Can a city redact a former police officer's records with whiteout, and can it withhold his termination letter and administrative-leave letter under FOIA?
Plain-English summary
After Op. 2023-110 returned the Bay PD personnel file with instructions to do the two-step classification analysis, City Attorney Zachary Morrison redid the work and resubmitted. He had divided the records into two groups: those he would disclose (with certain redactions for SSN, DOB, DLN, and similar) and those he would withhold. He asked the AG to confirm.
The AG concluded the decisions are only partly consistent with FOIA.
Background of the underlying facts. The former officer was placed on administrative leave pending an internal investigation. The investigation found "no policy violations." The city then terminated him "based on the City's at-will employment policy" rather than for cause.
The disclosable records (correct). Morrison's decision to disclose the records he marked as appropriate for release is consistent with FOIA. His decision to redact identifiers like SSN, DOB, DLN, and similar information is also correct under the Young v. Rice balancing test, since those particulars are personal and the privacy interest in them outweighs the public interest.
The redaction method (incorrect). Under A.C.A. § 25-19-105(f)(3), redactions must be made so that one can see both the "amount" and "place" of the redaction. Whiteout (which Morrison apparently used) erases the existence of the redacted text. Black marker preserves the visible space, indicating both that something is redacted and how much. Use a black marker.
The withheld records (mostly incorrect). Two of the documents Morrison withheld are personnel records that should be disclosed:
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Termination memo. Long-standing AG practice (Op. 2023-041, 2013-155) holds that a termination letter merely reflecting the fact of termination, without elaborating on reasons, is a personnel record (not an evaluation record). Since the Bay termination memo only states the fact of termination, it is a personnel record. Disclosure would not be a clearly unwarranted invasion of personal privacy. So withholding it is inconsistent with FOIA.
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Administrative-leave letter. The custodian apparently treated this as an evaluation record because it summarized the allegations that triggered the investigation. But the suspension here is "purely administrative and non-disciplinary," as the letter itself notes ("paid administrative leave pending the outcome of internal and external investigations"). Long-standing AG practice (Op. 2023-077, Op. 2023-117) treats letters memorializing administrative (non-disciplinary) actions as personnel records, even when they recite the underlying allegations. So this letter too is a personnel record, and disclosure would not be a clearly unwarranted invasion of personal privacy.
The opinion completes the cycle from Op. 2023-110: blanket withholding was wrong (110), then per-document classification got most things right but two important records still incorrectly classified, plus a redaction-method correction (111).
What this means for you
FOIA requesters
Watch for both classification errors and redaction-method errors. The Bay sequence shows the AG correcting both:
- A custodian who classifies a record by its surface content (e.g., "this letter mentions allegations, so it's an evaluation") rather than by the action documented (administrative reassignment vs. discipline) is making the wrong call.
- A custodian who uses whiteout instead of a black marker is breaking the rule that redactions must show "amount" and "place."
If you receive records with whiteout, request reproduction with black marker so you can see the structure of the redactions.
City attorneys and records custodians
Two practical lessons:
- Termination memo classification. A termination memo that just states the fact of termination is a personnel record, not an evaluation. Only a letter that elaborates on the reasons for the termination is an evaluation. (Op. 2023-041, 2013-155.)
- Administrative-leave letter classification. A letter placing an employee on administrative leave pending investigation is a personnel record, even when it recites the allegations that prompted the investigation. The action being documented is administrative, not disciplinary. (Op. 2023-077, 2023-117.)
For redactions, use a black marker on physical documents or a similar visible-redaction method on PDFs. Whiteout is not compliant with A.C.A. § 25-19-105(f)(3).
HR managers and police chiefs
Build the classification logic into your records-management practice. The action documented controls, not the surface content. A reassignment letter is a personnel record. A leave-of-absence-pending-investigation letter is a personnel record. A disciplinary letter that explains the discipline is an evaluation record. A bare termination memo is a personnel record.
News media
Bare termination memos and administrative-leave letters for police officers are reliably disclosable under Arkansas FOIA. If a custodian withholds either, this opinion is your citation.
Civil rights attorneys
The Bay sequence (Op. 2023-110, then Op. 2023-111) is useful when documenting a pattern of FOIA noncompliance: the city first did blanket withholding, then per-document classification but with classification errors. This kind of progressive correction shows the AG actively enforcing the two-step framework.
Common questions
Why is the termination memo a personnel record if the officer was actually terminated?
Because the memo at issue here just states the fact of termination, with no elaboration on the reasons. AG practice treats the explanation-vs.-bare-fact distinction as the line between evaluation and personnel records. A termination letter that explains the grounds is an evaluation; a termination memo that just says "you are terminated" is a personnel record.
Why is the administrative-leave letter a personnel record if it discusses allegations?
Because the action being documented is administrative (placing on paid leave pending investigation), not disciplinary. The action drives the classification, not the content of the underlying allegations. The same logic applied in Op. 2023-117 (Alexander police officer reassignment letter).
Can the city use whiteout if it's already done?
The AG noted whiteout is the apparent method here and corrected it. For prospective requests, use a black marker. For records already redacted with whiteout, the city should redo the redactions before producing them.
What about SSN, DOB, and similar identifiers?
Those are properly redacted as personal identifiers whose disclosure would be a clearly unwarranted invasion of privacy. The AG approved Morrison's redaction of these.
What if the city used at-will termination instead of for-cause?
The fact pattern here was at-will termination after an investigation found no policy violations. That sequence does not change the classification: the termination memo (bare statement) is still a personnel record, and the leave letter (administrative action) is still a personnel record.
Does this opinion supersede Op. 2023-110?
No, it builds on it. Op. 2023-110 said blanket withholding was wrong; Op. 2023-111 took the next step and addressed specific records.
What about other records in the file?
The AG approved the rest of Morrison's withholdings (those records he had marked as inappropriate for release, except the termination memo and admin-leave letter). The AG's review was document-by-document.
Background and statutory framework
A.C.A. § 25-19-105(b)(12). Personnel records are open to inspection except where disclosure would be a clearly unwarranted invasion of personal privacy.
A.C.A. § 25-19-105(c)(1). Employee-evaluation records may be released only if all four elements are met (suspension/termination, finality, relevance, compelling public interest).
A.C.A. § 25-19-105(c)(3)(B)(i). Authorizes AG opinion requests on FOIA release decisions.
A.C.A. § 25-19-105(f)(3). Redactions must be made so the amount and place of the redaction are visible.
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Two-step balancing test for personnel records.
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. Arkansas Supreme Court adopted the AG's definition of "employee evaluation or job performance records": records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance on the job.
Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466. Court of Appeals followed Thomas v. Hall.
Long-standing AG opinions. Op. 2023-041, 2013-155 (bare termination letters are personnel records). Op. 2023-077 (foundational classification framework). Op. 2023-117 (administrative reassignment letters are personnel records). Op. 2015-057, 2015-072, 99-147, and others.
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request procedure)
- A.C.A. § 25-19-105(f)(3) (redaction format)
- 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
- John J. Watkins, et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 202, 208 (Arkansas Law Press, 6th ed., 2017)
- Ark. Att'y Gen. Op. 93-055, 95-351, 99-147, 2003-073, 2006-038, 2009-067, 2013-155, 2015-057, 2015-072, 2023-041, 2023-077, 2023-110, 2023-117
Source
Original opinion text
Opinion No. 2023-111
November 21, 2023
Zachary Morrison
City Attorney, City of Bay
1205 Milo Street
Lake City, Arkansas 72437
Dear Mr. Morrison:
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 employment-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.
You indicate that someone has submitted a FOIA request for the personnel file of a former police officer who was employed by the City of Bay Police Department. You report that the former officer was "placed on administrative leave pending an internal investigation." At the conclusion of the investigation, the city "found no policy violations" and "opted to terminate" the employment of the former officer "based on the City's at-will employment policy." You have provided the set of records you believe are responsive to the request, and you have divided those records into two groups:
- Records to be disclosed: The first group consists of records that you believe are "appropriate for release under FOIA," with certain redactions for "SSN, DOB, DLN, and other information that," if disclosed, could constitute an unwarranted invasion of the former officer's personal privacy.
- Records to be withheld: The second group consists of records that you believe to be "inappropriate for release."
You ask whether these decisions are consistent with the FOIA.
RESPONSE
In my opinion, your decisions are only partly consistent with the FOIA. Some of the records you intend to withhold should be disclosed. And the manner, as opposed to the content, of your redactions is inconsistent 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.
- 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.
- 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.
- Application. Under the foregoing definitions, every record you have forwarded to me for review is a personnel record. Therefore, every document must be disclosed unless doing so constitutes a clearly unwarranted invasion of the former officer's personal privacy, or a more specific provision of Arkansas law requires the document to be withheld.
In my opinion, your decision to disclose the set of records you have marked "appropriate for release" is consistent with the FOIA. Further, your decisions to redact the former officer's date of birth, Social Security number, etc. are consistent with the FOIA. Under A.C.A. § 25-19-105(f)(3), redactions must be made in such a way that one can see both the "amount" and "place" of the redaction. The surest way to comply with these requirements when redacting from paper documents is to use a black marker—not whiteout, as you have apparently done here.
Your decision to withhold the set of records you have marked as "inappropriate for release" is consistent with the FOIA, with two exceptions. Your decision to withhold the "termination memo" is not consistent with the FOIA. This office has consistently opined that when a letter of termination merely reflects the fact of termination, without elaborating on the reasons for the termination, the letter is properly classified as a "personnel record." Since the letter at issue here merely states the fact of termination, the letter is a personnel record whose disclosure would not constitute a clearly unwarranted invasion of personal privacy. Therefore, your decision to withhold it from disclosure is not consistent with the FOIA.
Likewise, your decision to withhold what you describe as the "letter of administrative leave" is also not consistent with the FOIA. 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 notes when it states that the investigation has not been completed: "[P]lease be advised that you are placed on paid administrative leave pending the outcome of internal and external investigations." (Emphasis added.) 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. Further, in my opinion, the FOIA requires the letter's disclosure because doing so would not be a clearly unwarranted invasion of personal privacy.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General