Question: Is the custodian’s decision to release the requested records with redactions consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: In my opinion, the custodian’s decisions are mostly consistent with the FOIA. The custodian has correctly classified the first four records as the employee’s personnel records and has properly redacted certain exempt information from them. However, the second personnel record appears to contain the employee’s personal email address. If so, that information should be redacted before the record is released. The custodian has also correctly classified a suspension letter as an employee-evaluation record and has redacted what appears to be the employee’s home address and employee identification number. If that is the information that was redacted, that decision is likewise consistent with the FOIA.
Question 1: Is the county required to pay for clothing for indigent defendants to wear to court appearances pursuant to these statutes or any other law? Regardless of whether it is required to pay, may the county lawfully pay for this expense if it so chooses?
Brief Response: The county is not required to pay for clothing for indigent defendants to wear at court appearances. But Amendment 55 and A.C.A. §§ 14-14-802(a)(1), 14-14-802(b), and 14-20-102(a) likely allow a county to purchase clothing for indigent defendants to wear at court appearances before juries.
Question 2: Is the Public Defender Commission required to pay for such clothing pursuant to these statutes or any other law? Regardless of whether it is required to pay, may the Public Defender Commission lawfully pay for this expense if it so chooses?
Brief Response: No, the Public Defender Commission is not required to pay for clothing for indigent defendants to wear at jury trials or other court appearances. And no state law expressly authorizes the Commission to purchase clothing for indigent defendants.
Question 3: May the indigent defendants keep any clothing purchased by the county, or must it be returned to the county after use?
Brief Response: In general, if the county purchases clothing for indigent defendants, that clothing would constitute county personal property. And the county ordinarily may not donate such property to private individuals. However, a reviewing court would likely find that the quorum court may, under A.C.A. § 14-20-102(a)(4), enact an ordinance to either (1) designate the clothing as a consumable expenditure that need not be returned to the county or (2) authorize the county judge to transfer title to the clothing to the defendant as an indigent-defense expenditure.
Question 4: May the indigent defendants keep any clothing purchased by the Public Defender Commission, or must it be returned to the county after use?
Brief Response: Please see my response to Question 2.
Question 5: May the Quorum Court lawfully appropriate county funds for this purpose?
Brief Response: Probably yes; a reviewing court would likely find that a quorum court may appropriate county funds for this purpose because (1) no state law prohibits the expenditure and (2) the expenditure is sufficiently related to county affairs under Amendment 55 and A.C.A. §§ 14-14-802 and 14-20-102(a).
Question 6: Assuming that a county may lawfully pay this expense and funds may lawfully be appropriated, may a Circuit or District Court lawfully order the county to pay for this expense, or must such an expense be approved by the County Judge through the regular approval and disbursement process for county claims set forth in Amendment 55, Section 3?
Brief Response: As discussed above, the county is not required to pay for clothing for indigent defendants to wear at court appearances. Thus, a circuit or district court cannot lawfully order the county to pay for this expense, and the expense must be approved through the county’s regular approval and disbursement process for county claims.
Question 7: May the County Treasurer lawfully pay such an expense without an approved claim from the County Judge?
Brief Response: Please see my response to Question 1. A reviewing court would likely find that Amendment 55 allows a county to pay this expense through its regular approval and disbursement process for county claims.
Question: Are the custodian’s decisions to classify the requested records as personnel records and employee-evaluation records and to release those records with redactions consistent with the Arkansas Freedom of Information Act (FOIA)?
Brief Response: In my opinion, the custodian’s decisions are partially consistent with the FOIA. The custodian has correctly classified the first three groups of records as personnel records and has properly determined that they are subject to release, with the employee’s personnel number redacted. With respect to the fourth set of records, I cannot definitively say whether every record in that set has been properly classified as an employee-evaluation record because the copies provided to this Office contain extensive redactions. I can say, however, that at least the first portion of that set—the Notice of Disciplinary Action—qualifies as an evaluation record. The custodian’s determination that the employee-evaluation records are releasable is also consistent with the FOIA because the employee was suspended, his suspension is final, the records relate to that suspension, and there is a compelling public interest in their disclosure. The custodian has, however, made extensive redactions to the records that she has classified as employee-evaluation records. As a general matter, when an employee-evaluation record is subject to disclosure, it should be released in its entirety, and redactions should be made only if a separate exemption applies. If the custodian’s redactions to the evaluation records are based on A.C.A. § 25-19-105(b)(12)’s balancing test, those redactions are improper. I cannot definitively reach that conclusion, however, because the custodian has not provided this Office with unredacted copies of the records and has not identified the basis for the redactions. Under A.C.A. § 25-19-105(a)(3)(B), if responsive records are subject to exemptions, the custodian must identify the applicable exemptions.
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