Can an Arkansas custodian withhold internal investigation records of an employee who was initially terminated but ended up resigning under a negotiated settlement?

Plain-English summary

Washington County Attorney George Butler asked AG Dustin McDaniel about a Sheriff's Office deputy whose situation didn't fit the usual FOIA termination-records pattern. The deputy had been "terminated" for not complying with department policies. The deputy filed a grievance. Before a hearing happened, the parties negotiated a settlement under which the original termination was lifted and the deputy resigned "due to medical reasons."

A FOIA requester then asked for "termination papers" for all employees terminated from April 1, 2014 through May 12, 2014. The deputy's situation was within scope. The custodian wanted to withhold the deputy's internal investigation records. The question: was the custodian right?

The AG said yes. The reasoning turned entirely on the four-part test for releasing employee-evaluation records under A.C.A. § 25-19-105(c)(1):

1. Level of discipline (suspended or terminated): met. The deputy was initially terminated.
2. Finality (final administrative resolution of the termination proceeding): not met. The deputy filed a grievance, so the termination wasn't yet final. The settlement lifted the termination before any final decision. The deputy then resigned. Because the termination was undone by settlement, the proceeding never finalized as a termination.
3. Basis (records formed a basis for the disciplinary decision): not satisfied either, because there was no final disciplinary decision for the records to be the basis of.
4. Compelling public interest: not reached.

So the records had to stay withheld. The AG also classified them correctly: internal investigation records that document misconduct are "employee evaluation or job performance records" under Thomas v. Hall, 2012 Ark. 66, because they were (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) detail performance or lack of performance on the job.

The AG flagged one caveat: prior AG opinions have held that a "coerced resignation" can count as a constructive termination for purposes of element 1. A coerced resignation, as the AG put it, is one made "in the face of certain, impending termination." Whether a resignation is coerced is a factual question for the custodian. In this case, neither the county attorney nor the custodian believed the resignation was coerced; the AG noted he had no way to investigate that determination.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When an Arkansas public employee is terminated but then settles and resigns, are the internal investigation records still releasable under FOIA?
At the time of this opinion, no. The four-part test for releasing employee-evaluation records requires "final administrative resolution" of a suspension or termination proceeding. If the termination is lifted by settlement and the employee resigns, the proceeding never finalizes as a termination, and the records must stay withheld.

What counts as a "coerced resignation" for FOIA purposes?
A coerced resignation is one made "in the face of certain, impending termination." If the employer made clear that termination was imminent and the employee resigned to avoid being terminated, the AG's prior opinions treat that as a constructive termination. Whether a given resignation was coerced is a factual question for the custodian.

What are "employee evaluation or job performance records" under Arkansas FOIA?
Under Thomas v. Hall, 2012 Ark. 66, they are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that detail the employee's performance or lack of performance on the job. Internal investigation records that document misconduct fit this definition.

Why does the Arkansas FOIA shield internal investigation records when there's no final termination?
The legislature wanted to preserve the confidentiality of the formal evaluation process so employers and employees can speak honestly during investigations and discipline. Releasing the records of inconclusive or settled proceedings would chill that exchange and could publicly stigmatize employees who weren't ultimately terminated for cause.

Does the same rule apply to internal investigations that end with no discipline at all?
Yes. If the employer never reaches a final suspension or termination, the four-part test is not met, and the evaluation records stay protected. The "finality" prong is doing the work.

What if the records are also "personnel records" under § 25-19-105(b)(12)?
A document is usually either an "evaluation record" or a "personnel record," not both. Personnel records use a different test: release unless disclosure would be a "clearly unwarranted invasion of personal privacy." Internal investigation records that detail performance are typically evaluation records and get the more protective four-part test.

Background and statutory framework

This 2014 opinion is the second of three FOIA opinions from the same Washington County records custodian inquiry (the related opinion is 2014-052). It walks through the same statutory framework but with different facts that change the outcome.

The relevant statutes:

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013): the procedural mechanism for asking the AG for a FOIA opinion on personnel/evaluation record release decisions.
• A.C.A. § 25-19-105(c)(1) (Supp. 2013): the four-part test for releasing employee evaluation or job performance records.
• A.C.A. § 25-19-105(b)(12): personnel records exception (release with limited privacy carve-outs).

The Arkansas Supreme Court's definition of "employee evaluation or job performance records" comes from Thomas v. Hall, 2012 Ark. 66. The court identified three elements: created by or at the behest of the employer, to evaluate the employee, that detail performance or lack of performance.

The AG's prior opinions develop the doctrine:

• Op. 2008-065: discusses the four elements of the release test.
• Op. 2012-019: defines "coerced resignation" as resignation in the face of "certain, impending termination."
• Op. 96-168: identifies the purpose of the evaluation-record exception (confidentiality to promote honest exchange).
• Op. 97-368: lists typical personnel-file contents.
• Ops. 2009-067, 2008-004, 2005-030, 2004-211, 2003-073, 93-055: definition of evaluation records as covering investigation records of misconduct.

The Watkins & Peltz treatise (5th ed. 2009) is the leading commentary on Arkansas FOIA. The opinion cites pp. 187-89 for personnel-file contents and pp. 204, 217-18 for the compelling-interest analysis.

The 2014 opinion's key move is that without final termination, you can never get past element 2 of the four-part test. The records that would have been releasable if the termination had stuck instead remain confidential. This protects the settled employee from public stigma over conduct that may not have actually warranted termination on full review.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (procedural mechanism for AG FOIA opinion)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (four-part test for evaluation records)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• Thomas v. Hall, 2012 Ark. 66 (definition of employee evaluation or job performance records)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Ark. Law Press, 5th ed. 2009), pp. 187-89, 204, 217-18
• Op. Att'y Gen. 97-368 (typical personnel-file contents)
• Ops. Att'y Gen. 2009-067, 2008-004, 2005-030, 2004-211, 2003-073, 93-055 (evaluation-record definition)
• Op. Att'y Gen. 2008-065 (four-part test elements)
• Op. Att'y Gen. 96-168 (purpose of exception)
• Op. Att'y Gen. 2012-019 (coerced resignation doctrine)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2014-054
May 22, 2014
George Butler, Jr.
Washington County Attorney
280 North College, Suite 501
Fayetteville, Arkansas 72701

Dear Mr. Butler:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian's attorney, is based
on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013). This subsection authorizes the
custodian, requester, or the subject of personnel or employee evaluation records to
seek an opinion from this office stating whether the custodian's decision regarding
the release of such records is consistent with the FOIA.

Your correspondence indicates that someone has made an FOIA request for the
"termination papers for all employees of the Washington County Sheriff's Office
who were terminated" from "April 1, 2014 through today [i.e., May 12, 2014]."
The custodian believes that a certain employee falls within the scope of this
request. This employee, a deputy first class, was "terminated" for not complying
with departmental policies. You also explain that the employee "filed a grievance,
but before a hearing was held, a settlement was negotiated in which the employee
was allowed to resign due to medical reasons."

The custodian has determined that the internal investigation records that formed
the basis for the former employee's departure qualify as employee evaluation
records. Further, the custodian has determined that the test for disclosure of such
records has not been met (1) "due to the fact that there is no public controversy"
about the matter and (2) "due to the fact that the employee was allowed to resign
due to medical reasons."

You, on the custodian's behalf, ask whether these decisions are consistent with the
FOIA.

RESPONSE

Based on the limited information before me, I believe that the custodian has
correctly classified the records as employee-evaluation records and correctly
withheld the records from disclosure.

DISCUSSION

I. General Rules Governing Disclosure

A document must be disclosed in response to a FOIA request if all three of the
following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public record.
Third, no exceptions allow the document to be withheld. There is no question that
the first two elements are met in this case. Thus, I will only analyze the final
element: whether there are any exceptions that shield the documents from
disclosure.

a. Exceptions to Disclosure

Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files. For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records" or "employee
evaluation or job performance records." The test for whether these two types of
documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular
record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that the record be disclosed.

b. Employee-Evaluation Records

Because the records at issue have been classified as "employee evaluation or job
performance records," I will only focus on that exception. While the FOIA does
not define the term "employee evaluation or job performance records," the
Arkansas Supreme Court has held that the term refers to any records (1) created by
or at the behest of the employer (2) to evaluate the employee (3) that detail the
employee's performance or lack of performance on the job. This exception
includes records generated while investigating allegations of employee misconduct
that detail incidents that gave rise to an allegation of misconduct.

The custodian has determined that the internal investigation records qualify as the
former employee's employee evaluation records. Based on the information
provided to me, I believe that decision is consistent with the FOIA.

Having settled the question whether the records meet the definition of an
employee evaluation record, we must move to the question whether the FOIA
requires that the record be withheld from disclosure. The FOIA states that
employee evaluation records cannot be released unless all the following elements
have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or
   termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that
   proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).

The primary purpose of this exception is to preserve the confidentiality of the
formal job-evaluation process in order to promote honest exchanges in the
employee/employer relationship.

We are now in a position to apply the elements of the foregoing test to the type of
records at issue here. The employee was initially terminated, thus meeting the first
element. But the employee initiated the administrative grievance process, which
meant that the termination was not yet final. Apparently, during the settlement
negotiations, the initial termination was lifted and the employee resigned.
Consequently, the initial termination never became final, which means that
element 2 (i.e., finality) was never met. Therefore, the internal investigation
records did not form the basis for a final suspension or termination and,
consequently, cannot be released.

This office has frequently pointed out that if a resignation were "coerced," then that might be
sufficient to qualify as a constructive termination for purposes of element 1. A "coerced resignation"
is, what this office has referred to as, a resignation in the face of "certain, impending termination."
Whether any particular resignation amounts to a "coerced resignation" is a question of fact that must
be decided by the custodian. Apparently, neither you nor the custodian believes there was a
constructive termination in this instance. When issuing opinions, I have no way to investigate or
otherwise look behind such a determination.

Therefore, based on the limited information before me, I believe that the custodian
has correctly classified the records as employee-evaluation records and correctly
withheld the records from disclosure.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:RO/cyh