claim about whether records formed a basis for termination does not justify withholding the whole file when many documents are personnel records. The AG's file review found a majority of those records disclosable after redactions, but sent the file back for the custodian to make the required decisions.
FOIA requesters
This opinion supports asking a custodian who withholds an entire personnel file whether the custodian classified its records and applied the appropriate tests. It does not establish that every requested file must be released in whole or in part. Under A.C.A. § 25-19-105(c)(3)(B)(i), a requester, custodian, or subject of certain employment-related records may seek an AG opinion on the custodian's decision.
Common questions
Was withholding the entire Bay officer file consistent with FOIA?
No. The AG found the custodian had neither classified the records nor applied the appropriate disclosure tests, and that nearly every document was a personnel record.
Could an entire personnel file ever be withheld for the reason the custodian suggested?
The opinion says the absence of records forming a basis for suspension or termination could justify withholding the whole file only if every document were an employee-evaluation record. That was not the case here.
Did the AG order specific records released?
No. The AG found that a majority of the personnel records were disclosable after redaction, then returned the file to the custodian to classify and test the records.
Where can the custodian find the classification guidance mentioned here?
The AG referred the custodian to Opinion No. 2023-077, which the office attached for reference. This opinion does not reproduce that earlier opinion's tests.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i) authorizes an AG opinion on a custodian's release decision for certain employment-related records. In this response, the AG states the required sequence: classify records in a personnel file, then apply the appropriate disclosure test. The AG distinguishes personnel records from employee-evaluation records in explaining why the custodian's single reason could not support withholding this whole file.
Citations
- A.C.A. § 25-19-105(c)(3)(B)(i)
- Ark. Att’y Gen. Op. 2023-077
Source
Original opinion text
Opinion No. 2023-110
November 14, 2023
Zachary Morrison
City Attorney, City of Bay
1205 Milo Street
Lake City, Arkansas 72437
Dear Mr. Morrison:
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 employment-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. As the records custodian, you have provided the following background information.
You indicate that someone has submitted a FOIA request for the personnel file of a former police officer who was employed by the City of Bay Police Department. You report that "after careful consideration" you have decided "that the file is not releasable" because although the former police officer was fired from the police department, "his termination was unrelated to any acts that gave rise to a suspension or termination." You have forwarded a copy of the personnel file and asked my opinion on whether the decision to withhold the entire file is consistent with the FOIA.
RESPONSE
Your decision to withhold the entire file is inconsistent with the FOIA. It is not clear to me how the former employee's termination could be "unrelated" to the acts "that gave rise" to his termination. You may mean to say that none of the records in the file formed a basis for the decision to suspend or terminate the former employee. But that reason would be grounds to withhold the entire file only if every document in the file were classified as an employee-evaluation record. After reviewing the file, I believe that is clearly not the case. Instead, nearly every document in the file is a personnel record. And the majority of those are disclosable after certain redactions have been made. The FOIA requires the records custodian to (1) classify the records in a personnel file; and (2) then apply the appropriate test for disclosure. Neither of those decisions has been made here. Therefore, I conclude that your decision is erroneous, and I return the file to you to make both of the foregoing decisions. You may wish to consult Opinion No. 2023-077, which I have attached for your reference, for information about how to make those two sets of decisions.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
What does Arkansas law say today, for your facts?
This opinion is from 2023. Ezel checks the current Arkansas statutes and case law, applies them to your situation, and cites what it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace