Can a city redact a former police officer's records with whiteout, and can it withhold his termination letter and administrative-leave letter under FOIA?

Plain-English summary

Bay City Attorney Zachary Morrison asked the Attorney General to review decisions on a former police officer's personnel file. The custodian had marked one group of records for disclosure with privacy redactions and another for withholding. The AG said the decisions were only partly consistent with Arkansas FOIA. The opinion does not describe an earlier submission or say the custodian resubmitted the file.

The AG classified every record forwarded for review as a personnel record. He approved the planned disclosures and redacting personal details such as date of birth and Social Security number. He also approved withholding the documents marked "inappropriate for release" except for two: a termination memo that merely stated the fact of termination, and a letter placing the officer on paid administrative leave pending investigation. The latter was non-disciplinary even though it mentioned allegations. The AG concluded both letters should be disclosed because disclosure would not be a clearly unwarranted invasion of personal privacy.

The redaction content was acceptable, but the apparent use of whiteout was not. A.C.A. § 25-19-105(f)(3) requires the amount and place of each redaction to be visible. For paper records, the AG recommended a black marker rather than whiteout.

What this means for you

Records custodians

Classify each responsive record and apply the test for that type. A memo that only states a termination occurred was a personnel record in this opinion. A letter documenting non-disciplinary administrative leave remained a personnel record even though it included allegations. For paper records, make redactions in a way that leaves their location and size apparent; the AG identifies a black marker as the surest method.

FOIA requesters

The AG concluded that the two specified letters should be disclosed. He also upheld the custodian's other planned withholdings and privacy redactions. If you dispute a decision on certain employment-related records, A.C.A. § 25-19-105(c)(3)(B)(i) allows the custodian, requester, or subject to seek an AG opinion.

Common questions

Did the AG reject every withholding in the Bay file?
No. He found the decisions to withhold the group marked "inappropriate for release" consistent with FOIA except for the termination memo and administrative-leave letter.

Why was the termination memo disclosable?
It stated the fact of termination without explaining the reasons. The AG classified it as a personnel record and found its disclosure would not clearly and unwarrantedly invade personal privacy.

Why was the administrative-leave letter disclosable although it mentioned allegations? It memorialized a paid, non-disciplinary suspension pending the outcome of investigations. The AG said that made the whole letter a personnel record, including the allegations it contained, and required disclosure on these facts.

Why was whiteout rejected?
It hid the amount and place of the removed text. A.C.A. § 25-19-105(f)(3) requires both to remain apparent.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) opens personnel records to inspection except where disclosure would clearly and unwarrantedly invade personal privacy. The opinion cites Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), for the balance of personal privacy and public access. Employee-evaluation records are subject to the different four-part test in A.C.A. § 25-19-105(c)(1). The AG determined that every record forwarded in this request was a personnel record.

A.C.A. § 25-19-105(f)(3) governs how redactions are shown. The AG's objection was to the method of redaction, not the decision to remove the personal identifiers discussed in the request.

Citations

• A.C.A. § 25-19-105(b)(12)
• A.C.A. § 25-19-105(c)(1)
• A.C.A. § 25-19-105(c)(3)(B)(i)
• A.C.A. § 25-19-105(f)(3)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

Opinion No. 2023-111
November 21, 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 the former officer was “placed on administrative leave pending an internal investigation.” At the conclusion of the investigation, the city “found no policy violations” and “opted to terminate” the employment of the former officer “based on the City’s at-will employment policy.” You have provided the set of records you believe are responsive to the request, and you have divided those records into two groups:

• Records to be disclosed: The first group consists of records that you believe are “appropriate for release under FOIA,” with certain redactions for “SSN, DOB, DLN, and other information that,” if disclosed, could constitute an unwarranted invasion of the former officer’s personal privacy.

• Records to be withheld: The second group consists of records that you believe to be “inappropriate for release.”

You ask whether these decisions are consistent with the FOIA. Zachary Morrison City Attorney, City of Bay Opinion No. 2023-111 Page 2

RESPONSE
In my opinion, your decisions are only partly consistent with the FOIA. Some of the records you intend to withhold should be disclosed. And the manner, as opposed to the content, of your redactions is inconsistent with the FOIA. DISCUSSION

For purposes of the FOIA, two groups of records are normally found in employees’ personnel files: “personnel records” or “employee evaluation or job performance records.” These two sets of records’ definitions and tests for disclosure differ 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 A personnel record is open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 2 While the FOIA does not define the phrase “clearly unwarranted invasion of personal privacy,” the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public’s interest in accessing the records against the individual’s interest in keeping them private. 3 The balancing test, which takes place with “a thumb on the scale” in favor of disclosure, has two steps. 4 First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest. 5 If the privacy interest is minimal, then the thumb on the scale in favor of disclosure tips the balance to require disclosure. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public’s interest in disclosure. 6
2. Employee evaluations. The second relevant exception is for “employee evaluation or job
   performance records,” which the FOIA likewise does not define. But the Arkansas Supreme Court adopted this office’s view that the term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee’s performance or lack of

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 A.C.A. § 25-19-105(b)(12).
3
308 Ark. 593, 826 S.W.2d 252 (1992).
4
Watkins, et al., at 208.
5
Young, 308 Ark. at 598, 826 S.W.2d at 255.
6
Id., 826 S.W.2d at 255.
Zachary Morrison
City Attorney, City of Bay
Opinion No. 2023-111
Page 3

performance on the job. 7 This exception includes records that were generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 8 If a document qualifies as an employee-evaluation record, the document cannot be released unless all the following elements have been met:
• Suspension or termination. The employee was suspended or terminated;

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

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

• Compelling interest. The public has a compelling interest in the disclosure of the records in question. 9

3. Application. Under the foregoing definitions, every record you have forwarded to me for review
   is a personnel record. Therefore, every document must be disclosed unless doing so constitutes a clearly unwarranted invasion of the former officer’s personal privacy, or a more specific provision of Arkansas law requires the document to be withheld.

In my opinion, your decision to disclose the set of records you have marked “appropriate for release” is consistent with the FOIA. Further, your decisions to redact the former officer’s date of birth, Social Security number, etc. are consistent with the FOIA. Under A.C.A. § 25-19-105(f)(3), redactions must be made in such a way that one can see both the “amount” and “place” of the redaction. The surest way to comply with these requirements when redacting from paper documents is to use a black marker—not whiteout, as you have apparently done here.

Your decision to withhold the set of records you have marked as “inappropriate for release” is consistent with the FOIA, with two exceptions. Your decision to withhold the “termination memo” is not consistent with the FOIA. This office has consistently opined that when a letter of termination merely reflects the fact of termination, without elaborating on the reasons for the termination, the letter is properly classified as a “personnel record.” 10 Since the letter at issue here

7
Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93; see also Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s office); see, e.g., Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, and 93-055. 8 See Ark. Att’y Gen. Op. 2015-057 (collecting citations).
9
A.C.A. § 25-19-105(c)(1).
10
See, e.g., Ark. Att’y Gen. Ops. 2023-041, 2013-155.
Zachary Morrison
City Attorney, City of Bay
Opinion No. 2023-111
Page 4

merely states the fact of termination, the letter is a personnel record whose disclosure would not constitute a clearly unwarranted invasion of personal privacy. Therefore, your decision to withhold it from disclosure is not consistent with the FOIA.

Likewise, your decision to withhold what you describe as the “letter of administrative leave” is also not consistent with the FOIA. This office has long concluded that when a suspension or termination letter recounts the grounds for the adverse-employment action, that letter qualifies as an employee evaluation. 11 But those opinions do not apply here because they all relate to disciplinary suspensions. The suspension at issue here is purely administrative and non-disciplinary, something the letter notes when it states that the investigation has not been completed: “[P]lease be advised that you are placed on paid administrative leave pending the outcome of internal and external investigations.” (Emphasis added.) If an employer memorializes an administrative suspension in a letter and states the grounds for the administrative suspension, the suspension is still administrative in nature—not evaluative or disciplinary. Therefore, the letter as a whole is a personnel record, even though it includes the allegations that caused the administrative suspension. Further, in my opinion, the FOIA requires the letter’s disclosure because doing so would not be a clearly unwarranted invasion of personal privacy.

Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

11
See, e.g., Ark. Att'y Gen. Op. 2023-077 (and opinions cited therein).