Can a Fayetteville city attorney release a former police officer's personnel action sheet and termination letter under FOIA when the officer objects to release?
Plain-English summary
Fayetteville Senior Assistant City Attorney Blake Pennington received a FOIA request for records concerning the termination of a former Fayetteville police officer. Two specific documents were responsive: a one-page personnel action sheet (with a redaction of the employee number) and a two-page termination letter from the Deputy Chief of Police. Pennington concluded both should be released. The former officer objected because "he does not know the requestor and did not want the requester having the termination letter." Pennington asked the AG to confirm.
The AG agreed. The release is consistent with the FOIA, and the officer's objection cannot block disclosure.
The analysis applies the standard two-track Arkansas FOIA framework for employee records:
Track 1: The personnel action sheet (personnel record). The personnel action sheet documents an employee action but does not contain detailed performance evaluation. The AG concluded it is best classified as a personnel record. Under A.C.A. § 25-19-105(b)(12), personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." Applying the Young v. Rice balancing test (privacy interest vs. public interest, with a thumb on the scale toward disclosure), the officer's privacy interest is far outweighed by the public's interest in knowing about a sworn officer's potential misconduct.
Track 2: The termination letter (employee-evaluation record). The termination letter recounts the specific reasons for the termination, which makes it an employee-evaluation record under long-standing AG precedent (Op. 2014-052, Op. 2013-155, Op. 2001-276). Employee-evaluation records may be released only if all four conditions in A.C.A. § 25-19-105(c)(1) are met:
- Suspension or termination. The letter terminates the officer.
- Administrative finality. Pennington confirmed the termination is administratively final and not subject to further administrative review.
- Relevance. The termination letter formed a basis for the termination, since termination letters that detail the grounds for the action have long been treated as forming a basis for it.
- Compelling public interest. Law-enforcement records reflecting potential policy violations carry a strong compelling-interest finding under prior AG opinions.
All four are met, so release of the termination letter is consistent with FOIA.
Track 3: The objection from the former officer. The AG used a footnote (the only footnote with substantive analysis here) to address this directly: under FOIA, the requester's identity and motives are generally irrelevant when determining whether public records must be disclosed. So a third-party subject of the records cannot use his own preferences about the requester (or about disclosure generally) to block release.
This opinion sits alongside Opinion No. 2023-117 (the Alexander police-officer reassignment letter) as a clear pair: 2023-117 addresses an administrative reassignment (personnel record, must release); 2023-120 addresses a termination (evaluation record, four-element test met, must release).
What this means for you
FOIA requesters
A subject's objection to disclosure of his own records under FOIA does not block release. The custodian's job is to apply the legal test, not to honor private preferences. If a custodian tells you they are withholding records because the subject objected, push back: the AG has consistently held that a third-party objection alone is not a basis for withholding.
For police-officer termination records specifically, the AG's pattern is clear. The records will be disclosable under the four-element test if the officer was actually terminated, the action is final, the records explain the grounds, and there is a compelling public interest (which is almost automatic for sworn law enforcement).
City attorneys and records custodians
The two-track framework continues to be the right starting point for any employee-records FOIA request:
- Classify each record as personnel or evaluation based on whether it documents a disciplinary or evaluative action.
- Apply the right test (balancing for personnel, four-element for evaluations).
- Document the classification reasoning so it survives an AG-opinion request or court challenge.
When an employee or former employee objects to release, do not let the objection drive your legal analysis. The objection is not a basis for withholding under Arkansas FOIA.
Police officers facing termination
If you are about to be terminated by an Arkansas police department, your termination letter will be subject to FOIA disclosure once it becomes administratively final, regardless of your preferences. That is not a quirk of Fayetteville's practice; it is the statewide rule under § 25-19-105(c)(1). Plan accordingly.
Police chiefs and personnel directors
Write termination letters knowing they will be public. Provide the necessary detail to support the action but understand the document will be quoted in news coverage and litigation.
The administrative-finality element is operationally important. If your department has internal appeals, grievance procedures, or civil-service review pending, the termination is not yet "administratively final" and the letter is not yet disclosable under the four-element test. Once those processes complete (or expire), the letter becomes disclosable.
News media
Termination letters for sworn law-enforcement officers are reliably disclosable when the underlying termination is administratively final. The "compelling public interest" element is essentially presumed for police misconduct cases under existing AG opinions (Op. 2023-071, 2023-013, 2014-129, 2006-026).
Civil rights attorneys
The AG's footnote on the irrelevance of requester identity and motives is useful when defending FOIA requests that local officials want to dismiss as harassment, fishing expeditions, or politically motivated. Under FOIA doctrine, those characterizations are not legal grounds for withholding.
Common questions
Why doesn't the officer's objection block disclosure?
Because Arkansas FOIA centers on whether the public has a right to the record, not on what the subject prefers. The AG put it directly: the requester's identity and motives are generally irrelevant. A subject's wish for privacy is one input to the personnel-records balancing test, but it is not a veto.
What's the difference between the personnel action sheet and the termination letter?
The personnel action sheet is a generic HR form documenting employment status changes. It does not detail performance or specific incidents. The termination letter explains why the officer was terminated and is therefore an evaluation document. The two records have different statutory tests but in this case both are disclosable.
What does "administratively final" mean?
The termination cannot be reversed or modified through any internal administrative process. If a city policy provides for an appeal to a personnel board, civil service commission, or arbitrator, the termination is not final until that process is complete or the time to invoke it has run.
Can the requester get the entire personnel file?
The AG opinion addresses two specific documents. A request for "the entire personnel file" would require the custodian to apply the same two-track classification to each document in the file: personnel records get the balancing test, evaluation records get the four-element test.
What if the officer was suspended rather than terminated?
A.C.A. § 25-19-105(c)(1) covers both suspension and termination. The same four-element test applies if the officer was suspended (rather than terminated), the suspension is administratively final, and the records formed the basis for the suspension and there is a compelling public interest.
Does the answer change if the records request comes from the officer's lawyer or a litigation opponent?
No. The AG's footnote is explicit that requester identity and motives are generally irrelevant. A request from opposing counsel in a civil suit gets the same treatment as a request from a journalist or a member of the public.
What about the employee number that was redacted?
The custodian redacted the employee number. The AG did not specifically address that redaction, presumably because employee numbers are typically considered an internal identifier without much public value, and a small redaction of that kind is consistent with the personnel-records balancing test.
Background and statutory framework
A.C.A. § 25-19-105(c)(3)(B)(i). Authorizes the 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 FOIA.
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 or job-performance records may be released only if four elements are met: (1) suspension or termination; (2) administrative finality; (3) the records formed a basis for the action; (4) compelling public interest.
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Two-step balancing test for personnel records: (1) is the privacy interest greater than minimal? (2) if yes, does the public's interest outweigh it? The thumb is on the scale toward disclosure.
AG opinions on classification of termination letters. Op. 2014-052, 2013-155, 2001-276 (termination letters detailing reasons are evaluation records). Op. 2006-026, 2005-030 n.3 (a contemporaneous termination letter forms a basis for the termination).
AG opinions on requester identity and motives. Op. 2023-051, 2014-094, 2011-095, 2006-118 (consistently holding that requester identity and motives are generally irrelevant under FOIA).
AG opinions on compelling interest in police records. Op. 2023-071, 2023-013, 2014-129, 2006-026 (compelling public interest in records reflecting law-enforcement misconduct).
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- 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. 2023-013, 2023-051, 2023-071, 2023-117, 2018-023, 2014-052, 2014-094, 2014-129, 2013-155, 2011-095, 2006-026, 2006-118, 2005-030, 2001-276, 1998-260
Source
Original opinion text
Opinion No. 2023-120
December 18, 2023
Blake Pennington
Senior Assistant City Attorney
113 W. Mountain Street, Suite 302
Fayetteville, Arkansas 72701
Dear Mr. Pennington:
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 indicate that someone has submitted a FOIA request for records concerning the termination of a former police officer who was employed by the City of Fayetteville Police Department.
You have provided for my review two public records you believe are responsive to the request:
- Personnel action sheet. You believe a one-page "Personnel Action" sheet is a personnel record that must be released with a redaction made to an employee number.
- Termination letter. You believe a two-page termination letter from the Deputy Chief of Police to the former police officer is an employee-evaluation record that must be released because the (1) employee was terminated; (2) the termination is administratively final; (3) the termination letter formed the basis for the decision to terminate the employee; and (4) the public has a compelling interest in the letter's disclosure.
The former police officer in question objects to your decision to release the personnel action sheet and the termination letter because "he does not know the requestor and did not want the requester having the termination letter." (The former police officer's objection itself is not a sufficient basis for the custodian to withhold the records from disclosure. This office has consistently opined that, under the FOIA, the requester's intent and motives are generally irrelevant when determining whether public records must be disclosed.)
You ask whether your decision to disclose these records is consistent with the FOIA.
RESPONSE
In my opinion, your decisions are consistent with the FOIA, and the former officer's objections are not grounds to withhold the records from disclosure.
DISCUSSION
For purposes of the FOIA, two distinct groups of records are normally found in employees' personnel files: "personnel records" or "employee evaluation or job performance records." These two types of records' definitions and tests for disclosure differ significantly.
- The personnel action sheet. In my opinion, your decision to classify the personnel action sheet as a "personnel record" is consistent with the FOIA. Public records are "personnel records" when (1) they pertain to an individual employee, as this personnel action sheet letter clearly does; and (2) they are not an employee evaluation or job performance record—created by or at the behest of the employer to evaluate the employee. This office has consistently concluded that any records created at the behest of the employer and that detail the performance or lack of performance of the employee in question with regard to a specific incident or incidents are properly classified as employee evaluation or job performance records instead of personnel records. Although the personnel action sheet appears to have been created by the employer here, the record does not provide any details or specifics concerning the performance or lack of performance of the former police officer with regard to any specific incident. So the personnel action sheet here is best classified as a "personnel record."
Personnel records are 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 record is of a personal or intimate nature such that it gives rise to a greater than minimal 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 minimal privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. Even if a record, when considered as a whole, meets the test for disclosure, it may contain certain pieces of information that must be redacted before disclosure.
Even assuming the former police officer has some privacy interest in the personnel action sheet, in my opinion, that interest is far outweighed by the combination of the "thumb on the scale favoring disclosure" and the public's interest in knowing allegations that a police officer in a position of public trust may have abused that trust while on-duty. Therefore, your decision that the personnel action sheet meets the test for release is consistent with the FOIA.
- The termination letter. This office has consistently opined that letters of termination are employee-evaluation records if they contain the reasons for the termination. Because the termination letter here recounts the specific reasons for the termination, the letter qualifies as an employee-evaluation record. But employee-evaluation records 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.
Here, all four elements are met. First, the letter indicates that the former police officer was terminated. Second, you state that the termination is administratively final and is, therefore, incapable of any administrative reversal or modification. Third, the records are relevant to the termination because they detail grounds for the termination. Fourth, 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 vested 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, your decision to disclose the two-page termination letter is consistent with the FOIA.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General