Officer Tracey Ritchie Officer Annette Harrington Little Rock Police Department c/o Jim Bradshaw, Risk Manager Little Rock Human Resources Department 500 West Markham, Suite 130 Little Rock, AR 72201-1428
Dear Officers Ritchie and Harrington:
You have requested an official Attorney General opinion, pursuant to A.C.A. § 25-19-105(c)(3)(B), concerning the release of certain records under the Freedom of Information Act (FOIA) (A.C.A. § 25-19-101 through -109) (Repl. 2002 and Supp. 2005).
You indicate that a request has been presented to the Little Rock Human Resources Department for copies of your personnel files. The custodian of the records has determined that your personnel files should be released, except the following information quoted below:
• Information constituting a clearly unwarranted invasion of your personal privacy: Under this exception, the background investigation conducted by the department when you were first under consideration for employment is, in our view, not discoverable. In addition, all other personal information such as telephone number, social security number, address, etc. shall be expunged from any records made available under the ACT;
• Medical records: Any medical records/examinations contained in the personnel file will be removed before the file is made available under the ACT.
• Employee evaluation and job performance records: the ACT says that these documents are open to public inspection only if, upon final administrative resolution of any suspension or termination proceedings, they form the basis of the decision to suspend or terminate.
I am directed by law to issue my opinion as to whether the custodian's determination regarding the release of these files is consistent with the FOIA. A.C.A. § 25-19-105(c)(3)(B).
I must note that I have not been provided with copies of the records in your files and therefore cannot opine definitively concerning the releasability of any particular record.
Nevertheless, it is my opinion that the custodian's decision to release your personnel files, with the exceptions stated above, is generally consistent with the FOIA, although further matters should also be considered in making a decision about the release of the records.
Personnel Records
The custodian has correctly stated the rule for the releasability of "personnel records." Under the provisions of the FOIA, "personnel records" are subject to disclosure except to the extent that disclosure would constitute a "clearly unwarranted invasion of personal privacy." A.C.A. § 25-19-105(b)(12).
An initial question, then, is whether the records in your personnel files constitute "personnel records." It is my opinion, as explained more fully below, that if these records pertain to your employment, but are not employee evaluations or job performance records (which will be discussed later), they would most likely be held by a court to constitute "personnel records."
If the records in your files are, in fact, "personnel records," as some of them likely are, the ensuing issue is whether their release would constitute a clearly unwarranted invasion of your personal privacy. The FOIA does not define the phrase "clearly unwarranted invasion of personal privacy." However, the Arkansas Supreme Court has construed the phrase. In determining which disclosures constitute a "clearly unwarranted invasion of personal privacy," the court applies a balancing test. The court will weigh the interest of the public in accessing the records against the individual's interest in keeping the records private. See Young v. Rice,308 Ark. 593, 826 S.W.2d 252 (1992). If the public's interest outweighs the individual's interest, the release of the records will not constitute a "clearly unwarranted invasion of personal privacy."
The question of whether a "clearly unwarranted invasion of personal privacy" exists is a question of fact. See Op. Att'y Gen. No. 98-001. Unless the custodian of the personnel records in your personnel file can establish factually that the release of these records would constitute a clearly unwarranted invasion of your personal privacy (by showing that your privacy interest in the records outweighs the public's interest in the records), the "personnel records" exemption will not apply to these records, and they should be released. (It should be noted that certain information, such as your social security number, and home addresses must be redacted from these records prior to their release.)
Medical Records
The custodian has correctly stated that medical records are exempt from disclosure under the FOIA. That is exemption is explicitly set forth in A.C.A. § 25-19-105(b)(2). The term "medical records," as used in the FOIA, is not defined. This office has construed the term to apply to "records containing information relating to the treatment or diagnosis of a medical condition." See Op. Att'y Gen. No. 89-147. Accord, Op. Att'y Gen. No. 91-374. Such records should not be released.
Employee Evaluation/Job Performance Records
The custodian has correctly stated that "employee evaluation and job performance records" can be released only upon final administrative resolution of any suspension or termination proceeding. The actual test under the FOIA for the release of "employee evaluation and job performance records" is a three-part test. Such records can be released only if the following conditions have been met:
(1) There has been a final administrative resolution of any suspension or termination proceeding;
(2) The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and
(3) There is a compelling public interest in the disclosure of the records in question.
A.C.A. § 25-19-105(c)(1).
A threshold question, therefore, is whether any of the records in your personnel file constitute "employee evaluations or job performance records."
The FOIA does not define the phrase "employee evaluation or job performance record," nor has the phrase been construed judicially. I cannot formulate an official definition for undefined statutory language. Formal, written employee evaluations are of course included. In addition, this office has previously opined that documents such as written reprimands and letters of caution, documents upon which a recommendation for dismissal was based, and letters related to promotions and demotions are "job performance records." See, e.g., Ops. Att'y Gen. Nos. 93-105, 93-055, 92-231, 92-191, 91-324, and 91-303.
If any of the records in your personnel files are, in fact, employee evaluations or job performance records, the above-stated three-part standard must be applied.
The question of whether there has been a final administrative resolution of a termination or suspension and the question of whether the requested records formed a basis for that termination or suspension are clearly questions of fact that can be readily determined. The employee evaluations and job performance records in your file can be disclosed only if those questions can be answered affirmatively, and if it is determined that there is compelling public interest in their disclosure, as discussed below.
The phrase "compelling public interest" is not defined in the FOIA. Clearly, whether there is a "compelling public interest" in the release of particular records will depend upon all of the facts and circumstances attendant to the particular case. Professors Watkins and Peltz in their book, The Arkansas Freedom of Information Act (mm Press 4th ed. 2004), have provided some guidelines for determining whether such an interest exists. They state: "the nature of the problem that led to the suspension or termination will undoubtedly bear on the `compelling public interest. . . .' The public's interest in disclosure is most likely to be compelling when the records reflect a breach of trust or illegal conduct by public employees. . . . However, the mere fact that an employee has been suspended or terminated does not mean that the records should be made public; if that were the case, the `compelling public interest' phrase would be a redundancy. . . ." Watkins and Peltz, supra at 205. In this regard, Professors Watkins and Peltz also state: "A general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present."Id. at 207. Watkins and Peltz have also noted that the status of the employee, or "his rank within the bureaucratic hierarchy," may also be relevant in determining whether a "compelling public interest" exists. Watkins and Peltz, supra at 206 (noting that "[a]s a practical matter, courts may be more likely to find such an interest when a high-level employee is involved than when the [records] of `rank-and-file' workers are at issue.") However, Professors Watkins and Peltz note that "[i]n some cases, . . . rank is unrelated to importance" — a proposition they illustrate by noting that "[t]he public has a great interest in the performance of police officers and other law enforcement officials, and in this case the `cop on the beat' is just as important as the chief of police." Id. at 207.
Background Investigations
The custodian's decision not to release any records reflecting your background investigation may be overbroad. This office has opined on numerous occasions that a blanket denial of access to all background investigation records may be inconsistent with the FOIA. See Ops. Att'y Gen. Nos. 98-101, 97-286, 96-368, 95-242, 94-113, and 92-319. The FOIA does not provide a blanket exemption for background investigations. For this reason, records reflecting a background investigation must be examined individually and separately to determine whether each such record is disclosable, whether it falls under a specific exemption from disclosure, or whether particular information should be redacted from the records prior to disclosure.
Other Required Redactions
Without reviewing the actual files in question, I cannot determine whether further redactions should be made from your files. I have enclosed for your review, however, a copy of Op. Att'y Gen. 2005-202, which details the types of information that is properly redacted from a police officer's personnel file.
Conclusion
Assuming that the custodian of the records considers all of the above in determining whether to release the records in your files, I must conclude that the custodian's decision is consistent with the FOIA.
Deputy Attorney General Elana C. Wills prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General
MB:ECW/cyh