Opinion No. ( 2009 )

Captain Larry Ranells Fort Smith Police Department 100 South 10^th Street Fort Smith, Arkansas 72901

Dear Captain Ranells:

I am writing in response to your request for an opinion on the propriety of the records custodian's decision in response to a Freedom of Information Act (FOIA) request. Accordingly, this opinion is in issued pursuant to the duty created by A.C.A. § 25-19-105(c)(3(B) (Supp. 2007).

Having reviewed the FOIA request, it is my understanding that the requester seeks the completed investigations of any officer who was suspended or fired from January 2007 to February 12, 2009. You state that the records custodian has decided to release your "file," but intends to redact your name from the documents. You object to the release of your "file" for several reasons, all of which relate to whether the public has a compelling interest in the documents. Essentially, you argue that the incident is mostly personal in nature, did not involve misuse of taxpayer funds or implicate public safety, and occurred off-duty.

RESPONSE

Having reviewed the records the custodian intends to release, it is my opinion that they are exempt from disclosure pursuant to A.C.A. § 25-19-105(c)(1) (Supp. 2007). Accordingly, the custodian's decision to release the records is in my opinion contrary to the FOIA. This is true despite the custodian's apparent intent to release the records with your name redacted. As I and my predecessors have previously noted, no portion of employee evaluation or job performance records is subject to disclosure where the test for release of those records has not been met. E.g., Op. Att'y Gen. 2007-307 at n. 1.

DISCUSSION

The records the custodian intends to release constitute "employee evaluation or job performance records" under the FOIA.¹ The test for release of such records involves three elements: finality, relevance, and a "compelling public interest" in disclosure. Id. This test is discussed in more detail below. In sum, it is my opinion based upon a review of the records that there is no compelling public interest in their disclosure.²

The FOIA provides for the disclosure upon request of certain "public records," which the Arkansas Code defines as follows:

"Public records" means writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

A.C.A. § 25-19-103(5)(A) (Supp. 2007).

Given that the record(s) at issue are kept by the police department and the subject matter involves the suspension of a police department employee, I believe the records(s) clearly qualify as "public records" under this definition. Accordingly, they can only be withheld if an exception prohibits their disclosure. As one of my predecessors noted: "If records fit within the definition of ``public records' . . ., they are open to public inspection and copying under the FOIA except to the extent they are covered by a specific exemption in that Act or some other pertinent law." Op. Att'y Gen.1999-305; Arkansas Gazette Company v. Goodwin, 304 Ark. 204,801 S.W.2d 284 (1990).

From my review of the documents, the pertinent exemption in this instance is the one for "employee evaluation or job performance records," found at A.C.A. 25-19-105(c)(1) (Supp. 2007). The FOIA does not define the term "employee evaluation or job performance records," but this office has consistently taken the position that these terms refer to records that were created by (or at the behest of) the employer, and that detail the employee's performance or lack of performance on the job. Op. Att'y Gen. 2004-012 (and opinions cited therein). It includes records that were generated as part of an investigation of allegations of the misconduct of an employee, and that detail incidents that gave rise to an allegation of misconduct.Id.

The records the custodian intends to release amount to employee evaluation or job performance records. But some documents are employee evaluation or job performance records of other officers. For example, an inter-office memorandum dated August 14, 2008, cannot be characterized as your employee evaluation or job performance record because the memorandum does not detail your performance or lack of performance on the job. Indeed, the memorandum appears to constitute evaluation or job performance records of several other officers. Because none of the incidents listed resulted in suspension or termination, the test for the release of this record (see test described below) has not been met. This record therefore should not be released.

Turning to the remainder of the records, these documents may be released only if the following three-part test is satisfied:

1. There has been a final administrative resolution of any suspension or termination proceeding (finality);

2. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (relevance); and

3. There is a compelling public interest in the disclosure of the records in question (compelling interest).

A.C.A. § 25-19-105(c)(1) (Supp. 2007). All three of the conditions must be present before an evaluation or job performance record may be released. Op. Att'y Gen. 2008-065.

Based upon my review of the documents, it seems clear that the first two elements are clearly met. The only remaining question is whether element three is met. The FOIA at no point defines the phrase "compelling public interest." However, two leading commentators on the FOIA, referring to this office's opinions on this issue, 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.

J. Watkins R. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT (m m Press, 4th ed. 2004), at 207 (footnotes omitted). Professors Watkins and Peltz 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. Id. at 206 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ``rank-and-file' workers are at issue.") With regard specifically to allegations of police misconduct, I noted as follows in Op. Att'y Gen. No. 2007-206:

I and my predecessors have previously stated . . . on this general topic that a compelling public interest likely exists in information reflecting a violation of departmental rules by a "cop on the beat" in his interactions with the public. See Op. Att'y Gen. 2006-106. If the prior disciplinary records reflect a suspension based on this type of infraction, a strong case for the finding of a compelling public interest exists.

This office has repeatedly opined that, in certain situations, a compelling public interest exists in the disclosure of documents containing certain categories of information. E.g., Ops. Att'y Gen.2001-144 (use/possession of drugs); 2003-257, 97-190 and 97-177 (arrests and/or convictions); 2003-072, 2001-343, 98-210, 98-075, 97-400 and 92-319 (violation of safety rules). However, neither I nor any of my predecessors have opined that only these categories of information could give rise to a compelling public interest favoring disclosure. In my opinion, regardless of what category of information a document contains, in order to determine whether a compelling public interest exists in its disclosure, the custodian must conduct a detailed review of the document considering the factors discussed above. The existence of a "compelling public interest" in disclosure will necessarily depend upon all of the surrounding facts and circumstances in each case.

After reviewing the facts that gave rise to this suspension, I have concluded that the public does not have a compelling interest in the documents the custodian intends to release. This conclusion is based on the specific facts of the incidents giving rise to the records I have reviewed. The cumulative effect of these facts, some of which are listed below, indicate that the public lacks a compelling interest in the documents. The facts include the following: the incident did not involve a misuse of taxpayer funds or any criminal conduct; the incident involved no interaction with the public; the incident occurred while you were off-duty; the incident was a one-time incident and personal in nature. Thus, in my opinion, the final prong that justifies release of employee evaluations and job performance records is not satisfied. Accordingly, it is my opinion the custodian's decision to release the documents is inconsistent with the FOIA.

Finally, if the custodian nevertheless decides to release your documents, then the decision to redact your name is in my opinion inconsistent with the FOIA. The precise basis for the statutory custodian's decision to redact names is unclear. I must note, however, that the exception for employee evaluation and job performance records makes no provision for redacting individuals' names.E.g., Op. Att'y Gen. 2005-233. Indeed, to the contrary, the identity of the individual would seem central to the determination of whether a compelling public interest exists. Accordingly, redacting the name of the subject of the record would seemingly largely negate the public's interest and frustrate the purpose of the requirement to release qualified employee evaluations and job performance records. Consequently, if the custodian nevertheless decides that, contrary to this opinion, the documents meet the test for the disclosure of evaluation/job performance records, then the records must likely be disclosed in their entirety with no redactions. Id. Op. 2005-233.³ If, on the other hand, the test for release is not met, then as explained above, the records are exempt from disclosure in their entirety.

Assistant Attorney General Ryan Owsley prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN MCDANIEL Attorney General

¹ See Ark. Op. Att'y Gen. 2001-343 (observing that records reflecting disciplinary action taken for employee misconduct will generally constitute "employee evaluation or job performance records" under the FOIA.) See also Op. Att'y Gen. 2000-179 (and opinions cited therein.)

² I should note, however, that if the custodian nevertheless decides to release the records, the decision to redact your name from the records is in my opinion likely inconsistent with the FOIA. While some specific exceptions might come into play when determining whether an evaluation or job performance record is subject to release in its entirety, in my opinion there generally is no authority for redacting an employee's name from such a record prior to its release.

³ It should perhaps be noted that the constitutional right to privacy can conceivably be implicated with respect to evaluation and job performance records. Unlike with respect to "personnel records," A.C.A. § 25-19-105(b)(12), the test for the release of "employee evaluation or job performance records" does not include a built-in weighing or consideration of the employee's privacy rights. However, the Arkansas Supreme Court has recognized that the constitutional right of privacy can supersede the specific disclosure requirements of the FOIA, at least with regard to the release of documents containing constitutionally protectable information. McCambridge v. City of Little Rock,298 Ark. 219, 766 S.W.2d 909 (1989). Because I have no information to suggest that the records at issue might fall into this category, I will not further elaborate upon the applicable test. You may wish to refer to the following resource for more guidance: THE ARKANSAS FREEDOM OF INFORMATION ACT, supra at 243-244 (footnotes omitted), quoting Eagle v.Morgan, 88 F.3d 620 (8^th Cir. 1996) and Alexander v.Peffer, 993 F.2d 1348 (8^th Cir. 1993); and citing Sheetsv. Salt Lake County, 45 F.3d 1383 (10^th Cir. 1995); andWalls v. City of Petersberg, 895 F.2d 188 (4^th Cir. 1990).