Can a school board's letter recommending the superintendent's termination be withheld from a FOIA request as an unresolved personnel matter?
Plain-English summary
State Representative Ken Bragg asked whether a Sheridan School Board letter recommending the termination of Superintendent Jarrod Williams should be made public under the Arkansas Freedom of Information Act. The board had voted in executive session to recommend termination and to list the reasons in the letter. The board's lawyer was withholding the letter as an "unresolved personnel matter."
The AG's answer was: it depends on what "unresolved" means. The letter is exempt while there has been no final administrative resolution of the termination. If the superintendent still has a right to a hearing under Ark. Code Ann. § 6-17-301, the matter is not yet final and the letter stays exempt. Once the administrative process ends (the hearing has happened, or the superintendent has waived it), the analysis changes and the letter may have to be disclosed.
The AG's three-part FOIA framework: a record must be released if (1) the request is to an entity covered by the act, (2) the document is a "public record," and (3) no exemption applies. The first two were obviously met here. The third turned on the "employee evaluation or job performance records" exemption at Ark. Code Ann. § 25-19-105(c)(1). The Arkansas Supreme Court in Thomas v. Hall (2012) defined that exemption to cover records (1) created by or at the behest of the employer, (2) for purposes of evaluating the employee, (3) detailing performance or lack of performance. A termination letter listing reasons fits the test. The exemption shelters the letter until the termination is administratively final. Even after that, two further conditions must be met before disclosure: the letter must have formed a basis for the termination, and there must be a "compelling public interest" in disclosure. Both are statutory prerequisites under § 25-19-105(c)(1).
The result is a layered rule. While the superintendent's termination is still pending administrative resolution, the public does not get the letter. Once the process is complete, FOIA disclosure depends on the basis-for-termination and compelling-public-interest tests, both of which are case-specific.
What this means for you
School boards and school district attorneys
When you put termination reasons in a letter and vote on it in executive session, treat the letter as an employee-evaluation record. Withhold it from FOIA requests until the termination is administratively final under § 6-17-301. After the hearing (or after the superintendent waives it), reassess whether the letter formed a basis for the termination and whether there is a compelling public interest in disclosure. Document your basis-for-termination analysis so that disclosure decisions later can be defended. Consult district counsel before responding to any FOIA request that touches a personnel record; the categories overlap (personnel records, evaluation records, employment contracts) and the exemption boundaries depend on the specific document.
Superintendents and school employees facing termination
You have a statutory right to "[n]otice of the reason for termination" and "[a] hearing to allow the superintendent to explain or rebut the reasons stated in the notice" (Ark. Code Ann. § 6-17-301(b)(2)(A), (B)). The hearing must be recorded at district expense (id. (C)). Your lawyer can advise on whether to invoke the hearing and how the timing of any FOIA disclosure interacts with your hearing rights.
Journalists and FOIA requesters
A school board termination letter that has been voted on but is not yet administratively final is exempt under Arkansas law. If you are denied disclosure on this ground, ask whether there has been a hearing or a waiver. Once the termination is final, the calculus shifts. Disclosure may turn on whether the document formed a basis for the termination and whether you can articulate a compelling public interest. Both are common litigation grounds in FOIA challenges.
General readers
Arkansas FOIA strongly favors disclosure of public records, but employee-evaluation records sit in a special category. The state's policy balances the public's interest in open government against the employee's interest in fair process before evaluation records leave the personnel file. The Sheridan letter is an example: the public will likely be entitled to the letter eventually, but only after the administrative process plays out.
Common questions
Q: What test does Arkansas use for "employee evaluation or job performance records"?
A: The Arkansas Supreme Court's three-part test in Thomas v. Hall (2012) 2012 Ark. 66, 399 S.W.3d 387: a record qualifies if (1) the employer or someone at the employer's behest created it, (2) the purpose was to evaluate the employee, and (3) the content details performance or lack of performance.
Q: Does a termination letter automatically qualify as an evaluation record?
A: Letters of termination that contain the reasons for termination are routinely classified as employee-evaluation records by the Arkansas AG (citing Ops. Att'y Gen. 2020-001, 2012-077, 2001-276). A termination letter without reasons might not.
Q: What does "final administrative resolution" mean?
A: It means the final decision-making step taken by the employing entity, after which there is no further administrative recourse within the entity. Continued disputes by the employee, or potential judicial review, are "immaterial" for the exemption analysis (citing the Watkins/Peltz-Steele/Steinbuch FOIA treatise). For a school superintendent under § 6-17-301, the hearing process is administrative; once that hearing is complete (or waived) and the board acts, the matter is final.
Q: After the matter is final, does the letter automatically become public?
A: Not automatically. Two more requirements apply under § 25-19-105(c)(1). The letter must have formed a basis for the termination, and there must be a compelling public interest in disclosure. Either condition is open to dispute, and the school district can lawfully withhold a letter that fails either test.
Q: What if the superintendent waives the hearing?
A: Waiver completes the administrative process. After waiver, the matter is final for FOIA purposes, and the basis-for-termination and compelling-public-interest tests apply.
Q: Does the exemption apply if the board votes on the letter in open session rather than executive session?
A: The mode of voting does not directly drive the exemption. The exemption focuses on what kind of record it is and whether the underlying personnel action is final, not where the vote happened. That said, school board open-meeting and executive-session rules under the Arkansas FOIA can interact with the personnel exemption in complex ways; consult counsel.
Q: Is the Arkansas FOIA the same as the federal FOIA?
A: No. Arkansas has its own statute (Ark. Code Ann. § 25-19-101 et seq.) with distinct rules and exemptions. The federal FOIA applies only to federal-agency records.
Q: Can the school district share the letter with the superintendent's lawyer or the press once it is final?
A: The superintendent has access to the letter as the subject of the personnel record. Disclosure to the press depends on the FOIA analysis above. Some districts settle litigation by agreeing to disclose certain records in exchange for releases; that is a separate legal track from FOIA.
Background and statutory framework
The Arkansas FOIA is codified at Ark. Code Ann. § 25-19-101 et seq. § 25-19-103(7)(A) defines "public records" as writings required by law to be kept or otherwise kept that constitute a record of the performance or lack of performance of official functions by a public official or employee. § 25-19-105(c)(1) sets out the employee-evaluation exemption.
A FOIA disclosure question runs through three steps (Nabholz Constr. Corp. v. Contractors for Pub. Prof. Ass'n., 371 Ark. 411 (2007), citing Legislative Jt. Auditing Comm. v. Woosley, 291 Ark. 89 (1987)):
1. Is the request directed to an entity covered by the act?
2. Is the requested document a public record?
3. Does any exemption allow withholding?
The school district plainly qualifies as a public entity. A board letter recommending termination is a public record. The dispositive question becomes whether an exemption applies.
The employee-evaluation exemption at § 25-19-105(c)(1) covers records created by or at the employer's behest to evaluate the employee, detailing performance or lack of performance (Thomas v. Hall (2012) 2012 Ark. 66). For records that qualify, disclosure is permitted only if (a) there has been a final administrative resolution of the suspension or termination, (b) the record formed a basis for the suspension or termination, and (c) there is a compelling public interest in disclosure.
For a school superintendent, Ark. Code Ann. § 6-17-301 sets the procedural framework. A superintendent's contract may be terminated for cause if the superintendent received notice of the reason and was given a hearing to explain or rebut, with a recorded transcript at district expense.
The opinion left "compelling public interest" as a fact-specific question without trying to resolve it generally.
Citations
- Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
- Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
- Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exemption)
- Ark. Code Ann. § 6-17-301 (procedure for terminating a school superintendent)
- Nabholz Constr. Corp. v. Contractors for Pub. Prof. Ass'n., 371 Ark. 411, 266 S.W.3d 689 (2007)
- Legislative Jt. Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Ops. Att'y Gen. 2020-001, 2012-077, 2001-276 (treating termination letters with reasons as evaluation records)
- John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 232 (Arkansas Law Press, 6th ed. 2017)
Source
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked official source is authoritative.
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2022-014
May 25, 2022
The Honorable Ken Bragg
State Representative
63 Pinecrest Circle
Sheridan, AR 72150-9704
Dear Representative Bragg:
This is in response to your request for an opinion concerning the Arkansas Freedom of Information Act ("FOIA"). You have provided the following background for your question:
During an executive session, the Sheridan School Board voted unanimously to send Superintendent Jarrod Williams a letter stating the board had voted to recommend Williams be terminated. The motion also stated the reason for his termination would be listed in the letter. The board's legal counsel has declined to make the letter public, saying the letter is exempt because it is about an unresolved personnel matter.
Against this background, you ask:
[S]hould the letter, under the state FOI Act, be made public?
RESPONSE
The answer to your question is "no" if by "unresolved personnel matter" you mean there has been no final administrative resolution of the board's recommendation that the superintendent be terminated.
DISCUSSION
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.
The first two elements are plainly met in this case. The letter in question is held by the school district, which is a public entity. And a letter from a school board informing a superintendent of its termination recommendation plainly constitutes a "public record." Accordingly, the letter must be disclosed unless some specific exception provides otherwise.
The limited information before me indicates that the relevant exception is the FOIA exemption for "employee evaluation or job performance records." This 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. With regard, specifically, to letters of termination such as the one in question, this office has consistently opined that such letters constitute employee-evaluation records if they contain the reasons for the termination. The background information you have provided indicates that the letter in this case lists the reason for the superintendent's termination. Although your correspondence does not identify the legal basis for the school board's actions concerning the superintendent, the board presumably was acting pursuant to Ark. Code Ann. § 6-17-301, which provides that a superintendent's contract of employment may be terminated for cause if the superintendent was given "[n]otice of the reason for termination" and "[a] hearing to allow the superintendent to explain or rebut the reasons stated in the notice." I take it that the letter supplied the requisite "notice."
As an employee-evaluation record, the letter is exempt from disclosure under the FOIA if there has been no "final administrative resolution" of the superintendent's termination. The termination must be final in the sense that all administrative avenues of appeal have been exhausted. As stated by several FOIA commentators, "[t]he term 'final administrative resolution' refers to the final decision-making step taken by the employing entity . . . ." The fact that an employee may continue to dispute the decision or that judicial review might still be available is "immaterial."
The answer to your question thus turns on the meaning of "unresolved personnel matter" in the background information that was provided with your opinion request. I have no other information regarding the status of the board's recommendation that the superintendent be terminated. But if there has been no final administrative resolution of the board's recommendation, as would be the case, for instance, if the superintendent is still entitled to a hearing on the matter, then the answer to your question is "no," the letter is not subject to disclosure to the public in that case.
Sincerely,
LESLIE RUTLEDGE
Attorney General