FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCV-17-147] HONORABLE STEPHEN TABOR, JUDGE
Law Group PLLC, by: William Whitfield Hyman, pro se
Rutledge, Att'y Gen., by: Vincent P. France, Ass't
Att'y Gen., and Jennifer L. Merritt, Sr. Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE.
Hyman appeals from the Sebastian County Circuit Court's
order denying his request for information under the Arkansas
Freedom of Information Act (FOIA).Although Mr. Hyman prevailed
on five counts of his six-count complaint, he contends that
the circuit court clearly erred in denying his additional
request for information by applying the
employee-evaluation/job-performance exemption. Ark. Code Ann.
§ 25-19-105(c)(1) (Supp. 2017). He also argues that the
circuit court erred in failing to award him attorney's
fees. We affirm the circuit court's order.
February 10, 2017, Mr. Hyman, a lawyer representing himself,
filed a pro se complaint with six counts under FOIA to compel
appellee Bill Sadler, in his official capacity as public
information officer for the Arkansas State Police, to respond
to his request for records. Five counts-Counts I, II, III,
IV, and VI-alleged violations of FOIA for failure to provide
dash-cam-surveillance videos of various clients. Count V was
different, however, as Mr. Hyman contended that he had
requested documents regarding an investigation into potential
wrongdoing by Officer Ziegenhorn made as the result of a
citizen's complaint by his client, Andrew James Tanner.
Mr. Sadler denied the request pursuant to the
employee-evaluation/job-performance exemption set forth in
Ark. Code Ann. § 25-19-105(c)(1). Mr. Hyman initially
requested any documents related to incidents regarding Mr.
Tanner on dates in November and December 2014 at a Walmart in
Searcy. When Mr. Sadler reported that there were no such
documents,  Mr. Hyman requested "results of
complaints from Andrew James Tanner to the Arkansas State
Police about a Trooper Kurt Ziegenhorn made on or about
November and December 2014." Because there was no
decision to suspend or terminate Officer Ziegenhorn following
this investigation, Mr. Sadler denied Mr. Hyman's request
for the records. Mr. Hyman's complaint also requested
that the circuit court find him to be the "substantially
prevailing party" pursuant to Ark. Code Ann. §
25-19-107, which authorizes an award of attorney's fees
in certain instances to a "plaintiff who has
substantially prevailed" in a FOIA action.
hearing, Mr. Sadler testified regarding Count V that Mr.
Tanner had filed a "Police-Citizen Complaint Form,
" which was introduced as plaintiff's exhibit R,
pursuant to which Mr. Tanner alleged that Officer Ziegenhorn
had, on two occasions, yelled and cursed at Mr. Tanner while
pointing his finger in his face; searched Mr. Tanner without
cause; placed him in handcuffs without cause; and confiscated
his concealed-carry license without cause. Mr. Tanner averred
in the complaint that this reflected a poor quality and a low
standard on the Arkansas State Police. Mr. Hyman requested
the "results" of Mr. Tanner's police-citizen
complaint and all records pertaining thereto. Mr. Sadler
testified that Officer Ziegenhorn had been off duty at the
time of his "by-chance" encounters with Mr. Tanner
at Walmart and had not arrested Mr. Tanner. He testified that
any records pertaining to this complaint were "part of
the internal affairs investigation" regarding Officer
Ziegenhorn and thus were job-performance records. He said
that the records did not form the basis for suspension or
termination; therefore, they were not subject to release
circuit court entered an order granting Mr. Hyman's
requests for the dash-cam videos under Counts I, II, III, IV,
and VI and ordered Mr. Sadler to produce them or make them
available for inspection and copying. The court denied Mr.
Hyman's request pursuant to Count V, finding that these
records were exempt under the
employee-evaluation/job-performance exemption. The court also
denied attorney's fees, finding that although Mr. Hyman
was the prevailing party, Mr. Sadler was substantially
justified in his position. Mr. Hyman filed this appeal from
the court's order.
FOIA case, the standard of review is whether the circuit
court's findings were clearly erroneous or clearly
against the preponderance of the evidence. Pulaski Cty.
v. Ark. Democrat-Gazette, Inc., 371 Ark. 217,
264 S.W.3d 465 (2007). The issue of the applicability of FOIA
is a question of statutory interpretation, which we review de
novo, because it is for this court to determine the meaning
of a statute. Hyman v. Sadler, 2017 Ark.App. 292, at
5, 521 S.W.3d 167, 170.
first point on appeal, Mr. Hyman contends that the circuit
court erred in applying the
employee-evaluation/job-performance exemption to his request
for information regarding Mr. Tanner's citizen complaint.
He argues that this exception does not apply when, as here,
there has been no suspension or termination proceeding.
Moreover, he claims that even if there was such a proceeding,
if there are records of a narrative by an employee, they must
exemption at issue in this case provides specifically as
Notwithstanding subdivision (b)(12) of this section,
employee evaluation or job performance records, including
preliminary notes and other materials, shall be open to
public inspection only upon final administrative
resolution of any suspension or termination proceeding at
which the records form a basis for the decision to suspend or
terminate the employee and if there is a compelling public
interest in their disclosure.
Ark. Code Ann. § 25-19-105(c)(1) (emphasis added).
Although the general policy in Arkansas is for all public
records to be "open to inspection" under FOIA
unless they are specifically exempted, the legislature has
determined that the public interest in maintaining an
effective public-employee-evaluation system and in the
privacy interests of its employees requires that
"employee evaluation or job performance records" be
treated differently. Thomas v. Hall, 2012 Ark. 66,
at 6-7, 399 S.W.3d 387, 391 (citing Act of Feb. 16, 1987, No.
49, 1987 Ark. Acts 113 and John J. Watkins & Richard
Peltz, The Arkansas Freedom of Information Act 205
(Ark. Law Press, 5th ed. 2009)). These records are subject to
disclosure only in certain circumstances. Id. Those
circumstances occur, according to the statute, when there has
been a final administrative resolution of any suspension or
termination proceeding; a decision was made to suspend or
terminate the employee; the records formed a basis for the
decision; and there is a compelling public interest in
disclosure of the records in question. Ark. Code Ann. §
25-19-105(c)(1); see also Op. Ark. Att'y Gen.
No. 147 (1999). Our supreme court has approved of the
following definition of employee-evaluation or
job-performance records: "any records that were created
by or at the behest of the employer and that detail the
performance or lack of performance of the employee in
question with regard to a specific incident or
incidents." Thomas, 2012 Ark. 66, at 8-9, 399
S.W.3d at 392.
Officer Ziegenhorn was off duty when he encountered Mr.
Tanner and did not create a report of the encounters. Mr.
Sadler testified that any documents pertaining to these
encounters were "part of the internal affairs
investigation" regarding Officer Ziegenhorn and that no
suspension or termination resulted from the investigation.
Thus, any documents were created at the behest of the
Arkansas State Police to determine Officer Ziegenhorn's
performance or lack thereof regarding these encounters with
Mr. Tanner, and no suspension or termination resulted
therefrom. We hold that the circuit court's finding that
these documents were ...