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'?
Plain-English summary
Bay City Attorney Zachary Morrison received a FOIA request for the entire personnel file of a former Bay police officer. He decided to withhold the entire file. His reasoning, as he explained it, was that "his termination was unrelated to any acts that gave rise to a suspension or termination." Morrison forwarded the file to the AG and asked whether the blanket withholding was consistent with FOIA.
The AG concluded the blanket withholding is inconsistent with FOIA. Three problems:
1. The reasoning does not parse. It is not clear how a former employee's termination could be "unrelated" to the acts that gave rise to his termination. Possibly Morrison meant that none of the documents in the file formed a basis for the termination decision, but that is not what he wrote.
**2. Even if Morrison meant "none of the documents formed a basis for the termination," that reasoning would only work if every document in the file were an employee-evaluation record. Then the four-element test of A.C.A. § 25-19-105(c)(1) would apply, and missing the "relevance" element (the records formed a basis for the action) would mean the documents stay confidential. But after the AG reviewed the file, "nearly every document in the file is a personnel record." Personnel records get a different test (the Young v. Rice balancing test), and most personnel records about police officers are disclosable.
3. The custodian skipped the required two-step process. Under FOIA, a custodian must (1) classify each record as a personnel record or an employee-evaluation record, and then (2) apply the appropriate test. Morrison did neither. He blanket-withheld.
The AG returned the file to Morrison with instructions to do the two-step analysis. The opinion pointed Morrison to Op. 2023-077, an earlier opinion explaining the classification rules and the appropriate tests in more detail.
This opinion was followed shortly by Op. 2023-111, in which Morrison resubmitted the same file with classifications and the AG addressed the specific records.
What this means for you
FOIA requesters
If a custodian denies your entire records request with a single-sentence rationale, you have grounds to push back. Arkansas FOIA requires document-by-document classification and the application of the right test to each. A blanket "the whole file is exempt" answer is not a legally valid response.
If you receive a denial like this, request an AG opinion under A.C.A. § 25-19-105(c)(3)(B)(i), which lets the custodian, requester, or subject seek the AG's view on whether the custodian's release decision is consistent with FOIA. The AG will review the file directly.
City attorneys and records custodians
Two-step process is mandatory:
- Go through the file document by document. For each, determine: is this a personnel record (any record about an individual employee, not created to evaluate the employee on a specific incident)? Or is it an employee-evaluation record (created at the employer's behest to evaluate the employee on a specific incident)?
- Apply the right test:
- Personnel records: Young v. Rice balancing (privacy interest vs. public interest, with thumb on the scale toward disclosure).
- Evaluation records: A.C.A. § 25-19-105(c)(1) four-element test (suspension/termination, finality, relevance, compelling public interest).
A blanket withholding short-circuits both steps and is not consistent with FOIA. Your professional obligation includes doing this analysis.
HR managers and police chiefs
Build the document-by-document analysis into your standard records-request response procedure. When a request comes in:
- Pull the file.
- Categorize each document.
- Apply the test.
- Document your reasoning for each call.
The reasoning matters. If you face an AG opinion request or court challenge, your written rationale is what gets reviewed. "I thought none of it was disclosable" is not a defensible position.
News media
A categorical denial of a personnel-file request for a former public employee is almost always vulnerable. Push back on the denial, request an AG opinion if needed, and ask the custodian to provide a per-document rationale. The AG's pattern in cases like this (Op. 2023-110, 2023-111, 2023-117, 2023-120) is to require disclosure of personnel records about law-enforcement officers.
Civil rights attorneys
This opinion is useful citation when a client's records request has been denied wholesale. The two-step framework is well-established and the AG enforces it. Blanket withholding should never be the final answer.
Common questions
What is a personnel record?
A record about an individual employee that is not an evaluation. Personnel records include things like personnel action sheets, contracts, payroll records, salary information, contact information, and similar documents.
What is an employee-evaluation record?
A record created by or at the employer's behest to evaluate an employee's performance on a specific incident. Includes performance reviews, internal investigation reports, disciplinary letters that detail incident facts.
Which test applies to which type?
- Personnel records: A.C.A. § 25-19-105(b)(12). Open to inspection unless disclosure would be a "clearly unwarranted invasion of personal privacy." Use the Young v. Rice balancing test.
- Evaluation records: A.C.A. § 25-19-105(c)(1). Closed unless all four elements are met (suspension/termination, finality, relevance, compelling public interest).
Why are most personnel records about police officers disclosable?
Because the public's interest in transparency about sworn officers is treated as substantial under Arkansas case law and AG opinions. Even a "greater than minimal" privacy interest in the officer's records typically loses to that public interest. (See Op. 2023-117 and Op. 2023-120 for parallel reasoning.)
Can the custodian redact certain pieces of information?
Yes. Even when a record is disclosable, specific pieces of information that would be a clearly unwarranted invasion of privacy (Social Security numbers, home addresses, dates of birth, etc.) can be redacted. The redaction must show both the amount and place of the redaction (A.C.A. § 25-19-105(f)(3)). Op. 2023-111 addresses this for the same Bay PD file.
What happens after the AG returns the file?
The custodian must redo the analysis and make new release decisions. The opinion has no further enforcement mechanism, but a requester who is denied again may go to court for a writ of mandamus or sue for compliance under FOIA.
Does this apply to all public employees?
Yes. The two-step framework applies to any FOIA request for an employee's personnel records. Law-enforcement records typically have stronger public interest, but the framework itself applies across all public employment.
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 seek an AG opinion on whether the custodian's release decision is consistent with FOIA.
Two-step framework. AG opinions consistently require classification first and then application of the appropriate test. Op. 2023-077 is the foundational explanation of the framework and is incorporated by reference here.
Personnel records test. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Two-step balancing: (1) is the privacy interest greater than minimal? (2) if yes, balance against public interest, with thumb on the scale toward disclosure.
Employee-evaluation records test. A.C.A. § 25-19-105(c)(1). Four-element conjunctive test: suspension or termination, administrative finality, relevance, and compelling public interest.
Compelling public interest in police records. Long-standing AG opinions hold that records about law-enforcement officers reflecting potential policy violations carry strong compelling-interest findings.
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records, four-element test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request procedure)
- A.C.A. § 25-19-105(f)(3) (redaction format)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- 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