Thomas v. Hall

JIM HANNAH, Chief Justice,

concurring.

I concur in the result reached by the majority; however, I write separately to state my analysis. The use-of-force narrative at issue is one of a number of items that constitutes a “Use-of-Force File,” which must be created anytime an officer employs force “to control, arrest or prevent escape of any person.” General Order 303(IV)(A). The Use-of-Force File is reviewed by the officer’s supervisor, and then by successively higher supervisors. It is then referred to the Chief of Police where certain conditions exist, such as a “potential violation of Departmental policy” and where “counseling or other disciplinary action has been recommended.” See General Order 303(IV)(B)(8). According to Chief of Police Stuart Thomas, the review of a Use-of-Force File may result in the initiation of an internal-affairs complaint, which would trigger an employee evaluation. The testimony and record on appeal reveal that the “Use of Force” process initiated and pursued under General Order 303 brings about a departmental review of the propriety of the use of force and may, incidentally, bring about an employee evaluation.

Nothing presented indicates that the creation of the Use-of Force file or its review constitutes an employee evaluation or generates job-performance records. As such, Use-of-|Force17 files are not exempt from disclosure. See Ark.Code Ann. § 25-19-105(c)(l) (Supp.2011).¹ “The burden of proving exemptions to the FOIA rests with the keeper of the requested records claiming the exemption.” Orsini v. State, 340 Ark. 665, 670-71, 13 S.W.3d 167, 170 (2000) (citing Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)). Further, “[t]he FOIA should be broadly construed in favor of disclosure and exceptions construed narrowly.” Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 439, 260 S.W.3d 718, 721 (2007). Because the keeper of the requested records claiming the exemption failed to meet the burden of proof, I agree that the decision of the circuit court must be affirmed.

1 . Arkansas Code Annotated section 25-19-105(c)(1) provides as follows:

Notwithstanding subdivision (b)(12) of this section, all 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.

The General Assembly may wish to review the language in this section and consider whether its application to the facts in this case produces the result the General Assembly intended.