Can a city release a former police officer's termination letter under Arkansas FOIA when the officer objects?
Plain-English summary
Kenneth Broyles, a former Sherwood police officer terminated in 2021 after an internal investigation, learned that someone had filed a FOIA request with the City of Sherwood for his termination letter. The City's records custodian decided to release it. Broyles, exercising the right granted to subjects of employee-related records under A.C.A. § 25-19-105(c)(3)(B)(i), asked the AG whether that release was consistent with the FOIA. He objected to release.
The AG ruled the City's decision was consistent with the FOIA. Because the termination letter explained the grounds for termination, it qualifies as an employee-evaluation record under the long-settled rule. All four elements for release of an evaluation record are satisfied:
- Suspension or termination. Broyles was terminated as a Sherwood police officer.
- Administrative finality. The termination occurred in 2021. The administrative review window has long since closed; the termination cannot be administratively reversed or modified.
- Relevance. The termination letter "recounts the reasons for the termination," which Arkansas AG opinions consistently treat as forming a basis for the termination decision.
- Compelling public interest. Sworn law-enforcement officers hold positions of significant public trust. Records reflecting policy violations by such officers carry a compelling public interest in disclosure.
The AG noted he had not seen the actual termination letter, so the analysis is based on Broyles's own description. The AG is also clear that the subject's objection does not, by itself, defeat release. The four-part test is what controls.
What this means for you
Police officers
If you are a sworn officer terminated for cause, expect that your termination letter will become a public record once the administrative review window closes. Arkansas law treats sworn law-enforcement positions as positions of significant public trust where the compelling-interest prong is essentially presumed. This is not new law; this opinion is one of dozens applying the same analytical framework.
Two practical points. First, anything written into a termination letter as the basis for termination is highly likely to be released. Departments draft these letters knowing this. If you receive a termination letter that recounts policy violations or misconduct, treat it as a public-facing document from the moment it is issued.
Second, the subject's objection is not a meaningful barrier under § 25-19-105(c)(3)(B)(i). Your right to seek an AG opinion lets you preserve the issue and (potentially) get an early read on what would happen in court, but the AG opinion is not binding on the City and does not stop release. If you actually want to block disclosure, you have to file in circuit court under § 25-19-107.
Police department administrators
When you draft a termination letter for a sworn officer, write it knowing the letter will become public once the appeal window closes. Be precise about the alleged policy violations and the factual basis. Vague language ("conduct unbecoming") that the public cannot evaluate is not protective; it just makes the department look less rigorous when the records eventually surface.
The administrative-finality requirement gives you a brief window. During the appeal period, the records remain protected. Once the period passes (or the officer's appeal is denied), the records become public.
City records custodians
The four-part test for evaluation-record release is well-settled. When a request comes in for a termination letter for a former officer, your three-step analysis is:
- Is the letter an evaluation record? If it explains the grounds for termination, yes.
- Are all four release elements met? Termination occurred? Administratively final? Letter formed a basis for termination? Compelling public interest? For sworn officers, the fourth prong is essentially automatic.
- Are there any redactions required? Personal contact information under § 25-19-105(b)(13) must be redacted.
Document the finality determination. A request for a 2021 termination letter is easy. A request for a termination that just happened last week may need more careful evaluation of any pending administrative review.
FOIA requesters
If you are seeking termination records for a sworn officer in Arkansas, the path is straightforward once the termination is administratively final. If the agency tells you the records are not yet releasable, ask whether the basis is administrative finality and when finality is expected to attach. Put a calendar reminder for the day after.
Civil rights attorneys
Termination letters that recount policy violations are valuable evidentiary material for police accountability and pattern-and-practice litigation. Arkansas's relatively liberal FOIA framework makes those letters available for officers in your client's department. Pattern your discovery and FOIA strategy around the four-part test rather than against it.
Common questions
Why doesn't the officer's objection block release?
The four-part test is objective. The subject's privacy interest is already weighed in the test (specifically, in the "compelling public interest" prong, which weighs the public's interest against the privacy interest). Once that prong is satisfied, the subject's continued objection does not change the legal analysis. The right to seek an AG opinion is a procedural protection, not a veto.
What if the officer is challenging the termination in court?
The administrative-finality prong is about administrative review, not judicial review. A pending lawsuit (such as a wrongful-termination claim) does not delay the records' availability. Once administrative remedies are exhausted, the four-part test is met.
Could a court block release even though the AG approved it?
In theory, yes. AG opinions are persuasive but not binding. The subject of the records can sue in circuit court for an injunction. Courts have generally been reluctant to enjoin disclosure when the AG and the custodian both support release, especially for sworn officers, but it is not impossible. A challenger would need to identify a specific defect in the release determination.
What about records other than the termination letter?
The opinion only addresses the termination letter. The same officer's underlying internal-affairs investigation file, witness statements, and other records would each require separate classification and analysis. Generally, internal-affairs reports are also evaluation records subject to the same four-part test.
Why is "compelling public interest" so easy to satisfy for officers?
Because of the breadth of authority sworn officers hold, including the use of force, custody, and arrest. Arkansas AG opinions have built up a deep body of precedent treating police disciplinary records as a category in which the public's interest is essentially presumed. Cases involving non-officer public employees often turn more closely on the specific conduct alleged.
Background and statutory framework
A.C.A. § 25-19-105(c)(1). Four-part test for release of employee-evaluation records.
A.C.A. § 25-19-105(c)(3)(B)(i). Authorizes the custodian, requester, or subject of certain employee-related records to seek an AG opinion.
Termination letter classification. AG Ops. 2023-120, 2014-052, 2013-155, 2008-065 establish that termination letters explaining the grounds for termination are evaluation records, even though they are written contemporaneously with the action. AG Ops. 2023-120, 2006-026, 2005-030 hold that the letter "forms a basis" for the termination.
Compelling-interest standard for law enforcement. AG Ops. 2023-120, 2023-071, 2023-013 (along with many earlier opinions) treat sworn officer disciplinary records as a category in which the compelling-interest prong is presumed.
Citations
- A.C.A. § 25-19-105(c)(1) (four-part test for evaluation-record release)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion authority)
- AG Ops. 2023-120, 2014-052, 2013-155 (termination letter as evaluation record)
- AG Ops. 2023-120, 2006-026, 2005-030 (termination letter forms a basis for termination)
- AG Ops. 2023-120, 2023-071, 2023-013, 2008-065 (compelling interest in officer disciplinary records)
Source
Original opinion text
Opinion No. 2024-021
January 31, 2024
Mr. Kenneth Broyles
c/o Mr. Stephen Cobb
City of Sherwood
2199 East Kiehl Avenue
Sherwood, Arkansas 72120
Dear Mr. Broyles:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). The FOIA 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 that someone has sent the City of Sherwood a FOIA request for your termination letter as a police officer with the Sherwood Police Department. The termination occurred in 2021, and it resulted from an internal investigation. The termination letter explains the grounds for the termination. The records custodian intends to release the termination letter, and you object to its release. You ask whether the records custodian's decision is consistent with the FOIA. (I have not reviewed the termination letter at issue, so the factual basis for this opinion is based solely on the information that has been provided to me.)
RESPONSE
In my opinion, even though you object, the custodian's decision to release the termination letter is consistent with the FOIA.
DISCUSSION
For purposes of the FOIA, two distinct groups of documents are normally found in employees' personnel files: "personnel records" and "employee evaluation or job performance records." This office has consistently opined that termination letters are employee-evaluation records when they include the reasons for termination. Employee-evaluation records cannot be released unless all of the following elements have been met:
- Suspension or termination. The employee was suspended or terminated;
- Administrative finality. The suspension or termination is administratively final;
- 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.
In this instance, the termination letter is an employee-evaluation record because it contains the reasons for your termination. Further, all of the elements for release of the termination letter have also been met. You were terminated, and that termination is administratively final because it cannot be administratively reversed or modified. In addition, the termination letter is relevant as it recounts the reasons for the termination. (This office has opined that a termination letter, even though written contemporaneously with the termination, forms a basis for the termination.) Finally, the public has a compelling interest in the disclosure of the termination letter. 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. Thus, the custodian's decision to release the termination letter is consistent with the FOIA.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General