Can a former Arkansas deputy block release of his 2014 misconduct investigation records nine years after termination?
Plain-English summary
A former Benton County Sheriff's Office deputy was terminated in November 2014. Nine years later, someone filed a FOIA request for his records. The custodian planned to release: an investigative summary documenting interviews about alleged policy violations, the termination letter, and a large set of administrative records (employment application, equipment records, training certificates, final paycheck calculation). The deputy's attorney asked the AG to review.
The AG concluded the release is consistent with FOIA on every category, and the attorney's objections all fail.
Administrative records and termination letter are personnel records. These pertain to the individual employee but were not created to evaluate him. Standard employment information (application, equipment issued, training completed, final paycheck) is the kind of content that almost always fails the Young v. Rice balancing test for withholding. The privacy interest is minimal. The exception: the deputy's date of birth on page 1 should be redacted under the personnel-records balancing test (Ops. 2023-001, 2007-064). The termination letter is also a personnel record because it does not state the grounds for termination; if it did, it would become an evaluation record.
Investigative summary is an evaluation record subject to the four-part test, and all four elements are met.
1. Suspension or termination: the deputy was terminated. ✓
2. Administrative finality: the termination occurred nearly ten years ago and is incapable of any administrative reversal or modification. ✓
3. Relevance: the investigative records detail the policy violations that formed the basis for termination. ✓
4. Compelling public interest: law-enforcement officers occupy a position of significant public trust, so the public has a compelling interest in records of officer policy violations. ✓
The attorney's three objections all fail.
- Objection 1: "My client did not receive a final administrative proceeding." Misreads the finality element. The element does not require a hearing; it requires that the discipline be incapable of administrative reversal or modification. A nine-year-old termination is final.
- Objection 2: "The termination letter doesn't reference the grounds, so the investigative records don't tie to the termination." FOIA does not require the termination letter to expressly state the grounds. It requires that the investigative records formed "a basis for the decision." The custodian's factual assessment, supported by the AG's review of the records, is that they did. The attorney offered no contrary reason.
- Objection 3: "The compelling-interest test isn't met just because my client was a law-enforcement officer." The attorney cites Op. 2021-049 (which addressed a part-time city employee). True that the public's general interest in employees is not compelling, and true that being a law-enforcement officer alone is not enough. But the AG has consistently held that records of a law-enforcement officer's violation of departmental policies do meet the compelling-interest test. That is the situation here.
The takeaway: a long-finalized termination of a law-enforcement officer with documented policy violations is exactly the case where FOIA's evaluation-records exemption gives way to disclosure.
What this means for you
Law-enforcement agencies and records custodians
When a request comes in for an officer's investigative file, walk the four-part test for the investigative summary itself (which is the evaluation record), and the Young balancing test for personnel-record components (administrative file, termination letter without grounds). Do not bundle them together.
For administrative finality, the question is whether the discipline is still subject to internal reversal or modification. A termination from nine years ago is final. A termination from last month, with an active grievance pending, is not. Document the finality status in your internal file.
For compelling interest in law-enforcement records, the AG's position is consistent and direct: officer-misconduct records meet the compelling-interest test because of the public-trust position officers occupy. You do not need to develop a case-specific public interest; the position itself supplies it.
For grounds-tied-to-termination relevance, if the termination letter does not state the grounds, you may still find relevance in the underlying investigative file. Document your assessment that the investigation formed a basis for the termination decision.
Watch for personal information in administrative records. Date of birth in particular gets redacted under personnel-records balancing.
Police officers and former officers
Your investigative records become FOIA-releasable once your discipline is administratively final. "Final" means no internal appeal, modification, or reversal is pending. If you settle a wrongful-termination claim and the settlement leaves the termination on the books, the discipline is final. If you are reinstated, the analysis changes.
You cannot block release by pointing to a missing formal hearing. Most administrative finality happens without one. You also cannot block release by pointing to a vague termination letter; the FOIA test is about whether the investigation formed a basis for the discipline, not what the letter says on its face.
Attorneys representing officers in FOIA challenges
The objections raised in this case all failed. Going forward, the productive challenges focus on:
- Whether the discipline is genuinely final (active grievance, pending arbitration, settlement in negotiation).
- Whether specific items inside the file fall under separate exemptions (medical records, family information, juvenile witnesses).
- Whether the AG's compelling-interest finding extends to the specific facts (e.g., minor procedural infractions vs. substantive misconduct).
- Whether the redactions are properly done (Op. 2023-078 on blackout vs. whiteout).
News media and civil rights attorneys
Use this opinion as direct authority that nine-year-old completed terminations of law-enforcement officers with documented policy violations are FOIA-releasable. The four-part test is largely automatic in this fact pattern. Push back on agencies that withhold under "personnel records" without engaging the evaluation-records analysis.
General public
Records of police officer policy violations, once the discipline is final, are public records in Arkansas. If you are researching an officer's history, FOIA is your tool. If an agency declines, ask them which exemption they are applying and which element of the four-part test fails. They have to articulate it; "personnel records" is not an answer when the records describe misconduct.
Common questions
My client's termination is being appealed in court. Is it administratively final?
Probably yes for FOIA purposes. Court litigation is judicial review, not administrative reversal. Once the agency's internal process is done, finality has attached. Court proceedings are a separate track. Agencies sometimes adopt a more conservative position and withhold during active litigation, but the AG's view is that internal-process finality controls.
The custodian planned to release my date of birth. Can I object?
Yes, and you should win on that point. Date of birth in personnel records is exempt under personnel-records balancing (Ops. 2023-001, 2007-064). It should be redacted. Other personal-contact information (home address, personal phone, personal email) is also exempt under § 25-19-105(b)(13).
The termination letter doesn't say why I was fired. Doesn't that protect the investigation?
No. The FOIA evaluation-records test asks whether the investigation formed a basis for termination, not whether the letter recites the grounds. Vague termination letters do not protect underlying investigative records.
What if the investigation cleared me but the agency terminated me for an unrelated reason?
Then the relevance element of the four-part test may not be met for that investigation. The AG would look at the connection between the investigation and the termination decision. If they are unrelated, the investigative records may not be releasable as evaluation records (though they might still be releasable as personnel records under balancing, depending on content).
What about the investigation that resulted in a suspension, not termination?
The four-part test also covers suspensions. The element is "suspension or termination," and the rest of the test follows the same way. A finalized suspension with documented misconduct of a law-enforcement officer is releasable.
What if I was acquitted criminally but disciplined administratively?
The administrative discipline is what the FOIA test focuses on. Criminal acquittal is on a separate track and does not undo administrative discipline for FOIA purposes. The investigative records remain releasable if all four elements are met.
Background and statutory framework
The four-part test for evaluation records is in A.C.A. § 25-19-105(c)(1): suspension or termination, administrative finality, relevance to the discipline, and compelling public interest. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-element definition of evaluation records: created by or at the behest of the employer, to evaluate the employee, with regard to a specific incident.
The personnel-records test is in A.C.A. § 25-19-105(b)(12) and Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), with the Stilley v. McBride burden allocation (332 Ark. 306, 1998).
The line between personnel records and evaluation records for termination letters: a letter without grounds is a personnel record; a letter that states the grounds becomes an evaluation record (Op. 2014-084).
The compelling-interest element for law-enforcement records is anchored in Ark. Att'y Gen. Ops. 2023-013, 2014-129, 2009-146, 2006-158, all of which note law-enforcement officers' position of significant public trust. Op. 2021-049, which the attorney here cited, is consistent: it addressed a different fact pattern (part-time city employee), and its holding (that a general interest in public employees is not compelling) is not in tension with the law-enforcement-misconduct rule.
Date of birth and similar discrete items in personnel records are subject to redaction even when the file as a whole is releasable (Ops. 2023-001, 2007-064).
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(1) (evaluation records exemption and four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject right to AG review)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466
- Ark. Att'y Gen. Ops. 2023-013, 2023-001, 2021-049, 2015-072, 2015-057, 2014-129, 2014-084, 2009-210, 2009-146, 2009-067, 2007-064, 2006-158, 2006-038, 2003-073, 99-147, 95-351, 93-055
Source
Original opinion text
Opinion No. 2023-071
August 7, 2023
Alicia Canfield, Esq.
224 South 2nd Street
Rogers, Arkansas 72756
Dear Ms. Canfield,
You say you are the attorney for a former public employee whose records have been requested under the Arkansas Freedom of Information Act (FOIA). The custodian has decided to disclose redacted versions of your client's records. And, under A.C.A. § 25-19-105(c)(3)(B)(i), you have asked me to review that decision.
Your correspondence includes the following investigative, disciplinary, and administrative records, all of which the custodian intends to disclose:
- Investigative records: A document dated November 17, 2014, and entitled "Investigative Summary." This document details the interviews conducted by a detective with the Benton County Sherriff's Office while he investigated allegations that your client violated office policy;
- Disciplinary record: A letter dated November 21, 2014, that notifies your client of his termination effective on that date; and
- Administrative records: A large set of administrative records, which include your client's initial application for employment, records of the kind of equipment he was periodically issued, certificates for completing different kinds of training, and an undated document that reflects the total hours of pay for which he was eligible for his final paycheck.
You lodge three specific objections to the disclosure of the investigative records, and you ask for me to review the foregoing records to determine "whether any records contemplated for production are in fact exempt from disclosure or should otherwise be redacted."
RESPONSE
In my opinion, the custodian has correctly decided to disclose each of the foregoing sets of records. Your objection fails because, as this office has routinely concluded, the public has a compelling interest in records that reflect misconduct of law-enforcement officials because they occupy a position of great public trust.
DISCUSSION
For purposes of the FOIA, two groups of records are normally found in employees' personnel files: "personnel records" or "employee evaluation or job performance records." These two sets of records' definitions and tests for disclosure differ significantly.
- Personnel records. While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee. In my opinion, the administrative records and the termination letter are clearly personnel records. (A termination letter is a personnel record. But if it recites the grounds for the termination, this office has consistently opined that the letter qualifies as an employee-evaluation letter.)
A personnel record is open to public inspection 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 "a thumb on the scale" in favor of disclosure, has two steps. First, 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 de minimis privacy interest. If the privacy interest is minimal, then the thumb on the scale in favor of disclosure tips the balance to require disclosure. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure.
In my opinion, the disclosure of the disciplinary and administrative records, considered as a whole, do not rise to the level of a clearly unwarranted invasion of personal privacy. Both sets of documents reflect the standard kinds of employment information in most employee's files. (The first page of the administrative records shows your client's date of birth, which should be redacted under the personnel-records balancing test.) Therefore, the custodian's decision to disclose these two sets of records is consistent with the FOIA.
- Employee evaluations. 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, like the investigative records at issue here, that were generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. Therefore, the investigative records are properly classified as employee evaluations.
If a document qualifies as an employee-evaluation record, the document cannot be released unless, as is the case here, all the following elements have been met:
- Suspension or termination. The employee was suspended or terminated, which is clearly the case here;
- Administrative finality. The suspension or termination is administratively final, which is the case here because your client's termination occurred nearly ten years ago and is, therefore, incapable of any administrative reversal or modification;
- Relevance. The records in question formed a basis for the decision to suspend or terminate the employee, which is the case here on the face of the investigative records themselves; and
- Compelling interest. The public has a compelling interest in the disclosure of the records in question, which is the case here 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, the custodian's decision to disclose the investigative records is consistent with the FOIA.
- Your objections. You object to the disclosure of the investigatory records because, you argue, the last three elements required for disclosure are not met. Each objection is mistaken.
First, you say the requirement that your client's termination be administratively final has not been met here because your client "did not receive a final administrative proceeding for his" termination, the investigatory records cannot be disclosed. You seem to be misreading this element to require that an employee receive an adjudicative proceeding before the element can be met. Not so. This element prevents the release of employee evaluations that reflect suspension or termination while there is still some chance the adverse employment action could be administratively reversed or modified. Therefore, this objection fails.
Second, you assert that the relevance test is not met because your client's termination letter does not reference the grounds for his termination: "[T]he basis of [your client's] termination has not been noted by the Benton County Sheriff's Office to have any bearing on the internal investigation report." This objection is mistaken for two reasons. First, the FOIA does not require that the documents expressly state why your client was being terminated. Rather, the FOIA requires that the investigatory records formed "a basis for the decision suspension or termination." The custodian appears to have made that factual assessment, and my review of the records supports that assessment. Further, you have not provided any reason to think the termination is unrelated to the policy violations reflected in the investigatory records.
Third, you argue that the public lacks a compelling interest in the investigatory records. To support this argument, you rely on Attorney General Opinion No. 2021-049, which states that "a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists." Instead, the opinion states, the existence of "a link between a given public controversy, an agency associated with a controversy in a specific way, and an employee within the agency who commits a serious breach of the public trust" is sufficient to satisfy the compelling public interest requirement. Relying on this excerpt, you claim that "simply because [your client] was a law enforcement officer…does not in itself create a compelling public interest in the disclosure of" the investigatory records.
Your objection is mistaken for two reasons. First, your claim does not follow from my predecessor's opinion, with which I agree. That opinion addressed the compelling-interest test in the context of a part-time city employee, not a law-enforcement officer. Second, your objection does not support your conclusion that the records should be withheld. You are right that the public does not have a compelling interest in records simply because they are about a law-enforcement officer. But that is not the issue here. This office has consistently concluded that the public does have a compelling interest in records that, like the investigatory records, reflect a law-enforcement officer's violation of departmental policies. This long-standing conclusion is based on the position of public trust law-enforcement officers enjoy. Therefore, your objection fails.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General