Can a city release police misconduct termination records and bodycam footage when officers have appealed terminations to the city council and a criminal investigation is ongoing?

Plain-English summary

Helena-West Helena received an Arkansas FOIA request for personnel files of officers terminated in 2024 after an alleged police-misconduct incident and for related bodycam footage. The city attorney reported that some of four terminated officers sought city-council review. The council could overrule a termination by a two-thirds vote. He also reported that the footage was part of an ongoing prosecutor investigation and had been forwarded to Arkansas State Police for possible prosecution.

The Attorney General did not decide whether to release the requested records. The city had not said how it classified the records or whether it intended to disclose them, leaving no custodian decision for him to review. He instead explained that personnel records and employee-evaluation records have different FOIA release tests. For evaluation records, one condition is a final administrative resolution of a suspension or termination. A decision remains open while requested administrative review could reverse or modify it.

On the facts reported, the Attorney General said it “suggests that at least one officer's termination is not yet final” because of upcoming council review. He expressly limited that observation to records classified as employee-evaluation records; it does not govern personnel records. He also declined to decide whether the ongoing-criminal-investigation exception justified withholding the bodycam footage because that exception was outside his review authority.

What this means for you

City records custodians

Classify each requested record before applying a release test. For an employee-evaluation record, determine whether the related discipline can still be administratively reversed or modified. The Attorney General did not classify Helena-West Helena's files and did not make the city's release decision for it. A pending review is not a blanket hold on personnel records or every document related to the incident.

Officers and records requesters

The opinion identifies administrative finality as one condition for releasing evaluation records. It says a review period that expired without a request, or a formal waiver of review, can make a disciplinary decision final. Whether any particular requested record can be released still depends on its classification and the rest of the applicable test.

Common questions

Did the Attorney General decide that all four terminations were not final?

No. He said the supplied facts suggest at least one was not yet final. He had no classified records or custodian release decision to review.

Does a pending city-council appeal stop release of all personnel files?

No. The opinion says finality is relevant to employee-evaluation records, not personnel records. The custodian must classify the records and apply the correct test.

Did the Attorney General rule on the bodycam footage?

No. He declined to assess whether the ongoing-investigation exception applied, because that question exceeded the scope of his FOIA opinion review.

When can a termination become administratively final?

The opinion says finality exists when the decision can no longer be reversed or modified administratively. Review completion, expiration of an unused review period, or formal waiver of review may resolve that condition.

Currency note

This February 13, 2024 opinion outlines the release tests on the facts supplied by the city. It does not establish how the city eventually classified or released any requested record.

Source

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

Original opinion text

Opinion No. 2024-029

February 13, 2024

Mr. Andre K. Valley, City Attorney
City of Helena-West Helena
Post Office Box 248
Helena, Arkansas 72342

Dear Mr. Valley:

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). The FOIA 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 report that the City of Helena-West Helena received a FOIA request seeking (1) “personnel files of all individuals who have been terminated in 2024 for a role in an alleged incident of police misconduct” and (2) “any bodycam footage related to the incident in question.” You further report that “some” of the four terminated officers are seeking review of their termination by the city council, who can overrule a termination by a two-thirds vote. Finally, you report that the bodycam footage is involved part of an ongoing investigation by the prosecutor in the First Judicial District and that the bodycam footage has been forwarded to the Arkansas State Police for possible prosecution of the officers.

You do not state how you have classified these records or whether you believe they are subject to disclosure. Instead, you ask whether the ongoing-investigation exception prevents the release of the bodycam footage. You also ask whether the officers’ terminations are final.

RESPONSE

My statutory duty is to state whether the custodian’s decision regarding the release of “personnel or employee records” is consistent with the FOIA. As such, I must respectfully decline to opine on whether A.C.A. § 25-19-105(b)(6), the ongoing-investigation exception, prevents the release of the bodycam footage. And because your request does not specify how you have classified the records or whether you have determined that they are subject to disclosure, there is no decision for me to review. This opinion is therefore limited to an outline of the relevant law.

Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 2

DISCUSSION
The FOIA contains two exemptions for two groups of documents normally found in employees’ personnel files. 1 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: “personnel records” 2 or “employee evaluation or job performance records.” 3 The test for whether these two types of documents may be released differs significantly. When custodians assess whether either of these exceptions applies to a particular record, they must first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

1. Personnel records. While the FOIA does not define the term “personnel records,” this office
   has consistently opined that “personnel records” are all records other than “employee evaluation or job-performance records” that pertain to individual employees. 4 Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

A personnel record is open to public inspection and copying except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 5

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. 6 The balancing test, which takes place with the scale already tipped in favor of disclosure, 7 has two steps. Under the first step, the custodian must assess whether

1
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g., Ark. Op. Att’y Gen. 97-368; John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (Arkansas Law Press, 6th ed., 2017). 2 A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter….[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 3 A.C.A. § 25-19-105(c)(1): “[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.” 4 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
5
Ark. Code Ann. § 25-19-105(b)(12).
6
308 Ark. 593, 826 S.W.2d 252 (1992).
7
Watkins et al. supra, at 208.

Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 3

the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. 8 If it is only minimal, then the privacy interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the record must be disclosed. But if the privacy interest is more than merely minimal, the custodian moves to the second step when he or she must determine whether the privacy interest is outweighed by the public’s interest in disclosure. 9 Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public’s interests. 10 The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 11

2. Employee-evaluation records. 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 performance on the job. 12 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 13 If a document qualifies as an employee-evaluation record, the document cannot be released unless all the following elements have been met:
   1. The employee was suspended or terminated (i.e., level of discipline);
   2. There has been a final administrative resolution of the suspension or termination
   proceeding (i.e., finality);
   3. The records in question formed a basis for the decision made in that proceeding to
   suspend or terminate the employee (i.e., relevance); and

8
Young, 308 Ark. at 598, 826 S.W.2d at 255.
9
Id., 826 S.W.2d at 255.
10
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
11
E.g., Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins et al., supra, at 207.
12
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); e.g., Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, and 93-055. 13 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).

Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 4

4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 14
As for the second prong, which you have asked about, a suspension or termination has achieved final administrative resolution when there is no chance that the suspension or termination can be reversed or modified. 15 If an employee handbook grants a review period for the adverse employment action and the employee requests a review, then the suspension or termination is not administratively final until the review is completed. 16 But if the employee does not request a review and the review period has expired, then the adverse employment action is administratively final under this test. 17 Similarly, if an employee formally waives his right to a review, then the suspension or termination is administratively final. 18

3. Application. My authority under the FOIA is to review the custodian’s decision. But it is not
   clear to me how the custodian has classified the records at issue here and whether the custodian intends to disclose the records. Therefore, at this time I am unable to determine whether that decision is consistent with the FOIA. As the records custodian, you must (1) classify the requested records and (2) apply the appropriate test for disclosure.

Regarding the finality of the officers’ terminations, the information you have provided suggests that at least one officer’s termination is not yet final, given the upcoming review of that decision by the city council. But, as explained above, this fact is only relevant in the context of those records classified as employee-evaluation records, not personnel records.

Finally, given the limited scope of my review, I cannot opine on whether the bodycam footage should be withheld as part of an ongoing criminal investigation.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

14
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
15
Ark. Att’y Gen. Op. 2023-071 (opining that “[t]his element prevents the release of employee evaluations that reflect suspension or termination while there is still some chance the adverse employment action could be administratively reversed or modified”); Watkins et al., supra, at 238–39. 16 Watkins et al., supra, at 238–39.
17
Id.
18
Id.