Can a sheriff's office release the Internal Review of a deputy who 'voluntarily' resigned just before being fired?
Plain-English summary
Sebastian County, Arkansas received a FOIA request for "all written reprimands, letters of caution, records of employee misconduct, and records of disciplinary action [including] suspension, demotion, and termination" regarding former deputy Thomas Gage's work with the Sebastian County Sheriff's Office. Gage, as the subject of the records, asked the AG to opine on whether the custodian's decision to release the Internal Review document was consistent with FOIA.
The AG said yes. The opinion turns on two doctrinal points: forced resignation as constructive termination, and the compelling public interest in law enforcement misconduct records.
Forced resignation is termination under FOIA. The custodian represented that Gage's resignation was "not voluntary" but came in the face of impending termination. Arkansas FOIA opinions have consistently held that a forced or coerced resignation operates as a "constructive termination" satisfying the level-of-discipline prong of the four-part evaluation-records test (Op. 2014-103). Whether a resignation was actually forced is a fact-intensive determination by the custodian, subject to judicial review.
The four-prong test, applied:
1. Level of discipline: Met. Forced resignation = constructive termination.
2. Finality: Met. The constructive termination was final.
3. Basis: Met. The Internal Review formed the basis for the constructive termination.
4. Compelling public interest: Met. The AG cited a line of opinions establishing that "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."
The law-enforcement-officer rule. Op. 2023-050 makes the law-enforcement-officer principle especially clear: when the records relate to a sworn officer's policy violations, the public-interest prong is presumptively met. The cited prior opinions are 2023-013, 2014-129, 2009-146, and 2006-158. This is one of the strongest doctrinal showings of compelling-public-interest established in Arkansas.
One technical note. The AG noted that the custodian sent the Internal Review document but referenced an attached memo that was not included with the submission. The AG limited the opinion to the document received. So the disposition of the unattached memo is not addressed.
The deeper takeaway: Arkansas treats sworn law-enforcement officer disciplinary records as presumptively releasable when discipline (including constructive termination) results from policy violations. The forced-resignation pathway is well-established. Officers cannot avoid disclosure simply by resigning before formal termination is issued.
What this means for you
Sworn officers, deputies, and police personnel facing investigation
Resignation does not automatically protect your records from FOIA disclosure. A forced or coerced resignation is treated as a constructive termination. Your Internal Affairs file, internal review documents, and disciplinary correspondence become potentially releasable under the four-prong test.
If you believe the resignation pressure was inappropriate, your remedies are typically through grievance procedures, whistleblower protections, or wrongful-discharge actions. Resignation alone does not defeat FOIA disclosure.
If you receive a copy of an Internal Review or similar document during the investigation, keep it. You have subject-access rights under A.C.A. § 25-19-105(c)(2). You may also have separate rights under union contracts, civil service rules, or statutory due process for officers (e.g., Police Officer Bill of Rights provisions in some jurisdictions).
Sheriffs and police chiefs
When you accept a deputy's or officer's resignation in lieu of termination, document the circumstances clearly. Custodian determinations of "forced resignation" must rest on a factual record. The records about the resignation circumstances, the underlying investigation, and the discipline that would have been imposed all become relevant if a FOIA request comes later.
Your office's Internal Affairs and Internal Review documents are subject to FOIA disclosure under the standards in this opinion. Build documentation practices that anticipate this:
- Document the alleged policy violations carefully.
- Document the disciplinary determination process.
- Document the resignation circumstances when applicable.
The compelling-public-interest prong is essentially presumptive for sworn-officer policy violations. Plan for disclosure when investigations result in discipline (formal or constructive).
Records custodians at law enforcement agencies
When a former deputy or officer is the subject of a FOIA request:
- Apply the four-prong test as articulated in this opinion.
- For the level-of-discipline prong, treat forced resignation as termination (with documentation of the forced nature).
- For the compelling-public-interest prong, recognize that law-enforcement-officer policy violations are a strong factor.
- Redact personal contact information per A.C.A. § 25-19-105(b)(13).
When in doubt, request an AG opinion under § 25-19-105(c)(3)(B)(i). The opinion provides legal cover for the custodian.
News reporters covering police misconduct
Op. 2023-050 confirms a robust framework for accessing law enforcement disciplinary records in Arkansas. When you request misconduct files for a former officer or deputy:
- Frame the request to capture Internal Review, Internal Affairs investigation files, disciplinary correspondence, and related documentation.
- If the agency cites that the officer "resigned" rather than was terminated, point to the forced-resignation/constructive-termination doctrine. Ask for the underlying records of the resignation circumstances.
- Cite Op. 2023-050 and the law-enforcement-officer compelling-interest line of opinions (2023-013, 2014-129, 2009-146, 2006-158).
Police accountability advocates
The forced-resignation rule is important for accountability work. Without it, officers facing termination could routinely resign to bury misconduct records. The Arkansas framework treats the constructive-termination pathway as an established route to disclosure.
If you encounter an agency claiming records are sealed because the officer "voluntarily resigned," challenge the characterization. Ask for the records of the disciplinary process, the resignation timing, and the underlying allegations. The factual record on whether the resignation was forced is itself FOIA-discoverable in most cases.
Civil rights and police misconduct attorneys
Op. 2023-050 strengthens the framework for accessing law enforcement disciplinary records that may be relevant to civil rights litigation. The compelling-public-interest prong is particularly favorable in police-misconduct contexts.
For Section 1983 cases involving alleged officer misconduct, FOIA-released disciplinary records can be valuable in establishing patterns or notice. Coordinate FOIA requests with discovery strategy.
Common questions
If a deputy resigns voluntarily before any investigation, are the records still public?
The four-prong test requires "suspension or termination" (or constructive equivalent). A truly voluntary resignation with no impending discipline does not meet the level-of-discipline prong, so the evaluation-records test fails the first hurdle. Routine personnel records may still be releasable under the Young v. Rice balancing test, but the disciplinary file is not subject to disclosure on the evaluation-records pathway.
How does the custodian determine if a resignation was forced?
It is a "highly factual determination," in the AG's words, made by the custodian and subject to judicial review. Factors include: timing of the resignation relative to the investigation, statements by the officer or supervisors, whether the resignation followed notice of intent to terminate, and contemporaneous records.
Can the officer challenge the disclosure decision?
Yes. The officer (as subject of the records) can ask the AG for an opinion under § 25-19-109(c)(3)(B)(i), and may also seek judicial review. The objection is typically focused on whether the four-prong test is met or whether the records have been properly classified.
What if the officer is also facing criminal charges?
Pending criminal charges add to the compelling-public-interest analysis. The combination of policy violation, criminal proceedings, and law enforcement role makes the public-interest prong even more strongly met.
Are sworn officers treated differently from civilian public employees?
The compelling-public-interest analysis treats sworn officers specially because of the public trust vested in their position. Civilian public employees are subject to the same four-prong test, but the public-interest prong is more case-specific (depending on the rank, the controversy, and the nature of the infraction). For sworn officers with policy violations, the prong is presumptively met.
Does this apply to corrections officers?
Probably yes. Corrections officers exercise significant public authority and are typically treated similarly to sworn officers for compelling-public-interest analysis. The specific opinion line (Op. 2023-013, etc.) primarily concerns sworn law-enforcement officers, but the underlying public-trust reasoning applies broadly.
Background and statutory framework
Arkansas FOIA distinguishes personnel records (releasable unless disclosure is a clearly unwarranted invasion of privacy) from employee-evaluation records (releasable only if the four-prong test is met). The four-prong test:
- Suspension or termination (or constructive equivalent)
- Final administrative resolution
- Records formed a basis for the decision
- Compelling public interest
The forced-resignation pathway is established in the AG's opinion line, particularly Op. 2014-103 (forced/coerced resignation = constructive termination). The factual determination of forcing is custodian-made, subject to judicial review.
The law-enforcement-officer compelling-interest principle is established in Ops. 2023-013, 2014-129, 2009-146, and 2006-158. The reasoning: sworn officers exercise public trust authority including the use of force, arrest, and other powers; policy violations by such officers raise inherent public-interest concerns.
The leading commentary is John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017), at 237-39, which establishes the three-factor compelling-interest framework: (1) nature of the infraction, (2) public controversy, (3) employee's rank.
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(12) (personnel-records exemption)
- 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 process)
- 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)
- Ark. Att'y Gen. Op. 2014-103 (forced or coerced resignation as constructive termination)
- Ark. Att'y Gen. Ops. 2023-013, 2014-129, 2009-146, 2006-158 (law-enforcement-officer compelling-interest)
Source
Original opinion text
Opinion No. 2023-050
June 20, 2023
Mr. Thomas Gage
c/o Patrol Captain Philip Pevehouse
Sebastian County Sheriff's Office
800 South A Street
Fort Smith, Arkansas 72901
Dear Mr. Gage:
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.
Correspondence my office received indicates that your previous employer, Sebastian County, Arkansas, has received a request under the FOIA for "all written reprimands, letters of caution, records of employee misconduct[,] and records of disciplinary action [including] suspension, demotion[,] and termination" regarding your work with the Sebastian County Sheriff's Office. The custodian has forwarded to my office the document he intends to release in response to the FOIA request. You ask whether the custodian's decision to release the record is consistent with the FOIA.
RESPONSE
In my opinion, the custodian's decision to release the record is consistent with the FOIA.
DISCUSSION
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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. Here, the first two elements are met. The request was made to a county, which is a public entity and is subject to the FOIA. And the document I reviewed is a public record.
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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. Because the record at issue here has been classified as an employee evaluation, I will limit my analysis to that exclusion.
While the FOIA does not define the term "employee evaluation," 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.
If a document qualifies as an employee-evaluation record, 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, 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.
- Application. In my opinion, the custodian has correctly classified the Internal Review as an employee-evaluation record because that document was created by the employer to evaluate you. As an employee-evaluation record, the record cannot be disclosed unless each element in the foregoing four-part test is met.
In this instance, based on the facts provided to me, it is my opinion that the first prong of the test has been met. Per the custodian, while you resigned your position, that resignation was not voluntary. For purposes of the FOIA, a "forced or coerced resignation" occurs when an employee resigns "in the face of certain, impending termination." A forced resignation operates as a constructive termination that satisfies the level-of-discipline element. Whether the resignation was, in fact, forced, is a highly factual determination that can only be made by the custodian, subject to judicial review. Based on the custodian's representation that your resignation was forced, I conclude that the first prong is met.
The remaining prongs are also met. The constructive termination is final, and the Internal Review formed the basis for the constructive termination. The final prong 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. Because all these elements are present in this instance, the custodian has found that a compelling interest exists for the release of the Internal Review. In my opinion, that determination is consistent with the FOIA, and the Internal Review is subject to release.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General