Can a city release a former police officer's termination letter under Arkansas FOIA when the officer objects?

Plain-English summary

A former Sherwood police officer objected when the city's records custodian decided to release his termination letter in response to an Arkansas Freedom of Information Act request. The officer said the 2021 termination followed an internal investigation and that the letter explained its grounds. The Attorney General concluded that releasing the letter was consistent with FOIA, while noting that he had not reviewed the letter and relied on the information provided to him.

The opinion treats a termination letter that states the reasons for termination as an employee-evaluation record. Four conditions must be met before such a record may be released: a suspension or termination, administrative finality, a record that formed a basis for the decision, and a compelling public interest in disclosure. The Attorney General said each was met here. He described the termination as one that could no longer be administratively reversed or modified and the letter as recounting its reasons.

For the public-interest condition, the opinion says law-enforcement officers hold significant public trust and there is “usually a compelling public interest” in records reflecting violations of office policy. It found that interest compelling for this letter. “Usually” leaves room for a different conclusion on different facts; the opinion does not make disclosure automatic for every officer record.

What this means for you

Records custodians

Classify the particular record and check each of the four conditions. This opinion supports release of the described termination letter, based on the facts supplied to the Attorney General. Its public-interest finding concerns a record reflecting an officer's policy violations and should not replace a review of the record requested.

Officers and records requesters

The officer's objection did not change the Attorney General's conclusion in this case. FOIA allows a records subject, requester, or custodian to seek an Attorney General opinion about a release decision. Here the Attorney General found the custodian's intended release consistent with FOIA despite the objection.

Common questions

Does a termination letter count as an employee-evaluation record?

Under this opinion, yes when it includes the reasons for termination. The Attorney General said this letter met that description based on the account provided to him.

Is the public-interest condition automatically met for police officers?

No. The opinion says there is “usually” a compelling interest in records reflecting violations of office policy by officers, and finds that interest present for this letter.

Did the Attorney General read the letter?

No. A footnote says he had not reviewed it and relied solely on the information supplied to him.

Why did administrative finality matter?

It is one of the four conditions for releasing an employee-evaluation record. The opinion says this termination was final because it could not be administratively reversed or modified.

Currency note

This opinion was issued January 31, 2024, on the described 2021 termination. Check current law and the facts of a particular records request before applying its conclusion.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

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. 1

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

1
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.

Mr. Kenneth Broyles
Opinion No. 2024-021
Page 2

include the reasons for termination. 2 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. 3
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. 4 In addition, the termination letter is relevant as it recounts the reasons for the termination. 5 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. 6 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

2
E.g., Ark. Att’y Gen. Ops. 2023-120, 2014-052, 2013-155.
3
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
4
Ark. Att’y Gen. Ops. 2023-120.
5
This office has opined that a termination letter—even though written contemporaneously with the termination— forms a basis for the termination. Ark. Att’y Gen. Ops. 2023-120, 2006-026, 2005-030. 6 Ark. Att’y Gen. Ops. 2023-120, 2023-071, 2023-013.