Can the Arkansas State Police release a state trooper's personnel and internal-affairs file in response to a FOIA request?

Plain-English summary

Someone filed an Arkansas FOIA request for Trooper Quincy Harris's personnel file with the Arkansas State Police. The ASP records custodian decided to release the file with redactions. Trooper Harris, as the subject of the request, asked the Attorney General to review whether that release was consistent with FOIA.

Attorney General Tim Griffin concluded the custodian's plan was partially consistent with FOIA. The breakdown:

• Administrative records (transfer forms, employment-history forms, pay statements, training acknowledgments, etc.) are personnel records and are releasable, subject to standard redactions for SSNs, dates of birth, marital status, personnel numbers, banking information, and tax withholdings.
• Disciplinary records that name the policy violations are employee-evaluation records, but they can be released because the suspensions were administratively final and the public has a compelling interest in records reflecting a state trooper's policy violations.
• Internal-affairs investigative files (complaint forms, interview notes, case summaries) are also employee-evaluation records, releasable for the same reason.
• Commendation letters and promotion letters must be withheld. They are evaluation records, and the four-element disclosure test (suspension or termination, finality, relevance, compelling interest) is not satisfied because there was no suspension or termination tied to those documents.
• Anything that would reveal a record sealed under the Comprehensive Criminal Record Sealing Act of 2013 cannot be released, even if the same information might otherwise be disclosable.

What this means for you

If you are a law-enforcement officer

Based on this opinion, when a FOIA request comes in for your personnel file, expect most of it to come out. Disciplinary actions and the internal-affairs investigations behind them can be released once the discipline is final, because Arkansas treats officers as carrying a heightened public trust. The privacy carve-outs are narrow: SSN, date of birth, contact information, marital status, dependents, banking, and your personnel number. A preference that the public not see your discipline is not, by itself, a legal basis to keep it back.

Commendation and promotion letters are different. Those stay private unless you were also suspended or terminated, the action is final, and the records were the basis for it.

If you are a records custodian for a public agency

The opinion is a step-by-step template you can use whenever a personnel-file request lands on your desk:

1. Sort each document into "personnel record" or "employee-evaluation/job-performance record." Personnel records are anything kept about the employee that was not created to evaluate them. Evaluation records are documents the employer created to assess job performance, including discipline.
2. For personnel records, run the Young v. Rice two-step privacy balancing test. If privacy interest is minimal, release. If it is more than minimal, ask whether the public interest still outweighs it.
3. For evaluation records, withhold unless all four of these are met: the employee was suspended or terminated; that action is administratively final; the records formed a basis for it; and there is a compelling public interest. Law-enforcement officer discipline almost always meets the compelling-interest prong.
4. Even when the document as a whole is releasable, redact the standard private items: SSNs, DOB, personal contact info, marital status, dependents, banking, tax withholdings, payroll deductions, personnel numbers.
5. If anything overlaps with a sealed criminal record, withhold it under the Comprehensive Criminal Record Sealing Act, not just the FOIA court-order exemption.

The opinion also flags two custodian errors worth checking your own practice against. The "Remuneration Statement" had unredacted tax withholdings and payroll deductions, which should be removed. And "Position #" or "Employee #" fields can be the same as a personnel identification number, which would have to be redacted.

If you are a journalist or member of the public requesting these records

Most of what you ask for in a state-trooper personnel file will come back, including final disciplinary actions and the internal-affairs investigations behind them. Plan for redactions of personal-identifier fields. If a commendation or promotion is what you actually want, that one is a harder ask, because the AG treats those as employee-evaluation records that stay sealed unless the officer was also suspended or terminated.

If you are a defense or plaintiff's attorney

This opinion is a useful citation when arguing for disclosure of a law-enforcement officer's discipline file. The "compelling public interest" prong is essentially presumed for officer-misconduct records. If the agency is withholding internal-affairs notes, interview transcripts, or case summaries on the theory that they are "preliminary," the opinion confirms those still qualify as employee-evaluation records and are releasable once the suspension is final.

Common questions

Q: My agency is releasing my personnel file. Can I block the release just because I do not want my information out there?
A: No. The privacy test is objective. The fact that you, as the subject of the records, do not want them released is not a legal basis to keep them back. Only enumerated private items (SSN, DOB, contact info, marital status, banking, etc.) get automatic redactions.

Q: Can the agency release my disciplinary suspension letter?
A: If the suspension is administratively final and the letter sets out the reasons, yes. The Arkansas AG has consistently treated law-enforcement discipline as meeting the "compelling public interest" prong because officers hold a heightened public trust.

Q: What about a commendation letter or a letter promoting me?
A: Those stay confidential unless you were also suspended or terminated, the action is final, and the records were the basis for it. Standalone good news typically is not releasable.

Q: What if some of the records are about an arrest that was later sealed?
A: The custodian must withhold anything that would disclose the existence or contents of a sealed record under A.C.A. § 16-90-1416, even if the underlying personnel record would otherwise be releasable.

Q: Does the agency have to give me, the subject, a chance to object before release?
A: Yes. Under A.C.A. § 25-19-105(c)(3)(B)(i), the subject of a personnel or evaluation record can ask the AG for an opinion on whether the proposed release is consistent with FOIA before the records go out.

Q: I see a "Position #" or "Employee #" on a form. Should that be redacted?
A: If that number is the same as a personnel identification number used to access computerized data, yes. Personnel numbers are exempt under A.C.A. § 25-19-105(b)(11) as "personal identification numbers." Custodians should check whether those fields actually carry that function.

Background and statutory framework

Under Arkansas FOIA, a document held by a public entity must be released if it is a public record and no exemption applies. Personnel files of public employees split into two categories that the courts and AG have refined over the past four decades:

Personnel records are records about the employee that were not created to evaluate performance. The release test is the Young v. Rice two-step privacy balancing: minimal privacy interest means disclose; greater than minimal means weigh against the public's interest in disclosure, with a "thumb on the scale" toward access.

Employee-evaluation or job-performance records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance. The Arkansas Supreme Court adopted this definition in Thomas v. Hall, 2012 Ark. 66. These records are exempt under A.C.A. § 25-19-105(c)(1) unless all four elements line up: suspension or termination; administrative finality; relevance (the records formed a basis for the action); and compelling public interest.

The Comprehensive Criminal Record Sealing Act of 2013 (A.C.A. § 16-90-1416) operates as an independent withholding rule. If a record was sealed by court order under that act, it cannot be disclosed under FOIA, period. The AG defers analysis on this point because he cannot review sealed records to confirm what they contain.

Citations and references

Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions)
- A.C.A. § 16-90-1416 (Comprehensive Criminal Record Sealing Act)
- A.C.A. § 12-8-101 (Division of Arkansas State Police)

Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step privacy balancing test)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Ark. 2012) (definition of employee-evaluation/job-performance records)
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (Ark. 2007) (presumption of public-record status is rebuttable)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (Ark. 1998) (custodian resisting disclosure bears burden)
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (Ark. 1987) (three-element FOIA disclosure test)

Source

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

Original opinion text

Opinion No. 2024-074
August 14, 2024
Trooper Quincy Harris
Via email only: [email protected]

Dear Trooper Harris:

After someone requested your personnel file from the Arkansas State Police (ASP), you requested an opinion from this office about whether the custodian's decisions are consistent with the Arkansas Freedom of Information Act (FOIA). Your request is made as the subject of personnel and evaluation records under A.C.A. § 25-19-105(c)(3)(B)(i).

I have been provided for review the following records, all of which the ASP's custodian of records intends to disclose:

• Administrative records. These include an "Index to Personnel Record"; an ASP "Employment/Education History and Emergency Contact information" form; a May 10, 2024 "Personnel Action Notice Form" concerning a lateral transfer within Highway Patrol with no specific reason for the transfer; a May 10, 2024 letter concerning a lateral transfer within Highway Patrol because of military service; a May 10, 2024 "Lateral Transfer Request" memorandum; a December 16, 2022 National Guard duty order; two different December 29, 2022 National Guard duty orders; a "Remuneration Statement" for the September 4, 2022 to September 17, 2022 pay-period; a December 2021 "Employee Data Change Form"; an August 12, 2020 "Administrative Services Division Change of Name/Address/Telephone Form"; two January 23, 2019 "Administrative Services Division Change of Name/Address/Telephone Forms," one with an additional initial signature; a two-page June 27, 2018 letter concerning "Final Reporting Information"; a January 31, 2018 letter concerning selection for appointment as a "Trooper Recruit"; a six-page November 8, 2017 "Employee Disclosure Requirements/Restrictions Notice"; a September 8, 2023 "Lateral Transfer Request Form"; four September 10, 2023 "Lateral Transfer Request Forms," with different county requests; five May 30, 2023 "Lateral Transfer Request Forms," with different county requests; a February 25, 2018 "Personnel Action Notice Form" concerning a new hire; a July 26, 2018 "Personnel Action Notice Form" concerning a lateral transfer; a June 19, 2023 "Code of Ethics Annual Acknowledgement Statement"; an August 16, 2021 "Safety Sensitive Position Acknowledgment Form"; a February 25, 2018 "Civil Rights and Race Categories" form; a February 25, 2018 "State of Selective Service Status" form; a February 25, 2018 "Arkansas Administrative Statewide Information Systems Information Confidentiality and Security Agreement"; a cover page labeled "108 – DPS Rules Of Conduct Policy"; a printout of a report showing signed "108 – DS Rules of Conduct Policy"; two sets of "Policy NO. 108 – Rules of Conduct;" and two-pages of "Policy NO. 107 Chain of Command"; and a printout of a report showing a signed "Chain of Command Policy."

• Disciplinary records. These include June 29, 2022 and August 13, 2021 "Personnel Action Notice Forms" concerning a disciplinary suspension; a June 29, 2022 letter concerning a suspension; June 28, 2022 and August 13, 2021 email exchanges between ASP email addresses concerning scheduling and leave entries applicable to a suspension; a screenshot of "Display Working Times" concerning suspension days; two copies of a June 28, 2022 "Disciplinary Agreement" (A22-002); a set of handwritten notes requesting someone to prepare a "Letter of Suspension" (A22-002); two copies of an August 11, 2021 "Disciplinary Agreement" (A21-017); and a second set of handwritten notes requesting someone to prepare a "Letter of Suspension" (A21-017).

• Investigative records.

• Complaint File No. A22-002. This file includes a two-page "Complaint and Tracking Form" (Control Number A22-002); a January 15, 2022 "Administrative Inquiry Notification"; a two-page January 15, 2022 letter concerning "Administrative Leave With Pay"; a March 14, 2022 letter forwarding the A22-002 file for final decision and disposition; a three-page March 10, 2022 memorandum from the Command Staff Review Board concerning complaint file No. A22-002; a February 16, 2022 notice of Command Staff Review Board meeting; a February 14, 2022 notice concerning an open investigation, complaint file No. A22-002; a three-page February 10, 2022 "Case File Summary"; a January 15, 2022 "Administrative Inquiry Determination or Request to Upgrade" form; a seven-page February 10, 2022 "Case Form"—"Interview of Department Member"; a WAV file of a recorded interview of Department Member; a ten-page printout containing date/time, "CalledOut," "CalledIn," "Trooper," "Badge#," "10Code and Description," "Operator ID and Name," and "Log ID"; and a copy of A.C.A. §§ 3-3-202, 3-3-203, and 5-27-209.

• Complaint File No. A21-017. This file includes a two-page "Complaint and Tracking Form" (Control Number A21-017); a May 28, 2021 "Complaint Investigation Notification"; a July 6, 2021 letter forwarding the A21-017 file for final decision and disposition; a four-page July 1, 2021 memorandum from the Command Staff Review Board concerning complaint file No. A21-017; a July 14, 2021 notice of Command Staff Review Board meeting; a June 9, 2021 notice concerning an open investigation, complaint file No. A21-017; a three-page June 9, 2021 "Case File Summary"; a May 28, 2021 "Administrative Inquiry Determination or Request for Upgrade" form; an 18-page June 3, 2021 "Case Form"—"Interview of Department Member"; a two-page May 28, 2021 "Request for Departmental Investigation"; a May 28, 2021 Memorandum from Sergeant Brown concerning an incident; a May 28, 2021 Memorandum from Sergeant Mull concerning an incident; an April 19, 2021 email concerning agency policy on assisting federal agencies; and a printout containing date/time, "CalledOut," "CalledIn," "Trooper," "Badge#," "10Code and Description," "Operator ID and Name," and "Log ID."

• Commendation and promotion letters. These include an October 27, 2022 commendation letter; an August 6, 2020 commendation letter; an August 12, 2022 letter concerning a job promotion; and an August 18, 2022 "Personnel Action Notice Form" concerning a job promotion.

RESPONSE

It is the statutory duty of this office under A.C.A. § 25-19-105(c)(3)(B) to state whether a custodian's decision to release "personnel or evaluation records" is consistent with the FOIA. The ASP custodian of records has determined that (1) the information requested consists of both personnel records and employee-evaluation or job-performance records and (2) that the records should be released with certain redactions. For reasons discussed in this opinion, the custodian's decision to release these documents is partially consistent with the FOIA. Some additional information from personnel records is exempt from disclosure, and commendation and promotion letters should be withheld. I also note that I cannot determine whether the custodian's decision to release documents is consistent with an order sealing certain records because I do not have access to the sealed records.

DISCUSSION

1. General rules. A document must be released in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the FOIA. Second, the requested document must constitute a public record. Third, no exemptions allow the document to be withheld.

The first two elements appear to be met here. The request was made to the ASP, which is a public entity subject to the FOIA. And the records at issue appear to be public records. Because these records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. I have no information, however, to suggest that the presumption can be rebutted, and I will thus turn to whether any exemptions prevent the documents' release.

For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "personnel records" and "employee-evaluation or job-performance records." The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a "personnel record" or an "employee-evaluation or job-performance record" and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.

2. Administrative records. In my opinion, the administrative records are best categorized as "personnel records" and the custodian's decision to disclose the administrative records is consistent with the FOIA's treatment of "personnel records." Public records are "personnel records" when (1) they pertain to an individual employee, as each document within the set of administrative records do; and (2) they are not an employee-evaluation or job-performance record—created by or at the behest of the employer to evaluate the employee. Although each administrative record appears to have been created by your employer, these records do not provide any details or specifics concerning your performance or lack of performance as a law-enforcement officer. So the documents that make up the set of administrative records are best classified as "personnel records."

Personnel records are open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 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. The balancing test, which takes place with a thumb on the scale in favor of disclosure, has two steps.

First, the custodian must assess whether the information contained in the requested record is of such a personal or intimate nature that it gives rise to a greater than minimal privacy interest. If the privacy interest is minimal, then disclosure is required.

Second, if the information gives rise to a greater than minimal privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public's interest in disclosure.

This office has consistently opined that the following are personnel records subject to disclosure under the FOIA: documents that confirm someone's employment; dates of hire; general education background, including schools attended and degrees received; training and certifications; job titles; employment contracts; and employee names, salaries, and payroll records. Therefore, the custodian's decision to release these administrative records as "personnel records" is consistent with the FOIA.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted, such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses), employee personnel numbers or identification codes; marital status of public employees; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; net pay; banking information; and other financial "records that would divulge intimate financial detail."

The "Remuneration Statement" for the September 4, 2022 to September 17, 2022 pay-period has not redacted all of the tax withholdings and payroll deductions. To the extent that "Employee #" is the same as employee personnel number or identification codes, then that number would also need to be redacted. The custodian should at least review these records to ensure consistency in redactions.

3. Disciplinary records. Although the FOIA itself does not define the phrase "employee-evaluation record" or "job-performance record," the Arkansas Supreme Court has adopted this office's view that such records are (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. Under this definition, most of the disciplinary records qualify as employee-evaluation records/job-performance records.

3.1. Suspension letters. This office has consistently concluded that records created by or at the behest of employers such as written reprimands, letters of caution, and documents supporting a recommendation for suspension or dismissal, are "employee-evaluations" or "job-performance records." Further, a suspension letter qualifies as an "employee-evaluation" or "job-performance record" when that letter states the grounds for the suspension.

The June 29, 2022 and August 13, 2021 "Personnel Action Notice Forms" concerning a disciplinary suspension notes the type of disciplinary suspension levied but does not provide the reason for the suspension. The June 29, 2022 letter, without specifying the reasons, stated that "[d]ue to your disciplinary on June 28, 2022, you will be transferred." It also appears that the June 28, 2022 and August 13, 2021 email exchanges between ASP email addresses concerning scheduling and leave entries applicable to the suspension and the screenshot of "Display Working Times" were also generated at the behest of the employer in the course of issuing the suspension but do not specify the reason for the suspension. Thus, these documents likely are best classified as "personnel records" subject to redactions discussed above.

But the following documents likely are best classified as "employee-evaluations" or "job-performance records" because they were created by or at the behest of the employer, they concern the performance or lack of performance of an employee, and form the basis of the suspensions: the set of handwritten notes requesting someone to prepare a "Letter of Suspension" (A22-002) and the second set of handwritten notes requesting someone to prepare a "Letter of Suspension" (A21-017). These documents state that the reason for the suspension was specific policy violations. Further, the handwritten notes provide the specific reasons for the suspension and the "Letters of Suspension" refer to the factual investigation.

But employee-evaluation or job-performance records 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.

As for the fourth element, the FOIA does not define the phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. The primary purpose of this particular exemption is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers.

Here, all the elements likely are met. Therefore, the custodian's decision to disclose the termination letter likely is consistent with the FOIA. First, the provided information indicates the listed employee was suspended. Second, although you have not noted whether the suspension was administratively final, the record itself indicates that the suspension was incapable of any administrative reversal or modification. That is, the suspensions have ended, and nothing submitted indicates that an appeal was timely made or is still pending. Third, the records are relevant to the suspension because they detail grounds for the suspension. Fourth, the public has a compelling interest in the disclosure of the records in question because, as this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect violations of office policy.

3.2. Disciplinary agreements. Among the documents you have provided for my review are multiple "Disciplinary Agreements": two copies of a June 28, 2022 Disciplinary Agreement in the A22-002 investigation and two copies of an August 11, 2021 "Disciplinary Agreement" in the A21-017 investigation.

This office has consistently opined that employee-evaluation and job-performance records include "written reprimands, letters of caution," and "letters related to promotions and demotions." Both Disciplinary Agreements concern an agreement for disciplinary action in light of policy violations. Therefore, these two documents cannot be released unless all the following elements have been met: suspension or termination; administrative finality; relevance; and compelling interest. Each of these elements appear to be met and the suspension appears to be administratively final. Thus, the release of these Agreements likely is consistent with the FOIA.

4. Investigative records. As this office has consistently concluded, records in an internal affairs file that have been generated at the behest of the employer while investigating a complaint against an employee (evaluating the employee and detailing performance or lack of performance on the job) constitute employee-evaluation or job-performance records. Thus, the internal complaints are employee-evaluation or job-performance records. And it appears that the notes, interviews, and emails were also generated by or at the behest of the employer in the course of investigating the complaint, which means they are also best classified as employee-evaluation or job-performance records. These employee-evaluation or job-performance records cannot be released unless the four previously discussed elements for disclosure have been met.

Your correspondence and the documents provided suggest that all four elements have been met: (1) you were suspended; (2) the records formed a basis for the suspension; (3) the suspension appears to be administratively final, and (4) the public has a compelling public interest in the disclosure of the records because, as this office has consistently opined, law-enforcement officers are vested with significant public trust, so there is usually a compelling public interest in records, such as these, that reflect policy violations.

5. Commendation and promotion letters. This office has consistently opined that employee-evaluation and job-performance records include written commendations and "letters related to promotions and demotions." That is the case here. Therefore, the commendations letters, the August 12, 2022 job promotion letter, and the August 18, 2022 "Personnel Action Notice Form" concerning a job promotion cannot be released unless all the following elements have been met: suspension or termination; administrative finality; relevance; and compelling interest. Because the first two elements are not met, these documents should be withheld.

6. Comprehensive Criminal Record Sealing Act of 2013. I will now address what appears to be your primary objection to the release of your personnel file: that a court order purportedly prohibits disclosure of certain documents that may also fall within the scope of the FOIA request.

The FOIA incorporates by reference other statutes that explicitly prohibit the release of records: records are open to inspection "[e]xcept as otherwise specifically provided by…laws specifically enacted to provide otherwise." But "[l]ess than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure."

The Comprehensive Criminal Record Sealing Act of 2013, as codified in A.C.A. § 16-90-1416, governs the release of records sealed under the act. Under § 16-90-1416(a), "[t]he custodian of a sealed record shall not disclose the existence of the sealed record or release the sealed record except" to certain individuals or entities for certain reasons. Thus, an order to seal a record typically will exempt from disclosure an arrest report and "records of a case" that has been dismissed.

To the extent that any of the records that the custodian intends to release discloses the existence of the sealed records or releases the records of the case in question, such information cannot be released except for the limited number of circumstances discussed in this opinion. The documents most likely to run afoul of this statute are those associated with the A22-002 file.

Because I cannot review the sealed record, I cannot opine whether the custodian's decisions were consistent with the FOIA on this point. Thus, I note that the custodian will need to review the records to determine whether any of the records should be withheld or redacted before releasing.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General