Opinion No. 2013-078 July 22, 2013 Mr. Bobby J. Engle c/o Chief ...

Opinion No. 2013-078
July 22, 2013
Mr. Bobby J. Engle
c/o Chief Michael Yates
Jonesboro Police Department
410 W. Washington Avenue
Jonesboro, Arkansas 72410
Dear Mr. Engle:
I am writing in response to your request for my opinion regarding the application
of the Arkansas Freedom of Information Act (the “FOIA”). 1 The FOIA authorizes
the custodian, requester, or the subject of personnel or employee evaluation
records to seek an opinion from this office determining the legal propriety of the
custodian’s provisional decision regarding the release of requested records. 2
The FOIA request here at issue was directed by a newspaper to the custodian of
records of the Jonesboro Police Department. The request seeks production of
documents containing information relating to suspensions and firings of “sworn
law enforcement officers” employed by the Department from January 1, 2003
through the present. As an officer employed by the Department during this period,
you have objected to the inclusion of your name “on any list that could lead to
investigation of my character.” As a basis for this objection, you contend that any
such inclusion would impermissibly flout the terms of a judicial order.
The Department has not provided this office with copies of the documents, if any,
it intends to provide in response to the FOIA request. However, it has provided
this office with a list of individuals terminated and suspended during this period,
1 A.C.A. §§ 25-19-101 – 110 (Repl. 2002 and Supp. 2011).
2 A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2011).

Mr. Bobby J. Engle
Opinion No. 2013-078
Page 2
further declaring only that it will comply with whatever the FOIA dictates. It is
unclear whether the Department intends to include this list among any documents
it might eventually produce.
RESPONSE
As noted above, my statutory authority is limited to reviewing a custodian’s
decisions regarding the disclosure of documents that qualify as either personnel
records or employee evaluation/job performance records. 3 In connection with
your request for review, I have been supplied only with a list of individuals
terminated or suspended during the time period at issue, and I have no information
regarding whether the custodian intends to release either that list or any other
documents. 4 I consequently cannot even classify records the custodian intends to
release, much less perform my statutory duty to review the propriety of the
custodian’s decisions regarding the disclosure of documents within the pertinent
classifications. I am attaching, however, a copy of a recent opinion, 5 issued under
similarly uncertain circumstances, which discusses the nature of records falling
within these two categories and sets forth the standards the custodian must apply
in determining which documents within these categories are subject to disclosure.
I will further briefly address what appears to be your core objection – namely, that
a court order purportedly prohibits the disclosure of any documents relating to you
that might fall within the scope of the FOIA request. I have not been provided a
copy of any such order and cannot opine regarding either its scope or its possible
application to documents the custodian may provisionally elect to release. I can
do no more than note that the Code exempts from disclosure under the FOIA any
document sealed by court order. 6 In reviewing the records and determining which,
if any, fall within the scope of the newspaper’s request, the Department’s
3 See Ops. Att’y Gen. 2012-012, 2009-156 and 2009-064 (all declining to review questions regarding the
disclosure of documents that do not fall within these categories).
4 I will note in this regard that this office has repeatedly opined that, unless some other statutory exception
to disclosure applies, a public record that merely reports the fact of a public employee’s termination or
suspension is a personnel record subject to disclosure. See, e.g., Op. Att’y Gen. 2012-077 and opinions
cited therein.
5 Op. Att’y Gen. 2013-012.
6 This exemption appears in the FOIA itself in A.C.A. § 25-19-105(b)(8) (Supp. 2011), which prohibits the
release of “[d]ocuments that are protected from disclosure by order or rule of court.” Subsection 25-19-
105(a)(1)(A) (Supp. 2011) further mandates the disclosure of public records “[e]xcept as otherwise
specifically provided by this section or by laws specifically enacted to provide otherwise.”

Mr. Bobby J. Engle
Opinion No. 2013-078
Page 3
custodian of records, presumably in consultation with counsel, will need to
determine the potential application of this separate exemption.
Assistant Attorney General Jack Druff prepared the foregoing opinion, which I
hereby approve.
Sincerely,
BRADFORD J. PHELPS
Chief Deputy Attorney General
BJP/JHD:cyh
Enclosure