Can Arkansas State Police release a former employee’s termination letter in response to a FOIA request?

Plain-English summary

Deena McFarland objected when the Arkansas State Police (ASP) custodian proposed releasing a redacted termination letter about her. A requester had sought ASP suspension and termination letters from January 1, 2019, through May 2, 2022. McFarland asked the Attorney General to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). The AG reviewed the letter, but the opinion does not reproduce its allegations or describe the specific policy violations.

The AG classified the letter as an employee-evaluation record because it gave reasons for termination. Such a record can be released only if the employee was suspended or terminated, the proceeding reached final administrative resolution, the record formed a basis for the decision, and there is a compelling public interest in disclosure. The first three conditions appeared met. On the fourth, the AG said a heightened interest likely exists for law-enforcement misconduct involving rules aimed at public trust or safety. Whether that interest is compelling for a particular record remains a question of fact.

The AG believed this letter's policy violations probably generated a compelling public interest. She concluded that the custodian's planned release was likely consistent with FOIA. The custodian's redaction of what appeared to be exempt personal contact information was likewise consistent with FOIA.

What this means for you

If you are the employee named in the letter

A termination letter that states why you were dismissed can be an employee-evaluation record. Its release depends on all four statutory conditions, including the facts supporting a compelling public interest. The AG's qualified conclusion about McFarland's letter does not decide the status of another employee's letter.

If you handle ASP records requests

Check whether each requested letter states reasons for discipline, then assess the four employee-evaluation conditions for that letter. For the public-interest condition, consider what the letter actually says about conduct that could undermine trust or safety. The AG described a heightened interest as likely in that setting and called the ultimate finding a question of fact. In this case, she also approved redacting what appeared to be exempt personal contact information.

If you requested police discipline records

This opinion supports a request for a termination letter when the four conditions are met. It reviewed one letter from a broader request; it did not determine whether every letter in that request was releasable. Ask for the reason the custodian applies to each withheld letter.

Common questions

Q: Did the AG say this termination letter definitely had to be released? A: No. She said the proposed release was likely consistent with FOIA. She had reviewed the letter and said its policy violations probably generated a compelling public interest.

Q: Is every termination letter an employee-evaluation record? A: The AG said letters of termination qualify if they contain the reasons for termination. She found that this letter did and applied the four-part evaluation-record test.

Q: Does misconduct by a law-enforcement officer automatically satisfy the public-interest test? A: No. The AG said heightened interest likely exists for violations of departmental rules aimed at conduct that could undermine public trust or safety. She said compelling interest in a particular record is always a question of fact.

Q: What policy violations did this employee commit?
A: The published opinion does not describe them. It says the AG reviewed the letter and believed its policy violations probably generated a compelling public interest.

Q: Did the AG apply a personal-privacy balancing test to this letter? A: No. She classified the letter as an employee-evaluation record and applied the four-part test. The opinion explains that personnel records are a separate category with a different disclosure test.

Q: Which redaction did the AG approve?
A: She said the custodian's redaction of what appeared to be exempt personal contact information was consistent with FOIA, citing Ark. Code Ann. § 25-19-105(b)(13).

Background and statutory framework

The opinion explains that a letter stating reasons for termination is an employee-evaluation record. Ark. Code Ann. § 25-19-105(c)(1) permits disclosure only after suspension or termination, final administrative resolution, a record that formed a basis for the decision, and a compelling public interest. The AG said the first three appeared met here.

For the fourth condition, the opinion quotes commentators who consider the nature of the infraction, a public controversy related to the agency, and the employee's position. The AG then cites prior opinions for the narrower point that heightened interest likely exists in information about law-enforcement misconduct violating rules aimed at public trust or safety. She did not set a lower legal threshold for officers or high-ranking employees.

The AG described the proposed release as likely consistent with FOIA and separately approved the custodian's apparent personal-contact redaction under § 25-19-105(b)(13).

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption and four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to seek AG opinion)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Watkins, Peltz-Steele & Steinbuch, The Arkansas Freedom of Information Act 223, 237-39 (Arkansas Law Press, 6th ed. 2017)
• Ops. Att'y Gen. 2022-016, 2022-014, 2020-037, 2020-001, 2014-088, 2012-077, 2008-090, 2008-065, 2008-004, 2007-225, 2006-038, 2006-026, 2005-030, 2003-073, 2001-276, 98-006, 97-368, 97-222, 96-168, 95-351, 94-306, 93-055

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-025

June 7, 2022

Deena McFarland

c/o Katlyn Nelson, Legal Support Specialist
Arkansas State Police

1 State Police Plaza Dr.

Little Rock, AR 72209

Dear Ms. McFarland:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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, as well as correspondence from the Arkansas State Police (“ASP”), indicates that ASP has received a request under the FOIA for “[a]ll letters of suspension and termination on file with the Arkansas State Police for a period of January 1, 2019 through May 2nd, 2022.” The custodian has attached one document pertaining to you that she believes is responsive to the request and that she intends to release with redactions. You object to the record’s release and

ask whether the custodian’s decision to release the record as redacted is consistent with the FOIA.

RESPONSE

Having reviewed the record that the custodian intends to release, it is my opinion that the custodian’s decision is likely consistent with the FOIA.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 * FAX (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/ Deena McFarland Opinion No. 2022-025 Page 2

DISCUSSION
I. General standards 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.

The first two elements appear to be met. The request was made to ASP, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records.1 Because the records are held by a public entity, they are presumed to be public records,2 although that presumption is rebuttable.3 Accordingly, given that I have no information to suggest that the presumption can be rebutted, the analysis proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees’ personnel files.4 For purposes of the FOIA, these items can usually

1 The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions ... carried out by a public official or employee ....” Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2021).

2 Id.

3 See Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) (“the presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.”” citing Op. Att’y Gen. 2005-095).

4 This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records, requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g., Op. Att’y Gen. 97-368; John J. Watkins, Richard J. Peltz- Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas Law Press, 6th ed., 2017). Deena McFarland Opinion No. 2022-025 Page 3

be divided into two mutually exclusive groups: “personnel records”5 or “employee

evaluation or job performance records.”6 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 record be disclosed. In this instance, it is apparent that the record at issue constitutes an employee-evaluation record. I will, therefore, limit my discussion to records of that type.

The FOIA does not define “employee evaluation or job performance records.”7 But the Arkansas Supreme Court has adopted this office’s view 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.8 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.9

Additionally, some employee-related records constitute “mixed records,” i.e., records that constitute (1) more than one person’s evaluation, (2) at least one

5 Ark. Code Ann. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter...
[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

6 Ark. Code Ann. § 25-19-105(c)(1): “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.”

7 I will refer to this group of records as “employee-evaluation records.”

8 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.

9 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
Deena McFarland
Opinion No. 2022-025
Page 4

person’s evaluation and at least one other person’s personnel record, or (3) more than one person’s personnel record.10

If a document meets the above definition, the document 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).11

As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But the leading commentators on the FOIA, referring to this office’s opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee’s position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement.12

10 See Op. Att’y Gen. 2020-037 (and opinions cited therein). 11 Ark. Code Ann. § 25-19-105(c)(1); Op. Att’y Gen. 2008-065.

12 Watkins, et al., at 238-39 (footnotes omitted).
Deena McFarland
Opinion No. 2022-025
Page 5

These commentators also note that “the status of the employee” or “his rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists,13 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

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.14

III. Application.

While not explicitly stated in your correspondence, it appears that the custodian has determined that the record intended for release—a letter of termination—is your employee-evaluation record. This office has consistently opined that letters of termination constitute employee-evaluation records if they contain the reasons for the termination.15 Because the record at issue here contains the reasons for your termination, it is, in my opinion, properly classified as an employee- evaluation record. Therefore, the test for disclosure of the record must be evaluated under the above four-part test.

In this instance, it appears that the first three elements have been met. As for the fourth—the “compelling public interest” element—this office has consistently opined that, with respect to allegations of misconduct by law enforcement officers, a heightened interest likely exists in information reflecting a violation of departmental rules aimed at conduct that could undermine the public trust, compromise public safety, or both.16 Thus, while the existence of a compelling public interest in the release of a particular record is always a question of fact that must be determined in light of all the surrounding circumstances.17 I believe the policy violations detailed in the record at issue probably reflect a degree of

13 Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”).

14 Cf. Op. Att’y Gen. 96-168; Watkins, et al., at 223.

15 E.g., Ops. Att’y Gen. 2022-014, 2020-001, 2012-077, 2001-276.

16 Ops. Att’y Gen. 2022-016, 2014-088, 2008-090.

17 See Op. Att’y Gen. 2006-026 (and opinions cited therein). Deena McFarland Opinion No. 2022-025 Page 6

misconduct sufficient to generate a compelling public interest in disclosure. Accordingly, the custodian’s decision to release the record is likely consistent with the FOIA. Furthermore, the custodian’s redaction of what appears to be exempt personal contact information is likewise consistent with the FOIA.18

Sincerely,

LESLIE RUTLEDGE
Attorney General

18 See Ark. Code Ann. § 25-19-105(b)(13).