Can a former Arkansas Department of Education employee block release of his termination letter?
Plain-English summary
Someone filed a FOIA request with the Arkansas Department of Education (ADE) for "all letters terminating employment of employees of the [ADE] on or after May 15, 2022." The custodian determined that a termination letter for former employee Robert Swafford was responsive and would be released. Swafford objected and asked the AG, as the subject of the records, whether the disclosure decision was consistent with FOIA.
The AG said yes. The opinion is short and applies the well-established framework for termination letters under Arkansas FOIA.
The two-step rule for termination letters. When a termination letter includes the grounds for the termination, it qualifies as an "employee evaluation record." Evaluation records can only be released when:
1. The termination is administratively final (the appeal period has passed).
2. The public has a compelling interest in disclosure.
(Note: the AG cited "two" requirements here rather than the full four-prong test. That is because the letter's content already establishes the employee was terminated and the letter formed a basis for the action; the live questions are finality and compelling-interest.)
The AG's conclusions for this case:
- The letter's content showed it includes the reasons for termination, so it is correctly classified as an evaluation record.
- The letter's dates indicate finality has been reached.
- The content of the letter establishes a compelling public interest in disclosure.
So the disclosure decision is consistent with FOIA.
The objective-test rule. The subject's objection does not control. The AG has consistently held that the subject's view of whether disclosure invades privacy is irrelevant; the test is objective.
The deeper takeaway: in Arkansas, termination letters that explain the reasons are presumptively releasable to FOIA requesters once the discipline is final and the compelling-interest factor is met. The subject employee's objection has no legal effect on that analysis.
What this means for you
Public employees facing termination
If you are terminated and your termination letter explains the reasons, the letter is potentially subject to FOIA disclosure. Your objection will not block release if the legal tests are met.
Practical implications:
- Request a copy of your own termination letter immediately. As the subject of the records, you have full access under A.C.A. § 25-19-105(c)(2).
- Document the timeline of any administrative appeal. The "finality" prong matters.
- If you believe the public-interest analysis is wrong (e.g., your termination did not involve public-trust violation, gross incompetence, or public controversy), that is the doctrinal hook for objection. But document specifically why; mere disagreement is not enough.
If your discipline is reversed on appeal, the records analysis changes. A reversed termination is not a "final" termination meeting the four-prong test.
HR managers and records custodians
When ADE-style termination letter requests come in:
- Confirm the letter contains the reasons for termination (so it is an evaluation record).
- Confirm the appeal period has passed.
- Document the basis for compelling-public-interest finding.
- Apply contact-information redactions per A.C.A. § 25-19-105(b)(13).
- Release.
If the subject objects, you can request an AG opinion under § 25-19-105(c)(3)(B)(i). The opinion provides legal cover and the typical disposition is to confirm the disclosure decision.
News reporters and FOIA requesters
The framework supports robust access to public-employee termination records:
- Frame requests by date range and entity (e.g., "all termination letters since X date for employees of Y agency").
- Be specific enough that the custodian can identify responsive records.
- Be prepared for routine redactions of personal contact information.
If the agency cites privacy or subject objection, point to the objective-test rule: the subject's view does not control. The custodian's role is to apply the legal tests.
Government attorneys advising agencies on FOIA
Op. 2023-041 is one of a long line of opinions confirming that detailed termination letters are evaluation records subject to release when the four-prong test is met. The AG cites the chain: Ops. 2022-014, 2013-155, 2006-026, 2005-030, 2001-276.
When the question comes up, the answer is usually that the letter is releasable. The areas of legitimate analysis are usually around finality (was there a successful appeal?) and compelling-public-interest (what factors establish it for this specific employee?).
Common questions
Why does the agency have to release my termination letter when I object?
Arkansas FOIA's privacy and disclosure analysis is objective, not subjective. Your objection does not control. The custodian must apply the four-prong test to the records and decide based on the legal standard.
What if my termination letter doesn't really explain the reasons?
A bare status-change letter (without elaboration) is a personnel record, not an evaluation record. The personnel-records balancing test is more protective. Talk to the custodian about which classification applies.
What if I appealed and the appeal is still pending?
The "final administrative resolution" prong of the test is not met during a pending appeal. The records may not yet be releasable on the evaluation-records pathway during active appeals.
What if I was terminated and then rehired?
The records of the original termination are still potentially subject to release. Subsequent rehiring does not erase the prior discipline record.
What about my personal contact information?
A.C.A. § 25-19-105(b)(13) requires redaction of home/mobile phone, personal email, and home address for nonelected public employees. Those redactions are required regardless of the broader release decision.
Can I sue the agency for releasing my records?
A successful FOIA disclosure is generally not an actionable basis for a tort claim. If you believe the agency mishandled the records (released information beyond what was responsive, failed to apply required redactions), that is a different question. Talk to a lawyer about specific facts.
What if my termination involved unsubstantiated allegations?
The "compelling public interest" analysis considers the nature of the alleged infraction, not whether the allegations were ultimately substantiated. Termination based on alleged misconduct is enough to trigger the analysis. If the discipline was reversed on appeal, that changes the analysis (no final termination).
Background and statutory framework
Arkansas FOIA at A.C.A. § 25-19-105 distinguishes:
- Personnel records (subsection (b)(12)): records that pertain to an employee but do not formally evaluate them. Releasable unless disclosure would be a clearly unwarranted invasion of privacy.
- Evaluation records (subsection (c)(1)): records created to evaluate an employee that detail their performance. Releasable only if four-prong test is met.
A termination letter that explains the reasons for termination is an evaluation record (Ops. 2022-014, 2013-155, 2006-026, 2005-030, 2001-276 establish this). A bare status-change letter is a personnel record.
The four-prong test for evaluation records:
1. Suspension or termination
2. Final administrative resolution
3. Records formed a basis for the decision
4. Compelling public interest
The compelling-public-interest analysis considers (a) nature of the infraction (public-trust violation, gross incompetence, criminal conduct), (b) public controversy connected to the agency, and (c) employee's rank.
The subject's objection is not a basis to withhold (the test is objective). The custodian decides.
Citations
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion process for subject of records)
- Ark. Att'y Gen. Op. 2022-014 (termination letter as evaluation record)
- Ark. Att'y Gen. Op. 2013-155 (termination letter as evaluation record)
- Ark. Att'y Gen. Op. 2006-026 (termination letter as evaluation record)
- Ark. Att'y Gen. Op. 2005-030 (termination letter as evaluation record)
- Ark. Att'y Gen. Op. 2001-276 (termination letter as evaluation record)
Source
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. 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.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General