Under Arkansas FOIA, can a city withhold a letter notifying a police officer of his administrative reassignment pending an internal investigation?

Plain-English summary

Alexander's city attorney asked whether a letter notifying a law-enforcement officer of an internal investigation and describing a reassignment could be withheld under Arkansas FOIA. The custodian had treated it as an employee-evaluation record because it included allegations of wrongdoing. The Attorney General disagreed: this letter documented an administrative, non-disciplinary reassignment pending investigation, not an evaluation of the officer's performance.

The AG classified the whole letter as a personnel record despite its mention of allegations. He then applied the personnel-records privacy balance and concluded that this letter should be disclosed in its entirety. Even assuming some privacy interest in the allegations, he found it far outweighed by the presumption favoring disclosure and the public's interest in knowing allegations that a law-enforcement official may have violated departmental policy.

The opinion concerns this one letter. It does not decide how every reassignment, transfer, or leave letter should be classified or whether other documents in the investigation should be released.

What this means for you

FOIA requesters

If a custodian withholds an administrative reassignment letter solely because it recounts allegations, this opinion offers a relevant example: the AG classified the Alexander letter by the non-disciplinary action it documented and found disclosure appropriate after the privacy balance. The result depends on the record and facts before the custodian.

Records custodians and city attorneys

Determine whether a letter records a disciplinary evaluation or an administrative action pending an investigation. The AG said mentioning allegations did not turn this non-disciplinary reassignment letter into an evaluation record. After classification, apply the proper disclosure test. He referred the custodian to Opinion No. 2023-077 for the fuller explanation of both record categories and tests.

Public employees

The AG found this letter disclosable in full, including the allegations it summarized. He considered a possible privacy interest but found it outweighed on these facts. The opinion makes no finding that every allegation in every law-enforcement personnel record is disclosable.

Common questions

Why was the letter a personnel record?
It was created to notify the officer of an administrative, non-disciplinary reassignment while misconduct allegations were investigated, not to evaluate performance. The letter's description of those allegations did not change the AG's classification.

Did the AG require redacting the allegations?
No. Applying the personnel-records balancing test, he concluded the letter should be disclosed in its entirety.

Does the result govern every reassignment or leave letter? No categorical rule appears in the opinion. The AG analyzed the particular Alexander letter and its apparent temporary reassignment pending investigation.

Did the AG decide whether the investigative file must be released? No. The request and opinion centered on the written directive, and the AG applied the relevant tests to that letter.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) permits an AG opinion about a custodian's disclosure decision for certain employee-related records. This opinion distinguishes personnel records from employee-evaluation records and directs readers to Opinion No. 2023-077 for the detailed classification and disclosure framework.

The AG says letters recounting grounds for disciplinary suspension or termination can be evaluation records, but this letter memorialized a non-disciplinary administrative reassignment. He applied the personnel-records balancing test to the allegations it contained and found the public interest sufficient to require disclosure of the whole letter.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i)
• Ark. Att’y Gen. Op. 2023-077
• Ark. Att’y Gen. Op. 2014-110
• Ark. Att’y Gen. Op. 2007-311

Source

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

Original opinion text

Opinion No. 2023-117
December 5, 2023
Richard “Chris” Madison, Esq.
Alexander City Attorney
234 Oaklawn Circle
Little Rock, Arkansas 72206
Dear Mr. Madison:
You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the attorney for 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. As the records custodian, you have provided the following background information. You report that someone has made a FOIA request for, among other things, any “written directive placing” a certain law enforcement officer on “leave or suspension.” Your correspondence includes a copy of the relevant letter, which appears to serve two purposes: (1) it notifies the employee that “an internal investigation has been opened” regarding a specific event; and (2) it describes the duties to which the employee is being reassigned. Although it is not entirely clear from the letter, this reassignment appears to be temporary pending the outcome of the internal investigation. You have reviewed the letter and determined that if it is best classified as a “personnel record,” the letter would need to be disclosed. In contrast, you have concluded that if the letter is best classified as an “employee-evaluation record,” the letter is exempt from disclosure because the employee “has not been suspended or terminated.” Instead, you report, the employee has merely received “notice[] that allegations of wrongdoing have been made and that an investigation is ongoing.” You indicate that, while you have some doubt about how to classify the letter, you believe it is an employee evaluation and cannot be disclosed. You ask me to review these decisions to opine on whether they are consistent with the FOIA. RESPONSE In my opinion, the letter is best classified as a personnel record because, although it was created by the employer, it was not created to evaluate the employee. Instead, the letter notifies the employee of an administrative, non-disciplinary action being taken while allegations of Richard “Chris” Madison, Esq. Alexander City Attorney Opinion No. 2023-117 Page 2

misconduct are being investigated. Further, the test for the disclosure of personnel records indicates that the letter should be disclosed in its entirety. 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. For your reference, I have enclosed Opinion No. 2023-077, which explains the law governing the classification of each set of records and the appropriate tests to apply after having classified the records. Rather than repeat that explanation here, I will simply apply it to the letter at issue. I believe the custodian’s decision to withhold the letter from disclosure is inconsistent with the FOIA. The custodian’s decision is based on the test for the disclosure of employee-evaluation records. But, in my opinion, that is not the proper test because the letter is not an employee- evaluation record. The custodian appears to have classified the letter as an employee-evaluation record because it summarizes the allegations that led to the administrative suspension. 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. 1 But those opinions do not apply here because they all relate to disciplinary actions. The letter at issue here memorializes a purely administrative and non-disciplinary decision to reassign the employee pending the outcome of the investigation. If an employer memorializes such an administrative action in a letter and states the grounds for the action, the action is still administrative—not evaluative or disciplinary. This office has long held that letters reflecting these sorts of administrative actions are best classified as personnel records. 2 Therefore, the letter as a whole is a personnel record, even though it includes the allegations that caused the administrative suspension. The next question is whether the personnel records balancing test—which is explained in Opinion No. 2023-077—requires the allegations to be redacted. Even assuming the employee has some privacy interest in the grounds for his administrative suspension, in my opinion that interest is far outweighed by the conjunction of the “thumb on the scale favoring disclosure” and the public’s interest in knowing allegations that a law-enforcement official may have violated departmental policy. 3

1
See, e.g., Ark. Att’y Gen. Op. 2023-069 (and opinions cited therein).
2
See, e.g., 2023-077, 2014-110, 2007-311.
3
See Ark. Att’y Gen. Ops. 2018-023 (concluding that the personnel records balancing test requires the disclosure of information about conduct that was “potentially unlawful” because, in part, the public’s interest was “substantial”), 1998-260. Richard “Christ” Madison, Esq. Alexander City Attorney Opinion No. 2023-117 Page 3

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

TIM GRIFFIN
Attorney General