Is a list of suspensions and disciplinary actions against Arkansas State Troopers a personnel record or an employee-evaluation record?
Plain-English summary
The Arkansas Department of Public Safety received an FOIA request for a list of currently employed Arkansas State Troopers "who have previously had a disciplinary action" resulting in a suspension. The Office of Professional Standards (OPS) maintained a spreadsheet with names, dates of incidents, assignment locations, policy infractions, complaint summaries, disposition details, and OPS numbers. The custodian (Colonel Hagar) classified it as a personnel record (not employee evaluation), determined release would not be a clearly unwarranted invasion of privacy, and intended to release. Two listed troopers objected. Hagar asked the AG.
Classification was wrong: it's an evaluation record. Suspension letters that just say "you are suspended" without specifying the reason are personnel records. Suspension letters that detail the substantive grounds (what the trooper did, what policy they violated, what the disposition was) are evaluation records. The OPS spreadsheet here doesn't just list names: it summarizes the reasons for each disciplinary action. That makes it the equivalent of a detailed disciplinary letter, which is an evaluation record under prior AG opinions.
The Arkansas Supreme Court adopted the AG's definition of evaluation records: created by or at the behest of the employer (1), to evaluate the employee (2), detailing performance or lack of performance (3). An OPS-maintained list of troopers' policy violations and disciplinary outcomes meets all three.
Apply the four-part test, not the personnel-records balancing test. Evaluation records cannot be released unless all four elements are met:
- Suspension or termination. ✓ The list is itself a suspension list, so each entry is by definition someone who was suspended.
- Administrative finality. The AG could not assess this; the custodian must check each entry to determine whether the disciplinary action has reached final administrative resolution (no appeal, no modification, no reversal pending).
- Relevance. ✓ The records detail the grounds for each suspension, which is the basis for the disciplinary action.
- Compelling public interest. ✓ The AG repeatedly held that law-enforcement officer policy violations and disciplinary records are matters of strong public interest because law-enforcement officers are "invested with a significant public trust."
So three of four elements are likely satisfied. The custodian's homework: confirm administrative finality on each entry. Once finality is confirmed for an entry, that entry must be disclosed under the four-part test.
What this means for you
Police administrators and records custodians
When a list compiles substantive disciplinary information across multiple officers, classify it as an evaluation record, not a personnel record. The "list" format does not change the analysis: each row is the equivalent of a disciplinary letter that details misconduct.
For the four-part test:
- Suspension or termination: the list inherently confirms element 1 for any included officer.
- Administrative finality: this is the work item. Track each disciplinary case through your internal appeal process. Once an officer's appeal window has closed (or the appeal is decided and not subject to further reversal), finality has attached. Document this on each entry.
- Relevance: confirmed by the list's content (grounds for discipline).
- Compelling interest: presumptively present for law enforcement officer misconduct.
Your release decision should be based on which entries have reached finality. Entries pending appeal should be withheld until finality attaches. Do not release the entire list while some entries are still subject to appeal.
News media and FOIA requesters
When a police agency denies access to a list of officer disciplinary actions citing "personnel records" exemption, push back. This opinion is direct authority that such lists are evaluation records subject to the four-part test, not the personnel-records balancing test. Three of four elements are presumptively met for police misconduct. The remaining question is administrative finality.
Ask the agency to provide release for entries that have reached finality. The agency cannot withhold the entire list because some entries are still pending appeal.
Civil rights attorneys
Useful in litigation involving police misconduct. The AG explicitly recognizes a strong public interest in law enforcement officer disciplinary records. When a department withholds disciplinary records, this opinion supports requests for release of finalized matters under FOIA.
Police unions
The classification rule means individual officers' disciplinary records are subject to release once administratively final, with strong public-interest justification. The protection comes from the appeal process, not from the personnel-records exemption. Push for clear, well-defined appeal windows so officers' due process rights are protected throughout the finality determination.
General public
Police disciplinary records relating to suspensions are public records once the discipline is administratively final. If your agency claims otherwise, this opinion supports your right to request release.
Common questions
My request was denied because the agency said the records were "personnel files." Is that final?
Not under this opinion. If the records contain substantive disciplinary information (grounds for the action, not just the fact of suspension), they are evaluation records. Resubmit the request citing this opinion.
What does "administratively final" mean?
The disciplinary action is no longer subject to internal appeal, modification, or reversal by the agency. If the officer has filed an internal grievance and a hearing is pending, finality has not attached. Once the agency's internal appeal process is exhausted, finality attaches.
Can the trooper sue to block release?
A subject's objection alone does not block disclosure (Op. 2023-102). The trooper could challenge the agency's release decision in court if they believe the release violates FOIA, but the four-part test is the controlling framework.
Does this rule apply to all law enforcement, or just state troopers?
The reasoning applies to any public-employer records of law enforcement misconduct that have reached administrative finality. The compelling-interest element specifically references law enforcement; for other public employees, that element may be harder to establish.
The list is from the OPS (Office of Professional Standards). Does that internal-affairs origin matter?
The Arkansas Supreme Court has explicitly extended the evaluation exemption to records of internal investigations into employee misconduct. The OPS origin does not protect the list from disclosure; it confirms the records are evaluation records. The four-part test then controls.
Can ASP redact officer names but release the underlying conduct?
Possibly for some entries. The personal-information redaction analysis would still apply. But the broader four-part test is about whether the substantive disciplinary record is released; name redaction does not avoid the test.
Background and statutory framework
The two FOIA exemption frameworks for personnel-file content 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 line between the two is the suspension-letter rule. Past AG opinions have held that a letter of suspension that does not specify the grounds for suspension is a personnel record (Ops. 2023-077, 2023-069, 2015-053), but a letter that states the grounds is an evaluation record (Ops. 2001-276, 2001-244). The 1998-075 opinion specifically analyzed a list containing law-enforcement officer disciplinary actions and treated it as an evaluation record. This opinion applies the same logic.
The compelling-interest element for law-enforcement records is anchored in Ark. Att'y Gen. Ops. 2023-071, 2023-013, 2014-129, 2006-026, all of which note law enforcement officers are invested with significant public trust.
The four-part test in § 25-19-105(c)(1) requires: suspension or termination; administrative finality; the records formed a basis for the discipline; and compelling public interest. Each element must be present; missing one means withholding is permitted.
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)
- Ark. Att'y Gen. Ops. 2023-077, 2023-069, 2023-071, 2023-013, 2015-053, 2015-072, 2014-129, 2006-026, 2001-276, 2001-244, 99-147, 1998-075
Source
Original opinion text
Opinion No. 2023-081
August 31, 2023
Colonel Mike A. Hagar, Secretary
Arkansas Department of Public Safety
1 State Police Plaza Drive
Little Rock, Arkansas 72209
Dear Colonel Hagar:
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 law 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 someone has submitted a FOIA request for a list of currently employed
Arkansas State Police Troopers "who have previously had a disciplinary action" resulting
in a suspension. You intend to disclose a list, which you say is maintained by the Arkansas
State Police Office of Professional Standards ("OPS"). The list contains Trooper names,
dates of incidents, assignment locations, policy infractions, complaint summaries,
disposition details, and the OPS numbers. You have classified this is as a personnel record,
the disclosure of which would not be a clearly unwarranted invasion of personal privacy.
Two of the employees listed on the spreadsheet object to your decision to release the
spreadsheet. You ask whether your decision to disclose these records is consistent with the
FOIA.
RESPONSE
In my opinion, your decision to classify the list as a "personnel record" is inconsistent with
the FOIA because the record is best classified as an "employee evaluation or job
performance record," not a personnel record. And while these types of records may still be
disclosed in limited circumstances, I am missing important information concerning the
finality of each disciplinary action listed. Therefore, I cannot determine whether the records
here meet all of the elements for disclosure under the FOIA.
DISCUSSION
For purposes of FOIA, two distinct groups of records are normally found in employees'
personnel files: personnel records or employee-evaluation records. The test for whether
these two types of documents may be released differs 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.
This spreadsheet containing Trooper-suspension information is analogous to a suspension
letter. Suspension letters may qualify as a personnel record or as an evaluation record
depending on the letter's contents. This office has consistently opined that a suspension
letter qualifies as a personnel record when the letter does not specify the grounds for
suspension. But this office has consistently opined that a suspension letter qualifies as an
evaluation record when that letter states the grounds for the suspension.
Here, the spreadsheet does not simply list names of Troopers who have been suspended.
Along with the Troopers' names, the spreadsheet includes the type of disciplinary action
and a summary of the reasons for the disciplinary action associated with each name. This
spreadsheet is akin to letters of suspension or disciplinary action containing substantive
reasoning for the disciplinary action taken, which makes the list here an evaluation record.
Therefore, in my opinion, the decision to classify this list as a personnel record is
inconsistent with the FOIA, and the list's disclosure should be considered under the test for
employee-evaluation records.
2. Employee evaluations. An employee-evaluation records cannot be released unless all
the following elements have been met:
1. Suspension or termination. The employee was suspended or terminated;
2. Administrative finality. The suspension or termination is administratively final
and is, therefore, incapable of any administrative reversal or modification;
3. Relevance. The records in question formed a basis for the decision to suspend or
terminate the employee; and
4. Compelling interest. The public has a compelling interest in the disclosure of the
records in question.
Here, at least three of the four elements likely are met. First, the provided information
indicates the listed employees were suspended. Second, the records are relevant to the
suspension because they detail grounds for the suspension. Third, the public has a
compelling interest in the disclosure of the records in question 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.
But I lack sufficient information to determine the administrative finality of each of the
listed disciplinary incidents. The custodian will need to assess each incident listed to
determine whether the matter is administratively final and incapable of any administrative
reversal or modification. If the suspensions are administratively final, then the decision to
disclose the list is consistent with the FOIA.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby
approve.
Sincerely,
TIM GRIFFIN
Attorney General