Can a county release an internal-investigation report and termination form for a fired county employee under Arkansas FOIA?
Plain-English summary
Sebastian County received a FOIA request on June 22, 2024 for employment records about a recently terminated county employee. The records custodian (Captain Pevehouse with the Sheriff's Office) had decided to release two records to the requester: an internal-investigation report and a termination form. He asked the AG whether that decision was consistent with FOIA.
The AG's analysis runs through Arkansas's standard FOIA classification framework for employment records. There are two relevant categories: "personnel records" (governed by § 25-19-105(b)(12) and the Young v. Rice balancing test) and "employee evaluation or job performance records" (governed by § 25-19-105(c)(1) and the four-part release test).
Classification. Both records are evaluation records. The internal-investigation report was created at the employer's behest to evaluate the employee's job performance, which is the classic evaluation-record fact pattern. The termination form is also an evaluation record because it recounts the grounds for the adverse-employment action. Arkansas AG opinions have long held that termination letters and forms that explain the reasons for termination are evaluation records, even though the form is generated contemporaneously with the action.
The four-part test for release of evaluation records. Under A.C.A. § 25-19-105(c)(1), evaluation records are not releasable unless all four elements are met:
- The employee was suspended or terminated.
- The suspension or termination is administratively final and cannot be reversed or modified administratively.
- The records formed a basis for the decision to suspend or terminate.
- The public has a compelling interest in disclosure.
The custodian's submission satisfies elements 1 (terminated), 3 (the records formed the basis), and 4 (compelling public interest, because law-enforcement officers hold a position of significant public trust). The AG could not confirm element 2 (administrative finality) from the submission. If the termination is final, both records may be released. If it is not yet final, neither may be released.
Redaction requirement. Even if release is authorized, A.C.A. § 25-19-105(b)(13) protects nonelected public employees' personal contact information, including home or mobile phone numbers and home addresses. That information must be redacted from the internal-investigation report before release.
The opinion does not address whether the employee was a sworn deputy or a civilian employee, but the AG specifically applied the law-enforcement-officer compelling-interest analysis. That fact is consistent with the employee being a sworn officer.
What this means for you
County records custodians
Three takeaways for your day-to-day FOIA practice:
First, when an employee is terminated, your release decision turns on administrative finality. If the employee has a pending grievance, civil service appeal, arbitration, or other administrative review that could reverse the termination, the records are not yet releasable. Once those administrative remedies are exhausted or the time to invoke them has passed, the termination is administratively final and the four-part test is met. Document your finality determination in the file. Custodians get sued over close calls.
Second, redact personal contact information before release every time. § 25-19-105(b)(13) is a categorical protection, not a balancing test. Home address, home phone number, mobile phone number, those are not releasable for nonelected public employees regardless of how compelling the public's interest is. The same provision protects emergency contact, social security numbers, marital status, dates of birth, payroll deduction information, and similar items. A clean redaction protocol prevents inadvertent disclosure.
Third, do not skip the classification step. The AG opinion treats both records as evaluation records, but a termination "form" with no narrative could be a personnel record (as one court has suggested in dicta). When in doubt about classification, the four-part test for evaluation records is more protective than the Young balancing test for personnel records. If you can satisfy the four-part test, you have also satisfied Young.
Law enforcement administrators
The AG's analysis treats sheriff's deputies and similarly-situated law-enforcement employees as holding positions of public trust where the compelling-interest prong is essentially presumed. Termination records, internal-affairs investigations, and policy-violation findings will typically be releasable once administrative finality attaches. Plan internal communications with that backdrop. Anything written into a termination memorandum is likely to be public.
The administrative-finality requirement gives you a meaningful window. During the appeal period, the records remain protected. If your office's discipline policy includes a 14-day appeal window, you have at least 14 days from the date of the action before release becomes mandatory.
FOIA requesters
If you are seeking law-enforcement disciplinary records and the agency tells you the records are not yet releasable, ask whether the basis is administrative finality. If yes, ask when that finality attached or is expected to attach, and put a calendar reminder to follow up. The records become releasable once finality attaches, and a follow-up request after that date should be honored.
Public employees facing discipline
If you are facing termination from a position of public trust (law enforcement, school administration, regulatory positions), the records of the termination process will likely become public once your termination is administratively final. The four-part test is rarely a meaningful barrier in those circumstances. Your privacy interest in the termination grounds does not outweigh the public's compelling interest. Plan accordingly with counsel.
Common questions
What does "administratively final" mean?
The termination cannot be reversed or modified by any administrative process. If you have a pending civil service appeal, internal grievance, or arbitration that could reinstate you, the termination is not yet final. Once those processes are exhausted or the time to use them has passed, finality attaches.
What if the employee resigned instead of being terminated?
If the resignation was offered to avoid certain termination, Arkansas's constructive-termination doctrine (developed in AG opinions) may treat it as a termination for FOIA classification purposes. If the resignation was voluntary and not in the face of imminent termination, the records may be classified differently.
What about the internal-investigation report itself? Can the agency redact more than just contact information?
Possibly. § 25-19-105(b)(12) imposes redaction obligations for personal contact information, but other parts of an investigation report may include third-party witness statements that are themselves personnel records about other employees. Each such category needs its own analysis. The opinion does not reach those subsidiary questions because the custodian's submission only covered the requested records about the terminated employee.
Can the requester challenge a redaction?
Yes. A requester can file a FOIA action in circuit court under A.C.A. § 25-19-107 to challenge any denial or redaction. The court reviews the records in camera if needed.
Why is the public's interest "compelling" for law enforcement?
Because peace officers carry significant authority including the use of force. Arkansas AG opinions have consistently treated police and deputy disciplinary records as records the public has a compelling interest in seeing. The compelling-interest prong is rarely defeated for sworn officers.
Background and statutory framework
A.C.A. § 25-19-105(b)(12). The personnel-records exception. Personnel records are released except where disclosure would constitute a "clearly unwarranted invasion of personal privacy." Young v. Rice supplies the two-step balancing test with a "thumb on the scale" for disclosure.
A.C.A. § 25-19-105(c)(1). The employee-evaluation-records exception. Four-part test: termination, finality, relevance to the termination decision, and compelling public interest.
A.C.A. § 25-19-105(b)(13). Categorical redaction of nonelected public-employee personal contact information.
A.C.A. § 25-19-105(c)(3)(B)(i). Authorizes the custodian, requester, or subject of the records to seek an AG opinion on the custodian's release decision.
Thomas v. Hall, 2012 Ark. 66. The Supreme Court adopted the AG's three-element test for evaluation-record classification: created by/at the behest of the employer, to evaluate the employee, detailing performance.
Davis v. Van Buren School Dist., 2019 Ark. App. 466. Court of appeals applied the Thomas v. Hall framework.
Citations
- A.C.A. § 25-19-105(b)(12) (personnel records, Young balancing)
- A.C.A. § 25-19-105(b)(13) (personal contact information redaction)
- A.C.A. § 25-19-105(c)(1) (four-part test for evaluation records)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion authority)
- 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
- AG Opinions on termination letters as evaluation records: 2023-077, 2023-069, 2023-120, 2006-026, 2005-030
- AG Opinions on law-enforcement compelling interest: 2023-120, 2023-071, 2023-013, 2014-129, 2006-026
Source
Original opinion text
Opinion No. 2024-018
January 29, 2024
Captain Phillip Pevehouse
Sebastian County Sheriff's Office
800 South A Street
Fort Smith, Arkansas 72901
Dear Captain Pevehouse:
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.
You indicate that on June 22, 2024, Sebastian County received a FOIA request for certain employment records pertaining to a former county employee who was recently terminated. You have identified the records you believe are responsive to this request, and you have provided two of these records for my review: (1) an internal-investigation report and (2) a termination form.
You do not say how you have classified either of these documents or whether you intend to make any redactions. Instead, you simply state that your "decision is to release the records," and you ask me to review this decision.
RESPONSE
In my opinion, the propriety of your decision to release the two records at issue, which are properly classified as employee-evaluation records, depends on whether the termination is administratively final. If it is final, the conditions necessary for release of the records have been met, though certain information must first be redacted from the internal-investigation report before it can be released. If the termination is not yet final, the records may not be released.
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, both of the records you have forwarded to me for review constitute employee-evaluation records. The internal-investigation report was created by or at the behest of Sebastian County Sheriff's Office to evaluate the employee, and it details the employee's performance or lack of performance on the job. While the termination form was not created to evaluate the employee, this office has long concluded that when a suspension or termination letter recounts the grounds for the adverse-employment action, as this termination form does, it qualifies as an employee evaluation.
The next question is whether all the elements necessary for the release of employee-evaluation records have been met. Your correspondence suggests that at least three of the four elements have been met: (1) the employee was terminated; (2) the records formed a basis for the decision to terminate the employee; and (3) the public has a compelling public interest in the disclosure of the records because, as this office has consistently opined, law-enforcement officers are vested with significant public trust, so there is usually a compelling public interest in records, such as these, that reflect policy violations. I have no information about whether the employee's termination is administratively final and is, therefore, incapable of any administrative reversal or modification. If the termination is administratively final, both of the documents are subject to disclosure.
There is, however, certain protected information on the internal-investigation report that must be redacted before that record can be released. Under A.C.A. § 25-19-105(b)(13), the personal-contact information of certain nonelected government employees, including "home or mobile telephone numbers…and home addresses," are not open to the public under the FOIA. This personal-contact information of the former employee must be redacted from the report before it can be released.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General