Mr. Darrell F. Brown Darrell F. Brown and Associates, P.A. 807 W. 3rd Little Rock, Arkansas 72201
Dear Mr. Brown:
You have requested an Attorney General opinion, pursuant to A.C.A. §25-19-105(c)(3)(B), a section of the Freedom of Information Act (FOIA) (A.C.A. § 25-19-101 through -107), concerning the release of certain records under the FOIA.
You state that you represent an individual who filed a citizens' complaint with Little Rock Police Department concerning abusive conduct by a police officer. The Department reviewed the matter, gathering statements from all concerned parties, and determined that the allegations were unfounded. In accordance with the Department's procedures, your client, the complainant, appealed this determination to the Civil Service Commission. The Civil Service Commission will review the file and will give the complainant an opportunity to appear. You state that the custodian of the records has stated that the Department will not release the file. The custodian's decision is based on his determination that all records in the file constitute job performance records.
I am directed by law to issue an opinion as to whether the determination of the custodian of the records regarding the release of the requested records is consistent with the FOIA. A.C.A. § 25-19-105(c)(3)(B).
RESPONSE
As an initial matter, I must note that because I have not had the opportunity to review the requested records, I cannot opine definitively concerning their releasability. However, it is my opinion that if the custodian has correctly characterized the records in the file as job performance records, his decision not to release the records is consistent with the FOIA.
The FOIA provides that "employee evaluation/job performance records" are exempt from disclosure to the public unless the following three 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).
If the foregoing conditions have not been met, "employee evaluation/job performance records" may not be released. The question of whether the records that you have requested constitute "employee evaluation/job performance records," and the question of whether the foregoing conditions have been met, are questions of fact that must be answered in the first instance by the custodian.
The FOIA does not define the term "employee evaluation/job performance records." I have taken the position that records relating to an employee's performance or lack of performance on the job are properly classified as "employee evaluation/job performance records" under the FOIA. See, e.g., Op. Att'y Gen. No. 2001-028
This office has, more specifically, consistently taken the position that statements of employees that are solicited as a part of an investigation by the employer into the conduct of the employee about whom the statements are made, should be deemed the "employee evaluation/job performance records" of that employee. See Ops. Att'y Gen. Nos. 200-175; 98-001; 96-342; 96-257; 96-324. Similarly, records that were created as a part of an investigation into an employee's conduct and that detail an incident(s) that gave rise to an allegation of misconduct, also constitute "employee evaluation/job performance records." See Ops. Att'y Gen. Nos. 2000-130; 98-001; 96-342; 96-257.
If, in fact, the file that you have requested contain records of this type, and if the three conditions for the release of such records have not been met, the custodian correctly determined that these records should not be released.
I must note that records of this nature may well be obtainable through discovery in the context of formal litigation. However, they are exempt from disclosure under the FOIA.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:SA/cyh