Under Arkansas FOIA, can a city withhold a letter notifying a police officer of his administrative reassignment pending an internal investigation?
Plain-English summary
Alexander city attorney Chris Madison received a FOIA request for any "written directive placing" a specific police officer on "leave or suspension." The relevant document was a letter that did two things: it notified the officer that an internal investigation had been opened on him, and it described the new duties he was being reassigned to while the investigation ran. The reassignment was administrative, not disciplinary; the officer had not been suspended or terminated.
Madison concluded the letter was an "employee-evaluation record" and therefore exempt from disclosure (because Arkansas FOIA only releases evaluation records of employees who have been suspended or terminated). He asked the AG to confirm.
The AG disagreed and concluded the letter is a personnel record, not an evaluation, which means it must be disclosed.
The reasoning turns on a long-standing distinction in Arkansas FOIA practice between two record types:
Personnel records. Records that pertain to an individual employee but were not created at the employer's behest to evaluate the employee's performance on a specific incident. These are open to inspection unless disclosure would be a "clearly unwarranted invasion of personal privacy." A balancing test (Young v. Rice) weighs the public's interest in access against the individual's privacy interest, with a "thumb on the scale" toward disclosure.
Employee evaluation or job performance records. Records created by or at the behest of the employer to evaluate a specific employee's performance on a specific incident. These are exempt unless: (1) the employee was suspended or terminated; (2) the action is administratively final; (3) the records formed the basis for the action; and (4) there is a compelling public interest in disclosure.
The custodian's mistake was to treat any letter that mentions allegations against an employee as automatically an evaluation record. The AG explained that the specific test is whether the letter documents a disciplinary or evaluative action against the employee. The Alexander letter documented a purely administrative action: reassigning the officer to different duties while an investigation ran. Reassignments without discipline are administrative, not evaluative, even when the underlying reason is an allegation of misconduct.
Once the letter is classified as a personnel record, the next question is whether the personnel-records balancing test requires any redactions. The AG concluded no. Even assuming the officer has some privacy interest in the underlying allegations, that interest is "far outweighed" by the public's interest in knowing that a law-enforcement official may have violated departmental policy. The AG cited a line of opinions confirming the strong public interest in records about potentially unlawful conduct by law enforcement.
So the letter must be disclosed in its entirety.
What this means for you
FOIA requesters
If you are looking for records about a police officer's reassignment, suspension, or other adverse employment action and the city responds that the records are exempt as "employee evaluations," check whether the records actually document a disciplinary or evaluative action. If they document a purely administrative move (a reassignment, a transfer, a leave-of-absence pending investigation), they are likely personnel records that must be disclosed.
This opinion gives you ammunition: cite it directly when challenging an exemption claim that misclassifies an administrative reassignment letter as an evaluation. The AG made the line clear.
City attorneys and police department legal counsel
Stop classifying administrative reassignment letters as employee-evaluation records. The AG's view, building on its own long line of opinions (Op. 2023-077, Op. 2014-110, Op. 2007-311), is that records documenting administrative (non-disciplinary) actions are personnel records, not evaluations, regardless of what allegations they recount.
Practical operational change: when an officer is reassigned pending an investigation, the reassignment letter itself is disclosable in full. The internal investigative file is a separate question, governed by different exemption rules. Build that distinction into your records-management practice.
Police chiefs and HR managers
If your reassignment letters are written assuming they will not be disclosed, revise the practice. Write them assuming they will be disclosed and that any allegations they recount will become public the moment a FOIA request is made.
That does not mean omit the basis for the reassignment. Include enough to make the administrative action defensible. But understand that you cannot rely on the FOIA's evaluation-record exemption to keep the letter private.
Police officers and unions
This opinion limits an officer's privacy interest in records that document administrative actions against him related to alleged policy violations. The AG concluded the public's interest in knowing about possible misconduct by an officer outweighs even a "greater than minimal" privacy interest. If your contract or department policy promised that reassignment letters would be confidential, that promise may not survive a FOIA request.
News media
Reassignment letters, transfer letters, and leave-of-absence letters for law-enforcement officers are now clearly disclosable when the underlying basis is an alleged policy violation. Build that into your records-request strategy.
Records custodians generally
The two-step framework: first classify the record (personnel or evaluation, based on whether it documents a disciplinary/evaluative action), then apply the right test (balancing for personnel, four-element for evaluations). Misclassification is the most common error, and this opinion shows the AG will correct it.
Common questions
What is the difference between a personnel record and an employee-evaluation record?
A personnel record is any record about an individual employee that is not an evaluation. An employee-evaluation record is one created by or at the behest of the employer specifically to evaluate the employee's performance on a particular incident. Disciplinary letters typically count as evaluations; administrative or policy-neutral letters typically count as personnel records.
Why does the classification matter?
Different tests apply. Personnel records use a balancing test with a thumb on the scale toward disclosure. Evaluation records are exempt unless four strict conditions are met (suspension or termination, administrative finality, relevance, compelling public interest).
Can a record be both personnel and evaluation?
Generally no, classification is binary. But a single document might contain both types of information, in which case selective redaction may be appropriate.
What happened to the underlying internal investigation file?
The opinion does not address the investigative file directly. Internal investigative records have their own FOIA treatment and are generally protected during the active investigation, with disclosure rules that turn on whether they ever resulted in suspension or termination.
Does this apply to non-law-enforcement employees?
The classification rule (personnel vs. evaluation) applies to all public employees in Arkansas. The "compelling public interest" element of the balancing test is especially strong for law enforcement because of their public-trust role, but the underlying analytical framework is the same for any public employee.
Can the officer's name be redacted?
Generally no. The name of the public employee subject to a personnel-records request is itself disclosable. Identifying details like home address, social security number, and similar genuinely personal information are typically redacted, but employee identity is not.
What if the reassignment was actually a punishment in disguise?
That is a fact-specific question. If the city framed the reassignment as administrative but in substance it was punitive, the analysis might shift. But on the AG's reading of this letter, the action was facially administrative.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i). Authorizes a records custodian, requester, or subject of certain employee-related records to seek an AG opinion on whether the custodian's release decision is consistent with the FOIA.
A.C.A. § 25-19-105(b)(12). Personnel records are open to inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."
A.C.A. § 25-19-105(c)(1). Employee-evaluation or job-performance records may be released only if four elements are met: (1) the employee was suspended or terminated; (2) the action is administratively final; (3) the records formed the basis for the action; and (4) there is a compelling public interest in disclosure.
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Establishes the personnel-records balancing test. Step 1: assess whether the information is of a personal or intimate nature giving rise to a "greater than minimal" privacy interest. Step 2: if yes, balance that interest against the public's interest in disclosure, with a thumb on the scale favoring disclosure.
Long-standing AG opinions on classification. Op. 2023-077 (foundational classification opinion); Op. 2014-110 and Op. 2007-311 (administrative-action letters are personnel records); Op. 2018-023 and Op. 1998-260 (compelling public interest in records about potentially unlawful conduct by public officials, especially law enforcement).
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation records, four-element test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion request procedure)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Ark. Att'y Gen. Op. 2023-069, 2023-077, 2018-023, 2014-110, 2007-311, 1998-260
Source
Original opinion text
Opinion No. 2023-117
December 5, 2023
Richard "Chris" Madison, Esq.
Alexander City Attorney
234 Oaklawn Circle
Little Rock, Arkansas 72206
Dear Mr. Madison:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for 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.
You report that someone has made a FOIA request for, among other things, any "written directive placing" a certain law enforcement officer on "leave or suspension." Your correspondence includes a copy of the relevant letter, which appears to serve two purposes: (1) it notifies the employee that "an internal investigation has been opened" regarding a specific event; and (2) it describes the duties to which the employee is being reassigned. Although it is not entirely clear from the letter, this reassignment appears to be temporary pending the outcome of the internal investigation.
You have reviewed the letter and determined that if it is best classified as a "personnel record," the letter would need to be disclosed. In contrast, you have concluded that if the letter is best classified as an "employee-evaluation record," the letter is exempt from disclosure because the employee "has not been suspended or terminated." Instead, you report, the employee has merely received "notice[] that allegations of wrongdoing have been made and that an investigation is ongoing."
You indicate that, while you have some doubt about how to classify the letter, you believe it is an employee evaluation and cannot be disclosed. You ask me to review these decisions to opine on whether they are consistent with the FOIA.
RESPONSE
In my opinion, the letter is best classified as a personnel record because, although it was created by the employer, it was not created to evaluate the employee. Instead, the letter notifies the employee of an administrative, non-disciplinary action being taken while allegations of misconduct are being investigated. Further, the test for the disclosure of personnel records indicates that the letter should be disclosed in its entirety.
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. For your reference, I have enclosed Opinion No. 2023-077, which explains the law governing the classification of each set of records and the appropriate tests to apply after having classified the records. Rather than repeat that explanation here, I will simply apply it to the letter at issue.
I believe the custodian's decision to withhold the letter from disclosure is inconsistent with the FOIA. The custodian's decision is based on the test for the disclosure of employee-evaluation records. But, in my opinion, that is not the proper test because the letter is not an employee-evaluation record.
The custodian appears to have classified the letter as 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 actions. The letter at issue here memorializes a purely administrative and non-disciplinary decision to reassign the employee pending the outcome of the investigation. If an employer memorializes such an administrative action in a letter and states the grounds for the action, the action is still administrative—not evaluative or disciplinary. This office has long held that letters reflecting these sorts of administrative actions are best classified as personnel records. 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—which is explained in Opinion No. 2023-077—requires the allegations to be redacted. Even assuming the employee has some privacy interest in the grounds for his administrative suspension, 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 law-enforcement official may have violated departmental policy.
Deputy Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General