Can the Arkansas Public Defender Commission release suspension and termination letters about a former employee facing criminal charges?

Plain-English summary

A press member sent the Arkansas Public Defender Commission (APDC) a FOIA request for "all correspondence regarding a former employee." Charlotte Bogan, on behalf of APDC, gathered the responsive records: a letter of suspension, a letter of termination, and emails. She classified the suspension and termination letters as evaluation records and the emails as personnel records. She decided to release them all with redactions for personal contact information. The former employee objected, so Bogan asked the AG to confirm the decision.

The AG confirmed: the disclosure decision is consistent with FOIA. The reasoning matters because it shows how the analytical framework applies in a high-profile-misconduct case.

Letters of suspension and termination as evaluation records. When a letter of suspension or termination explains the reasons for the discipline, the AG has consistently held it qualifies as an evaluation record. (When a letter merely reflects the change in employment status without elaboration, it is a personnel record.) Here, the suspension letter recounted "in detail" the reason for the suspension, and the termination letter "touched on" the reasons. Both are evaluation records.

Applying the four-prong test. Evaluation records can be released only if all of these are met:
1. Suspended or terminated: Yes (the employee was terminated).
2. Final administrative resolution: Yes (the time to appeal had passed).
3. Letters formed a basis for the disciplinary decision: Yes, even though the letters did not themselves form the basis of APDC's discipline (they came after), the letters contained the reasons for the action. The AG cited a line of opinions holding that letters which contain reasons qualify under this prong.
4. Compelling public interest: Yes. The former employee is facing criminal charges for theft of public funds. The AG has consistently treated criminal misconduct involving public funds as a clear compelling-interest factor. The combination of a public-employee position, alleged theft of public funds, and ongoing criminal proceedings gives the public a strong stake in disclosure.

The emails as personnel records. The emails were not created to evaluate the employee, so they are personnel records, not evaluation records. The AG applied the Young v. Rice balancing test: nothing in the email content rises to a "clearly unwarranted invasion of personal privacy." So they are releasable under the personnel-records test.

Personal contact information redactions. Even when records are releasable, certain pieces must still be redacted. A.C.A. § 25-19-105(b)(13) exempts the personal contact information of certain nonelected government employees: home or mobile telephone numbers, personal email addresses, and home addresses. APDC redacted these from the records. The AG agreed those redactions are required.

The deeper takeaway: when a public employee is terminated and is also facing criminal charges related to public-funds misconduct, the public-interest analysis tips strongly toward disclosure. The reasons for the discipline are written down in the suspension and termination letters, those letters are evaluation records, and the four-prong test is met.

What this means for you

Records custodians at Arkansas public agencies

Have a written record of the analysis when you decide to release suspension/termination records:
- Are the letters detailed enough to qualify as evaluation records?
- Is the discipline final (appeal period has passed)?
- Do the letters reflect the reasons for the discipline?
- What facts establish a compelling public interest?

If a former employee objects, the framework for AG review is set out in this opinion. You can ask the AG for an opinion under § 25-19-105(c)(3)(B)(i) to confirm before releasing.

When the disciplined employee is also under criminal investigation or facing criminal charges, document how that connection establishes the compelling public interest. The AG has treated criminal proceedings involving public funds, public trust, or workplace misconduct as strong compelling-interest factors.

Public employees who have been terminated and may be subject to FOIA disclosure

If your suspension or termination letter described the reasons in detail, the letter likely qualifies as an evaluation record. After the appeal period passes, the records become potentially releasable.

If a press request comes in, the agency will likely apply the four-prong test and may request an AG opinion. Your objection is heard but is not determinative; the privacy analysis is objective, not subjective.

If you want to push back, focus on whether the compelling-public-interest prong is actually established. A general interest in public-employee performance is not compelling. A specific link to a public controversy, breach of public trust, or rank-based public concern is.

News reporters covering public-employee misconduct

When you request records about a terminated public employee:
- Frame the request to capture suspension letter, termination letter, and related correspondence.
- Be prepared for redactions of personal contact information (this is required under § 25-19-105(b)(13)).
- If the agency cites privacy concerns, point to the compelling-interest factors in the case (criminal charges, breach of public trust, public-funds misconduct).
- If the agency requests an AG opinion before releasing, that adds time but typically results in disclosure when the four-prong test is clearly met.

Government attorneys advising agencies on FOIA responses

The opinion is a clean illustration of the four-prong test in a misconduct-with-criminal-charges fact pattern. When the disciplined former employee is facing criminal charges, the compelling-interest prong is typically straightforward to establish.

For the level-of-discipline prong, note the AG's treatment of letters that "contain the reasons" even when they did not formally cause the discipline. The reasoning rule is important: letters with detailed reasoning qualify; bare status-change letters do not.

For redactions, A.C.A. § 25-19-105(b)(13) is a discrete check that survives even when the broader record is releasable. Keep a checklist of contact-information categories to redact.

Whistleblowers and citizens watching public-employee misconduct

If you become aware that a public employee has been terminated for misconduct involving public funds or public trust, FOIA gives meaningful access to the records. The framework established in this opinion supports disclosure when criminal charges or other serious public-interest factors are present.

Foundation for HR policy in Arkansas public agencies

Drafting suspension and termination letters has FOIA consequences. Detailed letters become evaluation records subject to potential disclosure. Bare status-change letters can avoid that classification but may also be inadequate for HR documentation purposes. Best practice: write letters that adequately document the reasoning (HR best practice), and accept that those letters may be releasable under FOIA when the four-prong test is met. Do not strip the reasoning to evade FOIA.

Common questions

Why can the agency release a former employee's records when the employee objects?
The privacy test is objective, not subjective. The fact that the subject objects does not control. The Arkansas Supreme Court in Stilley v. McBride placed the burden on the person resisting disclosure to show their privacy outweighs the public interest.

Can the press get my disciplinary records if I was suspended but not fired?
The four-prong test requires "suspension or termination." Suspension qualifies. So the same framework applies, although the public-interest analysis may be different for suspensions than terminations.

What if I appealed the termination and the appeal is still pending?
The "final administrative resolution" prong is not met until the appeal is resolved (or the appeal period passes). During an active appeal, the records may not yet be releasable under the evaluation-records test.

What does "compelling public interest" actually mean in practice?
The leading factors are (1) the nature of the infraction (public trust, gross incompetence, criminal conduct), (2) public controversy connected to the agency, and (3) the employee's rank. A general interest in public-employee performance is not compelling. A link to a specific public controversy is.

Can my personal email address be released?
No. A.C.A. § 25-19-105(b)(13) requires redaction of personal email addresses, personal phone numbers, and home addresses for nonelected public employees, regardless of whether the broader record is releasable.

Why are the emails treated as personnel records and not evaluation records?
The evaluation-records test requires the records to have been created to evaluate the employee. Emails about logistics, status updates, or general communication during the suspension/termination process were not created to evaluate the employee, so they are personnel records and analyzed under the Young balancing test instead.

What happens if criminal charges are dropped or the employee is acquitted?
The "compelling public interest" analysis is at the time of the FOIA request and decision. If charges are dropped after release has occurred, the disclosure stands. If charges are dropped before the disclosure decision, the custodian re-evaluates the public-interest factor in light of the changed circumstances.

Background and statutory framework

Arkansas FOIA at A.C.A. § 25-19-105 distinguishes:
- Personnel records (subsection (b)(12)): releasable unless disclosure would be a "clearly unwarranted invasion of personal privacy" under Young v. Rice.
- Employee-evaluation records (subsection (c)(1)): releasable only if the four-prong test (suspension/termination, finality, basis, compelling interest) is met.
- Subject-of-records access (subsection (c)(2)): subject is always entitled to their own records.
- Personal contact information redactions (subsection (b)(13)): home addresses, personal email, and personal phone numbers always redacted for nonelected public employees.

The line of AG opinions holding that letters of suspension/termination with reasons qualify as evaluation records is well-developed: Ops. 2020-001, 2019-022, 2012-077, 2001-276, 2001-112. Letters that merely reflect status change without elaboration are personnel records: Ops. 2006-147, 2002-150, 2001-185.

The compelling-public-interest test is taken from John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017), at 237-39. It considers (1) nature of the infraction, (2) existence of a public controversy, and (3) employee's rank. Criminal charges related to public-funds misconduct are an established compelling-interest factor.

The objective-test rule from Stilley v. McBride places the burden on the person resisting disclosure. The subject employee's preference does not control.

Citations

• A.C.A. § 25-19-105(b)(12) (personnel-records exemption)
• A.C.A. § 25-19-105(b)(13) (personal contact information redaction)
• A.C.A. § 25-19-105(c)(1) (evaluation-records exemption and four-prong test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion on disclosure decisions)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel-records balancing)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (objective test, burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (recognizing AG's evaluation-records definition)

Source

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

Original opinion text

Opinion No. 2023-049
June 16, 2023
Charlotte Bogan
Arkansas Public Defender Commission
101 East Capitol, Suite 201
Little Rock, Arkansas 72201

Dear Ms. Bogan:

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). 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.

You say that a member of the press has requested "all correspondence regarding a former employee" of the Arkansas Public Defender Commission ("APDC"). You have gathered the documents you believe are responsive to this request. They include a letter of suspension, a letter of termination, and email correspondence regarding the suspension and termination. It appears you have classified the letters of suspension and termination as the former employee's evaluation records and the remaining documents as his personnel records. After applying the tests for release, you have determined that all the records are releasable with redactions. Because the subject of the records objects to the records' release, you have requested my opinion on whether your decision is consistent with the FOIA.

RESPONSE

In my opinion, your decision to release the records as redacted is consistent with the FOIA.

DISCUSSION

1. General rules. 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.

Based on the facts available to me, it is my opinion that the first two elements are met. Accordingly, I will focus on whether any exceptions prevent the documents' disclosure.

2. Exceptions to disclosure. The FOIA contains two exemptions for two groups of documents 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 first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2.1. Personnel-records. While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records other than "employee evaluation or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

A personnel record is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing test, which takes place with the scale already tipped in favor of disclosure, has two steps. Under the first step, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. If it is only minimal, then the privacy interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the record must be disclosed. But if the privacy interest is more than merely minimal, the custodian moves to the second step when she must determine whether the privacy interest is outweighed by the public's interest in disclosure.

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.

2.2. Employee-evaluation exception. The second relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court 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. And this office has opined that letters of suspension and termination constitute employee-evaluation records if they contain the reasons for the suspension or termination.

If a document qualifies as an employee-evaluation record, 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).

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, for that concern is, at least theoretically, always present. 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 between employees and their employers.

3. Classification and disclosure of the letters of suspension and termination. In my opinion, you have correctly classified the letters of suspension and termination as employee-evaluation records. Although the letters of suspension and termination did not form a basis for the APDC's disciplinary decisions, this office has consistently opined that such letters constitute employee-evaluation records if they contain the reasons for the suspension or termination. Here, the letter of suspension recounts, in detail, the reason for the former employee's suspension. And while the letter of termination is less detailed, it also touches on the reasons for the former employee's termination. As a result, these letters are properly classified as employee-evaluation records, and they should be evaluated under the above four-part test.

In this instance, the first three prongs of the test have clearly been met. The employee was terminated; the time to request a hearing to appeal the termination has passed; and the letters of suspension and termination contain the reasons for the disciplinary action taken. As for the fourth, the "compelling interest" prong, various factors bear on the analysis, including the employee's rank within the hierarchy, the existence of a public controversy, and whether there was an infraction involving gross negligence or a violation of the public trust. In this case, you have determined that there is a compelling public interest in the release of the records because the former employee is currently facing criminal charges for theft of public funds. In my opinion, your determination is consistent with the FOIA, and the redacted letters are subject to release.

4. Classification and disclosure of email correspondence. The emails that make up the remaining records were not created by or at the behest of APDC to evaluate the former employee, nor do they contain the reasons for the former employee's suspension or termination. Consequently, they are properly classified as his personnel records and should be analyzed under the personnel records balancing test.

The emails' contents primarily reflect the fact of the former employee's suspension and termination, as well as some discussion of his job duties during the course of the suspension. I see nothing in these documents that would render their release a clearly unwarranted invasion of personal privacy. Thus, I believe your decision to release these emails with redactions is consistent with the FOIA.

5. Redactions in the records. As explained above, certain categories of information may need to be redacted from records that are otherwise releasable. One such category of information that is exempt from release under the FOIA is the personal contact information of certain nonelected government employees, including their "home or mobile telephone numbers, personal email addresses, and home addresses." It appears that you have redacted the personal email address of the former employee, the personal email address of another APDC employee, and the personal mailing address of the former employee from the records you intend to release. In my opinion, these redactions are consistent with the requirements of the FOIA.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General