Can the Arkansas State Police release a former trooper's termination letter under FOIA when the misconduct involves departmental rules?
Plain-English summary
Deena McFarland was the subject of a termination letter that the Arkansas State Police (ASP) intended to release under FOIA. The request was 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." McFarland filed an objection under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets a records subject ask the AG whether the custodian's decision is consistent with FOIA.
The AG sided with the custodian. Termination letters that contain the reasons for termination are employee-evaluation records under Arkansas FOIA. Such records are released only when four elements are met:
- The employee was suspended or terminated.
- The proceeding has reached a final administrative resolution.
- The records formed a basis for the suspension or termination.
- There is a compelling public interest in disclosure.
The first three elements were met based on the limited record before the AG. The fourth, the compelling public interest, was the contested element. The AG held that the public has a heightened interest in records reflecting law-enforcement officer misconduct that violates departmental rules aimed at conduct that could undermine the public trust or compromise public safety. The policy violations described in the termination letter rose to that level. Disclosure was consistent with FOIA.
The AG also confirmed that the custodian's redaction of personal contact information was appropriate under Ark. Code Ann. § 25-19-105(b)(13).
What this means for you
Sworn officers facing discipline
Termination letters that lay out the reasons for discharge are employee-evaluation records under Arkansas FOIA. They become potentially releasable once your administrative process ends and your former agency assesses the basis-for-termination and compelling-public-interest factors. Misconduct that touches public trust or public safety, such as departmental-rule violations specifically aimed at preventing those harms, weighs heavily toward release. If you want to contest disclosure, your privacy claim has to do real work; subjective embarrassment is not enough.
Police records custodians
When you receive a FOIA request for termination or suspension letters, walk through the four-part test. Confirm finality (administrative process complete; this is rarely just a single internal decision). Confirm the letter formed a basis for the discipline. Then assess the compelling public interest. For sworn officers and high-rank officials, the bar is lower because departmental-rule violations carry a heightened public interest. Document your analysis in writing. Redact personal contact information per § 25-19-105(b)(13) and any other items required by AG guidance (date of birth, SSN, banking info, undercover identifiers). If the subject objects, route the question through § 25-19-105(c)(3)(B)(i).
FOIA requesters and journalists
A blanket request for all suspension/termination letters from a state law-enforcement agency over a multi-year period is workable under Arkansas FOIA, but expect the agency to do per-letter analysis. If the agency denies disclosure on compelling-public-interest grounds, push them to articulate the specific factors weighing against release. The AG's analysis here treats sworn-officer misconduct as a context where compelling public interest is generally present. Op. Att'y Gen. 2022-016, 2014-088, and 2008-090 are useful citations for that proposition.
Terminated public employees outside law enforcement
Your termination letter is also an employee-evaluation record subject to the same four-part test. Outside the law-enforcement context, the compelling-public-interest factor is harder for requesters to satisfy. The Watkins/Peltz-Steele/Steinbuch treatise notes the test favors disclosure for higher-ranked employees and for misconduct linked to specific public controversies, and disfavors disclosure for routine performance issues with rank-and-file workers. Consult counsel about the specific facts.
Common questions
Q: What's the difference between a "personnel record" and an "employee-evaluation record"?
A: Personnel records (like names, salaries, applications) are subject to a privacy-balancing test under Ark. Code Ann. § 25-19-105(b)(12). Employee-evaluation records (records created by or at the employer's behest to evaluate the employee, detailing performance) are governed by § 25-19-105(c)(1) and require the four-part test described above.
Q: How is "compelling public interest" measured?
A: The FOIA does not define it. The Watkins/Peltz-Steele/Steinbuch FOIA treatise, cited by the AG, lists three factors: (1) the nature of the infraction (especially violations of public trust or gross incompetence); (2) the existence of a public controversy related to the agency and its employees; (3) the employee's position within the agency. A general public interest in employee performance is never compelling, because it always exists. A connection between a controversy, an agency, and a serious breach of public trust meets the test.
Q: Why are sworn officers held to a different standard?
A: Departmental rules for sworn officers are aimed at preserving public trust and safety. Violations of those rules, by definition, implicate the public interests the rules are designed to protect. The AG has consistently held that misconduct in this category carries a heightened public interest in disclosure (Ops. Att'y Gen. 2022-016, 2014-088, 2008-090).
Q: What does "final administrative resolution" mean?
A: It refers to the final decision-making step taken by the employing entity, after which there is no further administrative recourse within the agency. Continued judicial review by the employee does not affect finality.
Q: What gets redacted from a releasable termination letter?
A: At minimum, personal contact information under § 25-19-105(b)(13). The AG has identified additional items in other opinions: date of birth, SSN, employee personnel number, banking information, medical information, and undercover-officer identifiers. The list in Op. Att'y Gen. 2022-022 is a useful reference.
Q: Does this opinion mean every police termination letter is releasable?
A: No. Each letter requires its own four-part analysis. The AG's analysis here turned on policy violations of a kind that fit the heightened-interest pattern. A termination for, say, a non-misconduct reason like restructuring or position elimination might not meet the compelling-public-interest test.
Q: Can the subject of the letter prevent disclosure if he or she sues?
A: A subject can pursue review of an AG opinion under Arkansas FOIA's enforcement provisions. The subject's privacy interest must be objectively greater than the public interest in disclosure. Routine personal embarrassment does not meet that bar; the test is objective.
Q: What should I do if I receive an AG opinion that goes against me as the records subject?
A: Consult an Arkansas FOIA attorney quickly. The opinion is persuasive but not binding on courts. Litigation is possible, but timing matters because the agency may proceed with disclosure absent a court order.
Background and statutory framework
The Arkansas FOIA defines public records at Ark. Code Ann. § 25-19-103(7)(A) as writings required by law to be kept or otherwise kept that record the performance or lack of performance of official functions by a public official or employee. Records held by a public entity are presumed public, with the presumption rebuttable (Pulaski Cty. v. Ark. Democrat-Gazette, Inc. (2007)).
Section 25-19-105(c)(1) creates the employee-evaluation exemption. The Arkansas Supreme Court adopted the AG's three-part definition of those records in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance. Termination letters listing the reasons for termination consistently qualify (Ops. Att'y Gen. 2022-014, 2020-001, 2012-077, 2001-276).
The statute requires disclosure of qualifying records only if all four conditions are met: suspension or termination, finality, basis-for-discipline, and compelling public interest. § 25-19-105(c)(1) is the source of those four prongs.
The AG cited Op. Att'y Gen. 2022-016, 2014-088, and 2008-090 for the proposition that departmental-rule violations by sworn law-enforcement officers carry a heightened public interest. The Watkins/Peltz-Steele/Steinbuch treatise echoes that point.
The custodian's redactions of personal contact information, including personal phone numbers, personal email addresses, and home addresses, are required by § 25-19-105(b)(13) and apply uniformly across employee records.
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
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. 2022-025
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.
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. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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. 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 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." 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.
Additionally, some employee-related records constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record.
If a document meets the above definition, the document cannot be released unless all the following elements have been met:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
- The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).
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.
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, 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.
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. 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. 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, I believe the policy violations detailed in the record at issue probably reflect a degree of 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.
Sincerely,
LESLIE RUTLEDGE
Attorney General