Can a former Arkansas Department of Education employee block release of his termination letter?

Plain-English summary

A requester sought Arkansas Department of Education termination letters dated on or after May 15, 2022. The custodian planned to release a letter concerning Robert Swafford, who objected and asked the Attorney General to review the decision. The AG concluded that the custodian had correctly decided to disclose the letter on the facts available to him.

The AG said a termination letter giving the grounds for termination is an employee evaluation record. He stated that such a letter must be disclosed if the termination is administratively final and the public has a compelling interest in disclosure. He found that this letter's content supported both its classification and a compelling public interest, while its dates indicated finality. The opinion does not reproduce the letter or disclose its grounds.

Footnote 1 cites five earlier Attorney General opinions for the termination-letter rule: 2022-014, 2013-155, 2006-026, 2005-030, and 2001-276.

What this means for you

Employees and records custodians

An employee's objection was part of the request the AG reviewed, but the AG approved the custodian's disclosure decision after applying the criteria stated in the opinion. The result turns on this letter's content and dates; the opinion does not decide the treatment of every termination letter.

Common questions

Did the AG say this letter should be released?
Yes. He concluded that the custodian had correctly decided to disclose it based on the facts available to him.

Why did he treat it as an evaluation record?
The AG said the letter included grounds for termination. He found its content supported the custodian's classification.

What did the AG say about finality and public interest?
He found the letter's dates indicated administrative finality and its content showed a compelling public interest in disclosure.

Does the opinion identify the reasons for termination?
No. It does not reproduce the letter or describe its specific allegations.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) authorized this request for AG review of the custodian's decision. In the response, the AG applied the termination-letter disclosure rule and cited five prior opinions in footnote 1.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i)
• Arkansas Attorney General Opinions 2022-014, 2013-155, 2006-026, 2005-030, and 2001-276

Source

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

Original opinion text

Opinion No. 2023-041

May 25, 2023

Robert Swafford
c/o Lori Freno, General Counsel
Arkansas Department of Education
4 Capitol Mall
Little Rock, Arkansas 72701

Dear Mr. Swafford:
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 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.

The correspondence accompanying your request states that someone made a FOIA request for “all letters terminating employment of employees of the [Arkansas Department of Education] on or after May 15, 2022.” The custodian believes that a letter memorializing your termination is responsive to that request. The custodian has determined that the letter is your employee evaluation and that the FOIA requires its disclosure. You have objected to the release of that record and asked for my opinion on whether the letter’s disclosure is consistent with the FOIA. RESPONSE This office has consistently concluded that when a letter of termination includes the grounds for the termination, the letter is classified as an employee evaluation and must be disclosed if (1) that termination is administratively final and (2) the public has a compelling interest in the letter’s disclosure. 1 Given the content of the letter at issue here, the custodian correctly classified the letter as your employee evaluation. That content also indicates that, in my opinion, the public has a compelling interest in the letter’s disclosure. The letter’s dates also indicate that termination has become administratively final. Therefore, based on the facts available to me, it is my opinion that the custodian has correctly decided to disclose the letter.

1
See, e.g., Ark Att’y Gen. Ops. 2022-014, 2013-155, 2006-026, 2005-030, 2001-276.
Robert Swafford
c/o Lori Freno, General Counsel
Arkansas Department of Education
Opinion No. 2023-041
Page 2

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

Sincerely,

TIM GRIFFIN
Attorney General