Thomas v. Hall

• Court: Arkansas Supreme Court
• Writing for the Court: ROBERT L. BROWN
• Citation: Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Ark. 2012)
• Decision Date: 16 February 2012
• Docket Number: No. 11–1199.,11–1199.
• Parties: Stuart THOMAS, Appellant v. Keith HALL, Appellee.

2012 Ark. 66

399 S.W.3d 387

Stuart THOMAS, Appellant

v.Keith HALL, Appellee.

No. 11–1199.

Supreme Court of Arkansas.

Feb. 16, 2012.

Thomas M. Carpenter, Office of the City Attorney, for appellant.

Keith Hall and Valerie Thompson Bailey, for appellee.

Quattlebaum, Grooms, Tull & Borrow PLLC, by: John E. Tull III, E.B. Chiles IV, and Amber Davis-Tanner, Little Rock, for amicus curiae Arkansas Press Association.

ROBERT L. BROWN, Justice.

The sole issue in this appeal is whether use-of-force reports prepared by Lieutenant David Hudson of the Little Rock Police Department are exempt from disclosure under the Arkansas Freedom of Information Act (FOIA). We conclude that they are not exempt, and we affirm for that reason.

On October 29, 2011, an incident arose in front of Ferneau Restaurant in Little Rock, which resulted in the use of force by Little Rock Police Lieutenant Hudson against Chris Erwin. Erwin was charged with three misdemeanor offenses: criminal trespass, resisting arrest, and disorderly conduct. Lieutenant Hudson subsequently wrote a narrative report to his supervisor on October 30, 2011, describing the incident and why he used force against Erwin. On November 14, 2011, Keith Hall, attorney for Erwin, filed a petition against Stuart Thomas, Chief of Police at the Little Rock Police Department, in his capacity as the custodian for the records of the Little Rock Police Department, in which he alleged that Chief Thomas violated the FOIA, codified at Arkansas Code Annotated section 25–19–101 through 25–19–110, by failing to produce Hudson's reports regarding his use of force. ¹ In his petition for a hearing and a determination of his citizen request for access to public information, Hall alleged that he initially requested these reports prepared by Lieutenant Hudson on November 7, 2011, but that no reports had been produced pursuant to his request as of November 14, 2011. On November 14, 2011, Hall submitted a second FOIA request to Chief Thomas, and requested disclosure of “all writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium requiredby law to be kept or otherwise kept and that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee.” Through these requests, Hall sought the four use-of-force reports that were prepared by Lieutenant Hudson, including the report prepared following the October 29, 2011 incident at Ferneau.² On November 15, 2011, the City of Little Rock responded to both FOIA requests but withheld all four use-of-force reports.

On November 22, 2011, a hearing was held in accordance with Arkansas Code Annotated section 25–19–107(b), which mandates that upon written application by a person whose rights under FOIA have been violated, the circuit court shall conduct a hearing within seven days. After considering testimony and arguments of counsel, the circuit court directed that Chief Thomas produce the four use-of-force reports prepared by Lieutenant Hudson for an in camera inspection by noon on November 23, 2011. The reports were delivered to the circuit court as directed.

On November 28, 2011, the circuit court entered an order finding that Lieutenant Hudson's use-of-force reports were public records involved in the performance of an official duty. The court also found that the use-of-force reports were unrelated to termination or suspension proceedings regarding Lieutenant Hudson or any other employee. The court, accordingly, concluded that the use-of-force reports did not fall within the FOIA exemption for “employee evaluation or job performance records,” which is found at Arkansas Code Annotated section 25–19–105(c)(1).

On November 29, 2011, the circuit court entered an amended and substituted order detailing the court's reasoning behind its decision ordering the four narrative reports to be delivered immediately to Hall. Chief Thomas filed a notice of appeal on November 29, 2011. Chief Thomas also sought an emergency stay pending this appeal, which this court granted on December 6, 2011. This court placed the four use-of-force reports under seal by per curiam order dated January 11, 2012. See Thomas v. Hall, 2012 Ark. 4, 2012 WL 90023 (per curiam).

We turn then to the issue of whether the four use-of-force reports prepared by Lieutenant Hudson fall within the definition of “employee evaluation or job performance records” under Arkansas Code Annotated section 25–19–105(c)(1), and, are, as a consequence, exempt from disclosure under FOIA.³ Chief Thomas argues that these use-of-force reports are exempt as employee-evaluation or job-performance records, because they are created so that supervisors can evaluate whetherthe police officer performed his or her duties pursuant to departmental policy. In response, Hall contends that the use-of-force reports at issue present narrative accounts of the circumstances surrounding Lieutenant Hudson's use of force; that they contain no “evaluation” of the police officer's job performance by a supervisor; and that the reports would be created even if no investigation resulted from the police officer's use of force. Hall claims, in sum, that these reports are not employee-evaluation or job-performance records and are subject to disclosure.

On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. Fox v. Perroni, 358 Ark. 251, 188 S.W.3d 881 (2004). However, in the absence of a showing that the circuit court erred in its interpretation of the law, its interpretation will be accepted as correct on appeal. Id. We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner. Id. Furthermore, this court broadly construes the Act in favor of disclosure. Id. In conjunction with these rules of construction, we narrowly construe exceptions to the FOIA to counterbalance the self-protective instincts of the government bureaucracy. Ark. Dep't of Fin. & Admin. v. Pharmacy Assoc., Inc., 333 Ark. 451, 970 S.W.2d 217 (1998). A statutory provision for nondisclosure must be specific. Id. Less than clear or ambiguous exemptions will be interpreted in a manner favoring disclosure. Id. At the same time, we will balance the interests between disclosure and nondisclosure, using a common sense approach. Id.

We are also bound by the general canons of statutory construction that apply to this case. The basic rule of statutory construction is to give effect to the intent of the General Assembly. White County v. Cities of Judsonia, Kensett and Pangburn, 369 Ark. 151, 251 S.W.3d 275 (2007). In determining the meaning of a statute, the first rule is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. We construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible. Id. When the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory construction. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Id.

The FOIA provides for disclosure, upon request, of certain “public records,” including writings that constitute a record of the performance or lack of performance of official functions that are or should be carried out by a public official or employee. Ark.Code Ann. § 25–19–103(5)(A) (Supp.2011). Further, all records maintained in public offices or by public employees within the scope of their employment are presumed to be public records. Id. That the use-of-force documents involved in this case are public records is not disputed by the parties.

As already noted, there are exceptions to the disclosure of public records, including the exemption of “employee evaluation and job performance records” under certain circumstances:

Notwithstanding subdivision (b)(12) of this section, all 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).

The FOIA provides no comprehensive definition of “employee evaluation or job performance records,” and this court has yet to interpret this language. As addressed above, the first rule in statutory construction is to give effect to the intent of the legislature. See White County, supra. In 1987, the General Assembly amended sections of the FOIA in order to clarify what records are not open to the public, including personnel records and employee-evaluation records. See Act of Feb. 16, 1987, No. 49, 1987 Ark. Acts 111. The emergency clause in section 5 of Act 49 of 1987 specifically sets forth the General Assembly's intention behind its amendments to the FOIA:

It is hereby found and determined by the General Assembly that considerable confusion has existed regarding public access to personnel records and employee evaluation records under Act 93 of 1967, as amended; ... that, as a general matter, the confidentiality of personnel records and employee evaluation records is in the public interest to ensure the privacy of employees and the efficacy of the employee evaluation process; that such records should, however, be open to public inspection in certain circumstances; that guidance from the Attorney General and additional enforcement mechanisms, including attorney fees, litigation costs, and criminal penalties, are necessary to...