Ms. Lynda Thomas Yeager, PHR Director, Human Resources Department City Hall 1201 Oak Street Conway, AR 72032
Dear Ms. Yeager:
You have requested an 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 et seq.).
You indicate that the City of Conway has received a request for various records concerning an investigation of the Conway Police Department, currently being conducted by an outside investigator pursuant to a contract with the City of Conway. The requestor has asked for the following records:
• The resume presented by the Special Investigator to the City of Conway, and all related paperwork therein.
• The qualifications, Length of Time, and Job Description of the investigator in question, and all related paperwork therein.
• The name, date and place of birth, salary, training and education background, and work experience of the investigator in question, and all related paperwork therein.
• The notice/job offer description used to advertise and find this said investigator.
• Any other record maintained in public offices or by public employees within their scope, regarding this said investigator that is not specifically forbidden from release under the F.O.I.A.
• The Personnel and Evaluation Records regarding said investigator.
• The criteria and qualifications that should be a part of the job notice/description that the City of Conway requires for the outside investigator.
You state that you are unable to determine whether the requested records should be released.
RESPONSE
I am unable to respond to your request. My mandate under A.C.A. §25-19-105(c)(3)(B) to issue an opinion within three days applies only to requests concerning the releasability under the FOIA of personnel records and employee evaluation/job performance records. In order to constitute a personnel record or an employee evaluation/job performance record, a record must pertain to an employee. According to my understanding, the investigator with whom the City has contracted does not appear to be an employee of the city; he may, rather, be an independent contractor. Therefore, even though the request in one instance specifically refers to "the personnel and evaluation records" of this investigator, if he is not an employee of the City, none of the records maintained by the City concerning him would constitute personnel records or employee evaluation/job performance records. Accordingly, because A.C.A. §25-19-105(c)(3)(B) does not apply, I am not authorized to issue an opinion in response to your request.
I advise you to consult with your city attorney regarding this matter.
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General