Can a city release police misconduct termination records and bodycam footage when officers have appealed terminations to the city council and a criminal investigation is ongoing?
Plain-English summary
The City of Helena-West Helena received a FOIA request seeking (1) personnel files of all officers terminated in 2024 for an alleged incident of police misconduct, and (2) any bodycam footage related to the incident. The city attorney reported that some of the four terminated officers had appealed their terminations to the city council, which can overrule a termination by a two-thirds vote, and that the bodycam footage was part of an ongoing investigation by the prosecutor in the First Judicial District (with footage forwarded to Arkansas State Police for possible criminal prosecution).
The city attorney did not classify the records or state whether they would be released. Instead, he asked whether the FOIA's ongoing-investigation exception applied to the bodycam and whether the officers' terminations were "final" for FOIA purposes.
The AG's response was constrained:
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The bodycam ongoing-investigation question is outside the AG's review authority. A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the AG to opine only on "personnel or employee records" decisions. The ongoing-investigation exception is at § 25-19-105(b)(6), which the AG cannot review.
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No decision is in front of the AG for the personnel records. The custodian had not classified the records or decided to release. The AG could only outline the relevant law.
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For employee-evaluation records, "administrative finality" requires no chance of reversal or modification. If the city council can still overrule the terminations, the second prong of the four-part test is not met. The records cannot be released yet. Once the council acts (or the appeal period expires without action), the test can be reapplied.
The opinion also noted: an employee can waive the right to review (which makes the discipline immediately final), and if an employee did not request review and the review period expired, the discipline becomes final.
What this means for you
City attorneys and records custodians
When officer terminations are pending review by a city council or other appeals body, do not release related employee-evaluation records (interview notes, internal investigation files, termination letters) until the appeals process is complete. The "administrative finality" prong of the four-part test in A.C.A. § 25-19-105(c)(1) explicitly bars release while a reversal or modification remains possible.
If you have multiple terminated officers and only some have appealed, the analysis is officer-by-officer. The records of officers who waived review or whose review period has expired are at a different stage than the records of officers actively pursuing review.
For the bodycam footage, the analysis runs through the ongoing-investigation exception at § 25-19-105(b)(6), which the AG cannot review. You'll need to consult with the prosecuting attorney and consider whether the investigation truly remains "ongoing" (whether charges have been filed, whether the investigation is dormant or active, etc.). Bodycam footage in police misconduct cases often becomes more releasable over time as investigations conclude.
Police chiefs and city council members
Where city policy gives the council authority to overrule terminations by supermajority, the practical effect is that all related FOIA requests get held while the appeals process plays out. This can extend release timelines significantly. Consider how your termination procedures interact with public-records expectations, and how council decisions are documented for FOIA purposes once finality attaches.
FOIA requesters and journalists
If you receive a FOIA response holding records on grounds the discipline is not yet "administratively final," ask the agency: (1) which officers have appealed, (2) when the council will hear the appeals, (3) whether any officers have waived review or let the review period expire. The records of those officers should be releasable at that point even if others remain pending.
For bodycam footage, the ongoing-investigation defense is fact-intensive. Generally, the agency must show the investigation is actually active and that disclosure would interfere with it. Push for specifics. If the case has been forwarded to a different prosecutorial agency (here, Arkansas State Police), ask which agency now has the active investigation and what stage they are at.
Criminal defense attorneys
If your client was charged in connection with police interaction in a misconduct case, watch for finality of the officers' disciplinary proceedings. Once finality attaches, the disciplinary records become subject to FOIA's four-part test (with public interest in police misconduct typically meeting the compelling-interest prong). Those records can become Brady or Giglio material in the criminal case.
Common questions
What's the four-part test for employee-evaluation records under FOIA?
Records can be released only if all four are met: (1) the employee was suspended or terminated, (2) the discipline is administratively final (no pending reversal possible), (3) the records formed a basis for the discipline, and (4) the public has a compelling interest in disclosure. The AG noted the second prong is the bottleneck here.
Why can't the AG opine on the bodycam ongoing-investigation question?
A.C.A. § 25-19-105(c)(3)(B)(i) gives the AG opinion authority only over personnel and employee-evaluation record decisions. Other FOIA exceptions (like (b)(6) ongoing investigations, attorney-client privilege, etc.) are reviewable only in court. This is a deliberate legislative limit.
What if an officer doesn't appeal a termination?
Then the discipline is administratively final once the review period expires. Records can be released subject to the other three prongs of the test. For police officers (positions of public trust), the compelling-interest prong is usually met when misconduct is alleged.
What if the city council reinstates the officer?
The first prong of the test (suspension or termination) fails. Records of the rejected termination are not releasable as employee-evaluation records. (They might be releasable on other grounds, like the council deliberation as a public meeting record, but not under § 25-19-105(c)(1).)
Why isn't the AG telling the city what to do?
Because the AG can only review actual decisions, not hypothetical ones. The city attorney here had not classified the records or decided whether to release. The AG provided the legal framework and instructed the custodian to make the classification decision and apply the appropriate test.
Does this affect bodycam policies more broadly?
Indirectly. Helena-West Helena's situation is one where bodycam footage has become evidence in a potential criminal investigation. The general FOIA framework treats bodycam as public records subject to standard exceptions. The ongoing-investigation exception at (b)(6) is the typical hook for delaying release of footage that is part of a live investigation.
Background and statutory framework
FOIA exceptions for personnel and evaluation records. § 25-19-105(b)(12) (personnel records, Young v. Rice balancing) and § 25-19-105(c)(1) (employee evaluations, four-part test).
Ongoing-investigation exception. § 25-19-105(b)(6) protects records related to ongoing criminal investigations from disclosure where release would interfere with the investigation.
AG opinion authority. § 25-19-105(c)(3)(B)(i) is the statutory basis for AG opinions on personnel and evaluation record decisions.
Administrative finality. Watkins et al., The Arkansas Freedom of Information Act 238-39 (6th ed. 2017), and AG Op. 2023-071 establish that finality requires no chance of reversal or modification. If an employee handbook grants a review period and the employee requests review, finality awaits review completion. Waiver or expiration of the review period creates finality.
Personnel records framework. Young v. Rice, 308 Ark. 593 (1992), provides the balancing test. Stilley v. McBride, 332 Ark. 306 (1998), puts the burden on the person resisting disclosure.
Employee-evaluation framework. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the three-element definition of an employee-evaluation record.
Citations
- A.C.A. § 25-19-105(b)(6) (ongoing investigation exception)
- A.C.A. § 25-19-105(b)(12) (personnel privacy)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG review authority)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- AG Op. 2023-071 (administrative finality requirement)
Source
Original opinion text
Opinion No. 2024-029
February 13, 2024
Mr. Andre K. Valley, City Attorney
City of Helena-West Helena
Post Office Box 248
Helena, Arkansas 72342
Dear Mr. Valley:
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). 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 report that the City of Helena-West Helena received a FOIA request seeking (1) “personnel
files of all individuals who have been terminated in 2024 for a role in an alleged incident of police
misconduct” and (2) “any bodycam footage related to the incident in question.” You further report
that “some” of the four terminated officers are seeking review of their termination by the city
council, who can overrule a termination by a two-thirds vote. Finally, you report that the bodycam
footage is involved part of an ongoing investigation by the prosecutor in the First Judicial District
and that the bodycam footage has been forwarded to the Arkansas State Police for possible
prosecution of the officers.
You do not state how you have classified these records or whether you believe they are subject to
disclosure. Instead, you ask whether the ongoing-investigation exception prevents the release of
the bodycam footage. You also ask whether the officers’ terminations are final.
RESPONSE
My statutory duty is to state whether the custodian’s decision regarding the release of “personnel
or employee records” is consistent with the FOIA. As such, I must respectfully decline to opine
on whether A.C.A. § 25-19-105(b)(6), the ongoing-investigation exception, prevents the release
of the bodycam footage. And because your request does not specify how you have classified the
records or whether you have determined that they are subject to disclosure, there is no decision for
me to review. This opinion is therefore limited to an outline of the relevant law. Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 2
DISCUSSION
The FOIA contains two exemptions for two groups of documents normally found in employees’
personnel files.1 For purposes of the FOIA, these items can usually be divided into two mutually
exclusive groups: “personnel records”2 or “employee evaluation or job performance records.”3
The test for whether these two types of documents may be released differs significantly. When
custodians assess whether either of these exceptions applies to a particular record, they must first
decide whether the record meets the definition of the relevant exception and then apply the
appropriate test to determine whether the FOIA requires that record be disclosed.
1. Personnel records. While the FOIA does not define the term “personnel records,” this office
has consistently opined that “personnel records” are all records other than “employee evaluation
or job-performance records” that pertain to individual employees.4 Whether a particular record
meets this definition is a question of fact that requires one to review the record itself.
A personnel record is open to public inspection and copying except “to the extent that disclosure
would constitute a clearly unwarranted invasion of personal privacy.”5
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.6 The balancing test, which takes place with the scale already
tipped in favor of disclosure,7 has two steps. Under the first step, the custodian must assess whether
1 This office and the leading commentators on the FOIA have observed that personnel files usually include:
employment applications; school transcripts; payroll-related documents, such as information about reclassifications,
promotions, or demotions; transfer records; health and life insurance forms; performance evaluations;
recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training
or education; and legal documents, such as subpoenas. E.g., Ark. Op. Att’y Gen. 97-368; John J. Watkins, et al., THE
ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (Arkansas Law Press, 6th ed., 2017).
2 A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made
open to the public under the provisions of this chapter….[p]ersonnel records to the extent that disclosure would
constitute a clearly unwarranted invasion of personal privacy.”
3 A.C.A. § 25-19-105(c)(1): “[A]ll employee evaluation or job performance records, including preliminary notes and
other materials, shall be open to public inspection only upon final administrative resolution of any suspension or
termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if
there is a compelling public interest in their disclosure.”
4 E.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
5 Ark. Code Ann. § 25-19-105(b)(12).
6 308 Ark. 593, 826 S.W.2d 252 (1992).
7 Watkins et al. supra, at 208. Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 3
the information contained in the requested document is of a personal or intimate nature such that
it gives rise to a greater than minimal privacy interest.8 If it is only minimal, then the privacy
interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the
record must be disclosed. But if the privacy interest is more than merely minimal, the custodian
moves to the second step when he or she must determine whether the privacy interest is outweighed
by the public’s interest in disclosure.9
Because the exceptions must be narrowly construed, the person resisting disclosure bears the
burden of showing that, under the circumstances, his privacy interests outweigh the public’s
interests.10 The fact that the subject of the records may consider release of the records an
unwarranted invasion of personal privacy is irrelevant to the analysis because the test is
objective.11
2. Employee-evaluation records. 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.12 This exception includes records generated while investigating
allegations of employee misconduct that detail incidents that gave rise to an allegation of
misconduct.13
If a document qualifies as an employee-evaluation record, the document cannot be released unless
all the following elements have been met:
1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination
proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to
suspend or terminate the employee (i.e., relevance); and
8 Young, 308 Ark. at 598, 826 S.W.2d at 255.
9 Id., 826 S.W.2d at 255.
10 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
11 E.g., Ops. Att’y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins et al., supra, at 207.
12 Thomas v. Hall, 2012 Ark. 66, 6–9, 399 S.W.3d 387, 391–93; see also Davis v. Van Buren School Dist., 2019 Ark.
App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of
employee-evaluation records developed by the Attorney General’s office); e.g., Ark. Att’y Gen. Ops. 2015-057,
2009-067, 2006-038, 2003-073, 95-351, and 93-055.
13 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations). Mr. Andre K. Valley
Helena-West Helena City Attorney
Opinion No. 2024-029
Page 4
4. The public has a compelling interest in the disclosure of the records in question (i.e.,
compelling interest).14
As for the second prong, which you have asked about, a suspension or termination has achieved
final administrative resolution when there is no chance that the suspension or termination can be
reversed or modified.15 If an employee handbook grants a review period for the adverse
employment action and the employee requests a review, then the suspension or termination is not
administratively final until the review is completed.16 But if the employee does not request a
review and the review period has expired, then the adverse employment action is administratively
final under this test.17 Similarly, if an employee formally waives his right to a review, then the
suspension or termination is administratively final.18
3. Application. My authority under the FOIA is to review the custodian’s decision. But it is not
clear to me how the custodian has classified the records at issue here and whether the custodian
intends to disclose the records. Therefore, at this time I am unable to determine whether that
decision is consistent with the FOIA. As the records custodian, you must (1) classify the requested
records and (2) apply the appropriate test for disclosure.
Regarding the finality of the officers’ terminations, the information you have provided suggests
that at least one officer’s termination is not yet final, given the upcoming review of that decision
by the city council. But, as explained above, this fact is only relevant in the context of those records
classified as employee-evaluation records, not personnel records.
Finally, given the limited scope of my review, I cannot opine on whether the bodycam footage
should be withheld as part of an ongoing criminal investigation.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
14 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
15 Ark. Att’y Gen. Op. 2023-071 (opining that “[t]his element prevents the release of employee evaluations that reflect
suspension or termination while there is still some chance the adverse employment action could be administratively
reversed or modified”); Watkins et al., supra, at 238–39.
16 Watkins et al., supra, at 238–39.
17 Id.
18 Id.