Young v. Rice, 91-194

• Decision Date: 09 March 1992
• Docket Number: No. 91-194,91-194
• Citation: 826 S.W.2d 252,308 Ark. 593
• Parties: , 20 Media L. Rep. 1029 Steve YOUNG, Appellant, v. Britt RICE and the City of Little Rock, Appellees.
• Court: Arkansas Supreme Court

Page 252

826 S.W.2d 252

308 Ark. 593, 20 Media L. Rep. 1029

Steve YOUNG, Appellant, v. Britt RICE and the City of Little Rock, Appellees.

No. 91-194.

Supreme Court of Arkansas.

March 9, 1992.

Robert A. Newcomb, Little Rock, for appellant.

Ed Adcock, Little Rock, for appellee.

CORBIN, Justice.

Appellant, Steve Young, appeals an order of the Pulaski County Circuit Court, denying his request for access to certain information concerning the December 1990 promotions to lieutenant in the Little Rock Police Department. We have jurisdiction of this appeal because it requires the interpretation of the Arkansas Freedom of Information Act, specifically Ark.Code Ann. § 25-19-105(b)(10) (Supp.1991). The issue is whether the requested information is a personnel record that is exempt from disclosure under the FOIA because its release would constitute a clear unwarranted invasion of personal privacy. The trial court concluded that it was such an invasion. We affirm.

A brief discussion of the department's lieutenant promotion examination is helpful in understanding this case. Two employees of the city's personnel office testified that this examination has two components, a written examination and an assessment center evaluation. The assessment center portion of the test is a procedure where out-of-state police officers, equal to the rank of lieutenant or higher, observe the promotion candidates in three situations which are representative of the requirements of the job of a lieutenant. The first phase of the assessment center evaluation, the "in-basket" phase, is a test of the candidate's ability to respond in writing to typical demands of a lieutenant. In the second phase, the "coaching and counseling" phase, the candidate plays the role of a lieutenant and advises a subordinate, played by the assessor, who has a performance problem. In the third phase, the "leaderless group discussion," the assessors observe the interaction of four or five candidates who are given a scenario and asked to make recommendations thereon to the chief. The second and third phases of the assessment center evaluation are taped. In all three phases, the assessors observe the candidates' behavior, take notes, and summarize their observations in an "assessor report form" which each assessor prepares for each candidate. In the assessor report form, the assessor rates the candidate on a five-point scale, with one representing poor performance and five representing outstanding performance, in eleven competency categories. The assessor then gives a written summarization of the candidates' behavior in each of the eleven competency categories.

In January 1991, appellant made two FOIA requests of the city's personnel office concerning records from the lieutenant promotion examination. Specifically, appellant requested all records pertaining to the assessment center evaluation portion of the lieutenant examination conducted on December 13, and 14, 1990. Appellant also requested any correspondence concerning the examination between the personnel office and any other agency. The city responded to the requests by stating that it would release the requested information only as it related to appellant; to release the requested information as it related to the other candidates would be an unwarranted invasion of their privacy. The city offered to release the assessor report form for each candidate with the respective names of the candidates deleted. The city also informed appellant that there was no correspondence between the personnel office and any other agency.

Dissatisfied with the city's response to his request, appellant filed a complaint in circuit court asking that he be allowed to inspect and copy the requested records to determine if there had been a manifest error in the grading of the assessment center portion of the lieutenant test. After a bench trial, the trial judge entered its order identifying these records as personnel records and stating that "[a]fter an in camera inspection of the materials generated during the assessment phase of the promotion examination, the Court finds that to produce these materials in association with the names of the individuals would be a clear unwarranted invasion of privacy." The trial court further found that the right of public scrutiny would be satisfied by the release of the assessor report forms with the names of the candidates deleted but with the names of the assessors intact.

On appeal, we do not set aside the trial court's findings unless they are clearly erroneous. ARCP Rule 52(a). The trial judge carefully considered the evidence and concluded that the release of the requested information would constitute a clearly unwarranted invasion of privacy. We cannot say this conclusion was clearly erroneous.

Under our FOIA, records kept in the scope of public employment are presumed to be public records. Ark.Code Ann. § 25-19-103(1) (1987). However, even if a record is considered to be a public record, it may be exempt from disclosure under the FOIA or some other statute. Section 25-19-105 provides specific exemptions from disclosure. Any exemption from disclosure is to be narrowly construed. Legislative Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987). When the scope of an exemption is unclear or ambiguous, we interpret it in a manner that favors disclosure. Ragland v. Yeargan, 288 Ark. 81, 702 S.W.2d 23 (1986). There is no dispute over the fact that the records requested in this case are public records. Thus, appellee, as the keeper of the requested records, has the burden of proving the records are exempt from disclosure. We conclude appellee has met its burden.

From the first time appellant made his FOIA requests, appellee has maintained that the requested records are exempt from disclosure under section 25-19-105(b)(10). That section states that:

(b) It is the specific...