Can a city redact allegations from a non-disciplinary administrative suspension letter and withhold investigator notes about a resigned employee?
Plain-English summary
The City of Camden was facing FOIA review of two records: a suspension letter to a city employee in a leadership position (suspended with pay during an investigation), and the police department's "investigator notes" from a probe of misconduct allegations. The employee resigned partway through the investigation. The City Attorney asked the AG whether his redaction and withholding decisions were consistent with FOIA. The AG said: partially.
The suspension letter is a personnel record, not an evaluation record. The City Attorney appeared to believe the letter was an evaluation record because it summarized the allegations that triggered the suspension. The AG corrected this. The letter explicitly stated: "The suspension neither makes you guilty nor serves as a disciplinary action." It was administrative, not disciplinary. An administrative suspension letter that recites the grounds for the administrative suspension is still a personnel record, even though it discusses allegations.
The line between personnel and evaluation records depends on the nature of the action. Disciplinary suspension letters that detail the grounds for the discipline are evaluation records. Administrative suspension letters during pending investigation are personnel records, regardless of whether they discuss allegations. The administrative status drives classification.
Allegations cannot be redacted under the personnel-records balancing test. The custodian had used the Young v. Rice balancing test to redact allegations against the former employee. The AG disagreed. The "thumb on the scale" tilts toward disclosure. Even assuming the former employee has a privacy interest in the allegations, that interest is outweighed by the public's interest in knowing about alleged misconduct by a city leadership official. Cited prior opinions: Op. 2018-023 (concluding that conduct that was "extremely offensive and potentially unlawful" required disclosure under the balancing test).
Investigator notes: probably outside FOIA review jurisdiction. The notes detailed a police investigation, with witness statements, subpoenas, and search warrants. These are the hallmarks of a standard criminal investigation, not an internal administrative employment evaluation. The AG flagged that even though the notes ended up in the former employee's file, that does not retroactively transform them into employment records.
If the notes are best characterized as criminal investigation records, the AG's review jurisdiction under A.C.A. § 25-19-105(c)(3)(B)(i) does not extend to them. That subsection authorizes AG review only of personnel-records and evaluation-records exemptions, not of other FOIA exemptions (like the criminal-investigation exemption). The propriety of withholding under any other FOIA exemption is outside this opinion's scope.
Constructive termination as alternative. The AG suggested a backup analysis: if the former employee's resignation was actually a constructive termination (offered in face of "certain, impending termination"), then for purposes of the four-part evaluation test, element 1 (suspension or termination) would be satisfied. Combined with the other three elements (administrative finality through the resignation, relevance of the records to the cessation of employment, compelling public interest in leadership misconduct), the notes would have to be disclosed. But factual finding on whether the resignation was forced is for the custodian and ultimately a court, not the AG.
The bottom line: the custodian must determine whether the investigator notes are predominately an internal administrative investigation (in which case constructive-termination analysis controls) or a standard criminal investigation (in which case the question is outside this opinion).
What this means for you
City attorneys and records custodians
The disciplinary/non-disciplinary distinction is the controlling rule for suspension letters during pending investigations. If the letter says (or the action is) "you are suspended pending investigation, this is not a finding of guilt," the suspension is non-disciplinary and the letter is a personnel record. The letter's allegations and underlying conduct typically must be disclosed under the balancing test, especially when the employee held a leadership position.
When a public employee resigns during an investigation, classify the investigator notes carefully:
- If the notes were generated for an internal administrative employment review, evaluate under the four-part test (with constructive-termination analysis if the resignation was forced).
- If the notes were generated as part of a criminal investigation, the records may be exempt under different FOIA provisions (criminal investigation, ongoing criminal proceedings), and the AG's review under § 25-19-105(c)(3)(B)(i) does not reach those analyses.
Document which kind of investigation produced the notes. This is the determinative classification.
Police chiefs and internal affairs
If your department investigates a city employee on referral from the city, document whether the investigation is criminal in nature (witness statements, subpoenas, search warrants) or administrative (employee misconduct, policy violations, performance review). The classification affects FOIA treatment.
For administrative investigations of city employees, expect the four-part evaluation test to apply with possible constructive-termination considerations if the employee resigns under pressure.
News media and FOIA requesters
When a city refuses to release allegations against a leadership official, push the disciplinary/non-disciplinary distinction. Administrative suspensions are personnel records; allegations cannot be hidden under the personnel-records balancing test when the public interest is strong.
For investigator notes: ask the city whether the investigation was criminal or administrative. If criminal, look at separate FOIA exemptions for criminal investigations. If administrative, look at constructive-termination analysis.
Municipal employees
Your suspension letter is a personnel record, not a private letter to you. If it discusses allegations, those allegations are likely public records once the suspension is administrative (regardless of disciplinary outcome). Your privacy interest in the allegations is real but limited, and the personnel-records balancing test rarely supports redaction when public interest is strong.
If you are considering resigning during an investigation to avoid public exposure, understand that constructive-termination analysis can render the underlying investigation file disclosable anyway. Talk to counsel before deciding.
Police chiefs investigating elected officials or city leadership
The public interest in misconduct by leadership officials is high. The personnel-records balancing test rarely supports broad redaction in those cases. Plan investigation documentation knowing that finalized records are likely disclosable.
Common questions
An employee was suspended pending investigation. The city said the suspension was administrative, but the public discussion was all about alleged misconduct. What gets disclosed?
The administrative suspension letter is a personnel record. The grounds (allegations) discussed in the letter likely must be released under the personnel-records balancing test, because the public interest in leadership misconduct outweighs the privacy interest. Some narrow personal information may still be redacted (home address, family details, medical details).
Why aren't allegations redacted to protect the former employee's reputation?
Because the personnel-records balancing test starts with a "thumb on the scale" toward disclosure. The subject's preference about disclosure is irrelevant; the test is objective. For city leadership, the public interest is strong.
The employee resigned. Can the city refuse to release the investigation findings?
Maybe, depending on whether the resignation was voluntary or constructive. If voluntary, the four-part test fails at element 1 (no suspension or termination). If constructive (forced under threat of termination), the four-part test likely applies and disclosure is required. The custodian must make this factual determination.
The notes are described as "police investigator notes." Aren't those automatically criminal investigation records?
Not necessarily. Police departments sometimes investigate internal city personnel matters at the city's request. The classification depends on the investigation's purpose and methods. Witness statements, subpoenas, and search warrants are characteristic of criminal investigations, but their presence alone doesn't determine the classification.
What if the custodian wrongly classifies the investigator notes as criminal when they were really administrative?
The classification can be challenged in court. If a court finds the notes were administrative employment records, the constructive-termination analysis applies and disclosure may be required. This is one reason why custodian classification decisions need to be carefully documented.
Can the former employee block disclosure of the investigation file?
Generally no. The subject's objection is not a basis to withhold under FOIA (Op. 2023-102). The custodian's classification, the four-part test, and the personnel-records balancing test are objective frameworks.
Background and statutory framework
The two FOIA exemption frameworks are A.C.A. § 25-19-105(b)(12) (personnel records, with the Young v. Rice balancing test) and § 25-19-105(c)(1) (employee evaluation records, with the four-part disclosure test). The AG review mechanism is § 25-19-105(c)(3)(B)(i), which authorizes review only of these two exemptions.
For non-disciplinary administrative suspensions: the AG has consistently treated the underlying letter as a personnel record, not an evaluation record. Past opinions: 2023-069 (the prior round of review for this same Camden situation), and the broad framework in Op. 2014-110 distinguishing disciplinary from non-disciplinary suspensions.
The constructive-termination doctrine for FOIA evaluation-records analysis: an employee's resignation in the face of "certain, impending termination" can satisfy element 1 of the four-part test. Past opinions: 2012-019, 2011-084.
The Arkansas Supreme Court's Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, defines evaluation records (records created by/for the employer to evaluate the employee, detailing performance). Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466, applied that definition. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), articulates the balancing test for personnel records.
The "outside the scope" rule for AG review of non-personnel/non-evaluation FOIA exemptions: Ops. 2015-034 (n.1), 2014-007. The AG's review under § 25-19-105(c)(3)(B)(i) does not extend to other FOIA exemptions like the criminal-investigation exemption.
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(c)(1) (employee evaluation exemption and four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism, scope-limited)
- Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992)
- Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471
- Ark. Att'y Gen. Ops. 2023-069, 2018-023, 2015-072, 2015-057, 2015-034, 2014-110, 2014-007, 2012-019, 2012-077, 2011-084, 2009-067, 2006-038, 2003-073, 2001-276, 1998-260, 99-147, 95-351, 93-055
Source
Original opinion text
Opinion No. 2023-077
August 23, 2023
Michael W. Frey, Esq.
Camden City Attorney
Post Office Box 715
Camden, Arkansas 71711
Dear Mr. Frey:
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. As the records
custodian, you have provided the following background information.
On June 23, 2023, the City of Camden was made aware of allegations that a city employee, who
was in a position of leadership, engaged in misconduct. On that same day, because of the
allegations, the city immediately suspended the employee with pay while "the allegations were
being reviewed." The city also memorialized that suspension in a letter issued to the employee.
About two weeks later, while the investigation was still pending, the employee voluntarily
resigned. Two weeks after the resignation, the investigation, which had been undertaken by the
city's police department, completed its investigation and sent its "investigator notes" to the city's
mayor.
Someone has made a request under the FOIA for the former employee's employment records. You
have asked me to review your decisions regarding two of those records:
- Redaction in the suspension letter. You have asked me to review your decision to
disclose a redacted version of the suspension letter. In Opinion No. 2023-069, I reviewed
your decision to disclose the redacted version of this letter, but not the redaction itself. That
was because I had not been provided with an unredacted copy of the letter, so I had no way
of knowing what was being redacted. You have received a new FOIA request for this letter
and have now provided me with both redacted and unredacted copies of the letter.
- Investigator notes. You have also asked me to review your decision to withhold the
investigator notes from disclosure.
RESPONSE
In my opinion, your decision to redact the suspension letter is inconsistent with the FOIA because,
for reasons explained below, the letter is best classified as a personnel record, not an employee
evaluation. And, in my opinion, the personnel records balancing test does not permit the redaction.
Because your decision to withhold the investigator notes turns on a fact that I am unable to assess
based on the information before me, I am unable to definitively say whether your decision
regarding this record is consistent with the FOIA.
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.
1. 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.
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.
2. 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 that were 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:
- Suspension or termination. The employee was suspended or terminated;
- Administrative finality. The suspension or termination is administratively final 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; and
- Compelling interest. The public has a compelling interest in the disclosure of the records
in question.
3. The suspension letter. As I noted in Opinion No. 2023-069, the suspension letter is best
classified as a personnel record. Public records are personnel records when (1) they pertain to an
individual employee, as this suspension letter clearly does; and (2) they are not an employee
evaluation. This second element appears to be the sticking point here.
Documents are employee evaluations when they are created by or at the employer's behest to
evaluate an employee. But the letter itself makes clear that the employee has yet to be evaluated,
noting that the employee was suspended with pay while the city will be "thoroughly
investigat[ing]" the allegations. Based on the facts you have relayed and the information contained
in the suspension letter, the letter itself was not created by the employer to evaluate the employee.
Therefore, it cannot be an employee-evaluation record.
You appear to believe that the letter is an employee-evaluation record because it summarizes the
allegations that led to the administrative suspension. This office has long concluded that when a
suspension or termination letter recounts the grounds for the adverse-employment action, that letter
qualifies as an employee evaluation. But those opinions do not apply here because they all relate
to disciplinary suspensions. The suspension at issue here is purely administrative and non-
disciplinary, something the letter expressly states: "The suspension neither makes you guilty nor
serves as a disciplinary action." If an employer memorializes an administrative suspension in a
letter and states the grounds for the administrative suspension, the suspension is still administrative
in nature, not evaluative or disciplinary. Therefore, the letter as a whole is a personnel record,
even though it includes the allegations that caused the administrative suspension.
The next question is whether the personnel records balancing test under Young v. Rice requires the
allegations to be redacted. Even assuming the former employee has some privacy interest in the
redacted information, in my opinion that interest is far outweighed by the conjunction of the
"thumb on the scale favoring disclosure" and the public's interest in knowing allegations that a
city official in a position of leadership and trust may have abused that trust.
4. The investigator notes. Your correspondence indicates that, after receiving the allegations, the
city "tasked" the police department "to review the allegations." That investigation began on or
around the day the allegations were received, continued during the administrative suspension, and
concluded two weeks after the former employee resigned. The notes detail the investigation by the
police department, which submitted the notes to the mayor. You say that the "police department
did not consider" the investigation to be "a formal police investigation."
The critical question regarding these investigator notes is the document's classification: Is it an
employee evaluation, a personnel record, or neither?
While you do not expressly say so, your correspondence indicates you believe that the document
is an employee evaluation. If it is, then your decision to withhold the document from disclosure is
consistent with the FOIA only if the former employee voluntarily resigned. If his resignation was
forced, i.e., if it was offered in the face of "certain, impending termination", then it qualifies as
a constructive termination that would meet the first element for the disclosure of evaluation
records. Since the other three elements of the test would easily be met here, the notes would have
to be disclosed. But because I am not a factfinder when issuing opinions, I am unable to assess
whether the resignation was forced.
Nevertheless, I question whether the investigator notes even meet the definition of an employee
evaluation. Nothing in the document indicates it was created at the behest of the former employee's
employer. Instead, the document's content reflects a standard criminal investigation, including
witness statements, subpoenas, and search warrants. This conduct is generally consistent with
criminal investigations, not internal administrative investigations. If the document is simply a
record of a standard criminal investigation, it does not become an evaluation simply because it is
later made part of the former employee's file. If the notes are best characterized as a criminal
investigation, then propriety of your decision to withhold them from disclosure is outside the scope
of an opinion under A.C.A. § 25-19-105(c)(3)(B)(i).
Ultimately, I lack sufficient facts to assess whether the investigator notes are an employee
evaluation. You, as the custodian, must determine whether, based on all the facts, the notes were
predominately the result of an internal, administrative investigation or of a standard, criminal
investigation. If the former, then the notes cannot be disclosed unless the former employee's
resignation was a constructive termination. If the latter, then the propriety of your decision is
outside the scope of this sort of an opinion.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General