When two officers were terminated for misconduct, can the police department release their full IA files to a public records requester?
Plain-English summary
This is the companion opinion to Opinion No. 2023-012. The Conway Police Department had two more internal-affairs files responsive to the same FOIA request: investigation files for two officers who were terminated as a result of those investigations. The custodian, Sgt. Jeremy Holliman, decided to release the files in their entirety. The AG agreed.
The framework comes from Op. 2023-012 (released the same day):
- Internal-affairs files of officers who are subjects of misconduct investigations are employee-evaluation records.
- Employee-evaluation records cannot be released unless all four elements of A.C.A. § 25-19-105(c)(1) are met: discipline level (suspension or termination), finality, basis-of-discipline, and compelling public interest.
Applying the test to these two files:
1. Discipline level: Both officers were terminated. Met.
2. Finality: The terminations were final administrative resolutions. Met.
3. Basis: The records "clearly formed the basis" for the terminations, on the facts as the custodian described them. Met.
4. Compelling public interest: Met. AG opinions consistently treat law enforcement officers as holding "a significant public trust," so there is "usually a compelling public interest in records...that reflect violations of office policy" (citing Ops. Att'y Gen. 2014-129, 2009-146, 2006-158).
The AG flagged a procedural caution from Op. 2023-012, footnote 22: these IA files often contain "mixed records" that include other officers' personnel records or other officers' evaluations as witnesses or peripheral subjects. The custodian may need to redact the names of officers whose information is essentially their personnel record (subject to Young v. Rice balancing) rather than employee-evaluation records of the two terminated officers. Because the custodian did not ask the AG to review that aspect, the AG did not opine on it. But the warning is on the record.
The opinion is short because the framework was already laid out in 2023-012. It functions as the answer to the simpler companion question: yes, when the four-part test is cleanly met, full release is consistent with the FOIA, with attention paid to mixed-record redactions.
What this means for you
FOIA custodians at police agencies handling termination IA files
Use the four-part test as a checklist before releasing IA files of terminated officers:
1. Were the officers actually terminated (not just suspended pending hearing, not just voluntary resignation)?
2. Has the termination been finally administratively resolved (no pending appeal, no conditional reinstatement)?
3. Did these specific records form the basis for the termination (not just adjacent material in the file)?
4. Is there a compelling public interest in the violation? For LEO misconduct, the answer is usually yes under prior AG opinions, especially for sustained findings.
If all four are clean, full release is consistent with the FOIA. Apply mixed-record redactions for other officers' personnel information.
Public records requesters and journalists
When you receive an IA file release of a terminated officer, look for two things:
- Internal documentation that the four-part test was applied. The custodian should have a written analysis or template-style memo. Request it under FOIA itself if not provided.
- Mixed-record redactions. Other officers in the file may have witness statements, complainants, or peripheral roles. Their names may be redacted under Young v. Rice. That's permissible; the question is whether the redaction was done correctly (privacy interest more than minimal, public interest insufficient).
Police chiefs and command staff
Two operational implications:
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The "compelling public interest" prong for LEO misconduct is settled doctrine. Internally, treat sustained misconduct findings as likely public-disclosure events. Communicate that to officers being interviewed in IA proceedings.
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The mixed-record issue means the IA file architecture matters. Files structured so that each officer's contribution is clearly attributed are easier to redact correctly. Files where multiple officers' statements are interlaced require segment-by-segment analysis.
County prosecutors and city attorneys advising police on FOIA releases
Use this opinion in tandem with 2023-012 as a paired framework:
- 2023-012 covers the harder cases (third-party records, ambiguous redactions).
- 2023-013 covers the cleaner case (terminated officer's misconduct file).
Both rely on the same four-part test plus Young v. Rice for personnel records. Build a written FOIA-IA protocol around them.
Officers facing IA investigations
Understand that if you are terminated and the termination becomes final, the IA file is likely to be released. The "compelling public interest" prong is met essentially by the nature of LEO work. Coordinate with your union representative and counsel about what gets into the file.
Civilian oversight boards and audit functions
Releases under this framework give civilian boards meaningful access to misconduct files for terminated officers. The framework does not extend automatically to non-terminated officers. The four-part test can be a barrier where officers are disciplined short of termination.
Common questions
Why does the public interest in LEO records get treated as compelling so easily?
The AG's prior opinions, drawing on the Watkins treatise, treat LEO misconduct as falling into the "violations of public trust" category. The public-trust factor is one of three "compelling public interest" factors (the others are public controversy and the employee's position). LEOs are vested with arrest power, deadly-force authority, and investigative discretion that the public cannot easily monitor without record disclosure. The doctrinal default reflects that.
What if the officer appealed the termination?
The finality prong looks at the administrative resolution. If the termination has been finally resolved (appeals exhausted or not pursued), it is final. If an appeal is pending, finality is not yet present.
What about resignation in lieu of termination?
Generally not enough to satisfy the discipline-level prong, which speaks to suspension or termination. A resignation that the agency accepts in lieu of termination may not trigger the four-part test, leaving the records subject to the personnel-record balancing test instead.
Can other officers' names be redacted?
Yes, under the mixed-record framework. Witnesses or peripheral subjects whose information amounts to their own personnel record receive Young v. Rice balancing. The two terminated officers themselves do not get this treatment for their own evaluation records.
Do these opinions bind a court?
No. AG opinions are persuasive only. A court can disagree. The Arkansas Supreme Court has, however, adopted the AG's three-prong definition of employee-evaluation records (Thomas v. Hall), so the structure is well-anchored.
Is the opinion useful as a template for other agencies?
Yes. The four-part test is uniform across employee-evaluation records under Arkansas FOIA. Conway PD's analysis here is the standard template for any agency considering release of a terminated employee's evaluation records.
Background and statutory framework
A.C.A. § 25-19-105(c)(1) closes employee-evaluation records to public inspection unless the four-part test is met:
1. Suspension or termination.
2. Final administrative resolution.
3. Records formed the basis of the discipline.
4. Compelling public interest in disclosure.
A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the custodian, requester, or subject of certain employee-related records to seek an AG opinion on whether the custodian's decision is consistent with the FOIA.
For LEO misconduct, prior AG opinions establish the public trust factor as creating a compelling interest:
- Op. Att'y Gen. 2014-129
- Op. Att'y Gen. 2009-146
- Op. Att'y Gen. 2006-158
Compendium opinion: this opinion was issued the same day as Op. 2023-012, which contains the full doctrinal analysis. Op. 2023-013 incorporates that analysis and applies it to the simpler companion fact pattern.
Citations
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records, four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request procedure)
- Ark. Att'y Gen. Op. 2023-012 (companion opinion, full framework)
- Ark. Att'y Gen. Ops. 2014-129, 2009-146, 2006-158 (LEO misconduct as compelling public interest)
- Ark. Att'y Gen. Op. 2008-065 (four-part test)
Source
Original opinion text
Opinion No. 2023-013
February 16, 2023
Sergeant Jeremy Holliman
Office of Professional Responsibility
Conway Police Department
1105 Prairie Street
Conway, Arkansas 72032
Dear Sgt. Holliman:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). The FOIA 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.
You say that your office received an FOIA request seeking certain disciplinary records and that two files representing two internal-affairs investigations about two different officers are responsive to the request. It appears that you have decided all the records in the investigative file are employee-evaluation records and that you will disclose all the records. You report that the two officers were terminated as a result of the investigations, and the records clearly formed the basis for that termination. You ask whether your decisions regarding these two sets of records are consistent with the FOIA.
RESPONSE
In my opinion, your decision to disclose both sets of records is consistent with the FOIA.
DISCUSSION
Since I am releasing Opinion No. 2023-012 to you today regarding the same underlying FOIA request, I will refrain from repeating the general law contained in that opinion. Under the law explained in that opinion, the documents you intend to release are properly classified as employee-evaluation records because they were created by or at the behest of the employer to evaluate the two former officers. Therefore, the FOIA allows the records to be disclosed only if the following four-part test is 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).
The first three elements are met in this case because, as noted above, each former officer was terminated based on the information contained in these records, and that termination is final. In my opinion, the fourth element is also met because, as this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect violations of office policy.
Therefore, in my opinion, your decision to disclose these records is consistent with the FOIA. But please note that, as I indicated in Opinion No. 2023-012, note 22, these files contain several documents that are arguably also the personnel records of other officers. You may need to redact certain officers' names under the personnel records balancing test. But since you have not asked me to review that part of your decision, I will not address it here.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General