Ark. high court rules use-of-force reports are public records

The Arkansas Supreme Court upheld a lower court’s decision yesterday confirming that police officers' self-prepared reports – detailing instances where force was used – are subject to public release under the state's Freedom of Information Act.

Police in Little Rock tried unsuccessfully to withhold the reports under an exemption in the Arkansas FOIA for “employee evaluation and job performance records,” arguing the reports were created as an evaluative tool to ensure police officers were performing their duties in accordance with department policy.

Ruling in favor of disclosure, the Court stated in its opinion, "We liberally interpret the FOIA to accomplish its broad and laudable purpose that public business be performed in an open and public manner."

This decision comes after the Little Rock Police Department failed to provide four use-of-force reports filed by one of its officers, Lt. David Hudson. The reports, detailing four different incidents, were requested after Hudson forcefully arrested a man outside a Little Rock restaurant on Oct. 29.

Following police protocol, Hudson wrote a use-of-force report to his superior the next day describing the incident and explaining why force was used in the arrest of Chris Erwin. In a video filmed by a bystander and posted on YouTube by Erwin's attorney, Keith Hall, an officer identified as Hudson is seen taking Erwin to the ground as witnesses try to step in.

But the video does not show the entire incident. To fill in the gaps, Hall said he requested the reports – submitted by Hudson – from this and three previous incidents involving the officer.

But when the city responded to his request, those particular reports were withheld. Hall then filed a petition for a court hearing against the chief of police, Stuart Thomas, alleging that Thomas – as the police department's custodian of records – violated the open records law.

Under Arkansas's open records law, employee evaluations and job performance records created by superiors — such as written reprimands and letters of recommendation — are generally exempt from public disclosure, the court ruled, but documents filed regularly by employees throughout the course of their duties are not. The FOIA exemption was originally established to protect the privacy of employees and the evaluation process, the court explained in its ruling.

Thomas argued that the use-of-force reports were exempt from public disclosure because they could potentially be used in an employee evaluation or internal investigation.

“These reports are not written evaluations of the police officer’s actions prepared by a supervisor; nor do they contain any notations or comments about the officer’s conduct by the supervisor,” the court said in its ruling.

The court held that these reports are simply the officer's personal narrative of an incident and are not created as part of an evaluation of the officer's performance, and, while a report might be used later in an evaluation by superiors, this does not necessarily turn it into an "evaluation or job-performance record[ ]."

"It’s one less place for the city to hide," Hall said. "I get the sense that they’ve been using this employee evaluation tactic for quite some time when the press has asked for documents about a police officer’s past and they can’t do that anymore."