Opinion No. 2013-101 August 21, 2013 Ernest B. Cate, City Attorney ...

Opinion No. 2013-101
August 21, 2013
Ernest B. Cate, City Attorney
City of Springdale, Arkansas
201 N. Spring Street
Springdale, Arkansas 72764
Dear Mr. Cate:
You have requested my opinion regarding the Arkansas Freedom of Information
Act (“FOIA”). Your request, which is made as the custodian of records, is based
on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2011). This subsection authorizes the
custodian, requester, or the subject of personnel or employee evaluation records to
seek an opinion from this office stating whether the custodian’s decision regarding
the release of such records is consistent with the FOIA.
Your letter indicates that someone has requested the entire “personnel file” of a
former police officer together with “all documents of the former officer’s
training.” You have collected those documents and intend to release them all after
redacting the former officer’s social security number. You say that the former
officer objects “to the release of the requested information,” though you do not say
why. You ask whether your decision to release these documents is consistent with
the FOIA.
RESPONSE
My statutory duty is to state whether the custodian’s decision is consistent with the
FOIA. A document must be disclosed in response to a FOIA request if all three of
the following elements are met. First, the FOIA request must be directed to an
entity subject to the act. Second, the requested document must constitute a public
record. Third, no exceptions allow the document to be withheld. Because the

Ernest B. Cate, City Attorney
City of Springdale, AR
Opinion No. 2013-101
Page 2
exceptions are mandatory, custodians cannot disclose a document if it falls within
an exception.
When issuing opinions pursuant to section 25-19-105(c)(3)(B)(i), I am only
authorized to assess the custodian’s decisions regarding two types of documents
that can be exempt from disclosure under the FOIA: “personnel records” and
“employee evaluation or job performance records.” When custodians assess
whether particular records fall under either of these exemptions, they must make
two determinations. First, they must determine whether the record meets the
definition of either exception. Second, assuming the record does meet one of the
definitions, the custodian must apply the appropriate test to determine whether the
FOIA requires that particular record be disclosed. 1
From a brief review of the 301 pages you intend to release and have forwarded to
me, it is clear to me that you have not undertaken the foregoing steps, both of
which are critical to generating a decision that this office can assess.
The fact that you have not attempted to classify the documents is clear from the
fact that the documents are jumbled together in one stack with no apparent order
and no indication whether you have categorized them. Nor have you mentioned
that you have even considered and applied the definitions for personnel records
and employee evaluations.
Further, the fact that you have not attempted to apply the relevant tests for
disclosure is evident because the two stacks of documents are replete with
documents that cannot be disclosed under the FOIA. For example, the stack of
records that you take to be responsive to the request for the “personnel file”
contains several yearly job evaluations that, it appears, did not lead to any
disciplinary action. These evaluations are clearly job performance records that
cannot be disclosed. The same is true for the stack of records that you take to be
responsive to the request for training documents. Further, many of the documents
contain the former employee’s home address and date of birth, both of which are
exempt from disclosure. The documents also contain an entire college transcript,
which this office has said is exempt from disclosure. 2
1 These requirements are explained more fully in the enclosed opinion and in the opinions cited
therein.
2 Id.

Ernest B. Cate, City Attorney
City of Springdale, AR
Opinion No. 2013-101
Page 3
My authority and obligation to review custodians’ decisions regarding the release
of personnel and evaluation records is premised on there being a considered
decision for me to review. Therefore, because you have not made a colorable
attempt to apply the FOIA, I am unable to evaluate your decision.
To assist you in applying the FOIA, I have enclosed Opinion No. 2012-085, which
explains the FOIA’s standards regarding personnel and employee evaluation
records.
Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.
Sincerely,
DUSTIN MCDANIEL
Attorney General
DM/RO:cyh
Enclosure