When can an Arkansas city release records about a police officer's termination, including the termination letter, written reprimands, and internal affairs files?

Plain-English summary

Alexander's city attorney asked the Arkansas Attorney General to review release decisions after a FOIA request for police termination and investigation records. The supplied materials included a termination letter and two written reprimands. The Attorney General applied the employee-evaluation-record test to each. He could not decide how to treat the internal-affairs files because they were not provided for review.

The termination letter could not be released while the officer's grievance remained pending; the termination was not administratively final. A December 2023 reprimand went beyond a warning and likely qualified as a suspension, but the Attorney General lacked facts about whether that suspension was administratively final. He said release depended on that missing fact. A second reprimand did not satisfy the conditions for release. The result turned on the contents and disciplinary effect of each document.

The opinion cites Thomas v. Hall for the Arkansas Supreme Court's adoption of the Attorney General's definition of employee-evaluation records. It does not attribute a separate label-versus-effect holding to that court. The Attorney General's own analysis looks past the “written reprimand” label when assessing the December letter.

What this means for you

City records custodians

Review each record separately. For a document classified as an employee-evaluation record, check suspension or termination, administrative finality, relevance to the decision, and compelling public interest. The pending grievance resolved the termination-letter question here, while missing finality facts prevented a decision on the December reprimand.

Officers and records requesters

A reprimand's title alone does not answer whether it meets the release conditions. The Attorney General said one letter likely amounted to a suspension despite its title, but could not determine finality. He also could not assess internal-affairs documents the city did not send him.

Common questions

Why was the termination letter withheld?

The officer's grievance was still pending, so the termination was not administratively final under the employee-evaluation release test.

Was the December written reprimand releasable?

The Attorney General said it likely qualified as a suspension, but he did not know whether that suspension was final. He said release depended on that fact.

Did the Arkansas Supreme Court rule that document titles never matter?

This opinion cites Thomas v. Hall for adopting the definition of employee-evaluation records. The label-versus-effect analysis of the reprimand is the Attorney General's application here, not a holding the opinion attributes to the court.

What did the Attorney General decide about the internal-affairs files?

He could not conclusively classify or review them because the city had not provided those records.

Currency note

This March 4, 2024 opinion rests on the documents and grievance status then presented. A later final disciplinary result may change the release analysis.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2024-041

March 4, 2024

Richard “Chris” Madison
Alexander City Attorney
234 Oaklawn Circle
Little Rock, Arkansas 72206

Dear Mr. Madison:

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 Alexander Police Department. Specifically, the requester seeks the “termination notice” and the “complete internal investigation file” regarding a DWI arrest of the former officer.

Having reviewed the termination letter, you have determined that it should not be disclosed because it “describes the basis for the termination” and “there is no final administrative decision regarding the termination.” Specifically, you report that the former “employee has filed a proper grievance through City Personnel policy and that grievance is ongoing” and “should be completed in the coming week or two.”

You have provided for my review a copy of what you have labeled as a “termination letter,” which contains three pages: (1) a document dated February 1, 2024 and entitled, “Letter of Termination”; (2) a document dated in January and entitled “Letter of Disciplinary Action: Written Reprimand” concerning the failure to meet conditions of probation; and (3) a document dated December 4, 2023 and entitled “Letter of Disciplinary Action: Written Reprimand” concerning a “DWI and refusal to Submit to Chemical Test.” Because only one of these documents appears to be a termination letter, I will review each document separately.

323 CENTER STREET, SU ITE 200
LITTLE ROCK, ARKANSAS 72201

Mr. Richard “Chris” Madison
Alexander City Attorney
Opinion No. 2024-041
Page 2

You have also reviewed what you have deemed “internal affairs investigation files” and determined that those records should be disclosed under the FOIA because the investigation “resulted in the demotion and probationary terms placed on the employee” and the investigation “is a completed matter.” But you have not provided these documents for my review.

As the records custodian, you ask whether your decision to withhold the termination letter and to disclose the internal investigation records are constituent with the FOIA.

RESPONSE

The termination letter and attached two written reprimands are best classified as employee- evaluation records. The termination letter and the January written reprimand cannot be disclosed because, based on the facts you have provided, the termination is not administratively final and the January reprimand does not indicate the employee was suspended or terminated. But I am missing important information concerning the finality of the disciplinary action of the December 2023 written reprimand and any of the records considered “internal affairs investigation files” that you have determined should be disclosed. Therefore, I cannot determine whether the December 2023 written reprimand or the “internal affairs investigation files” should be disclosed under the FOIA.

DISCUSSION

Since the custodian’s decision is restricted to employee-evaluation records, I will restrict my analysis to that category of public records. Although the FOIA itself does not define the phrase “employee evaluation” record, the Arkansas Supreme Court has adopted this office’s view that such records are (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.1 Under this definition, all the records as issue here qualify as employee evaluations.

1. The termination letter. This office has consistently opined that letters of termination
   are employee-evaluation records if they contain the reasons for the termination.2 Because the termination letter 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;

1
Thomas v. Hall, 2012 Ark. 66, 8–9, 13, 399 S.W.3d 387, 392, 394–95 (2012); see also Ark. Att’y Gen. Ops. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 1998-006, 2997-222, 1995-351, 1994-306, and 1993-055. 2 E.g., Ark. Att’y Gen. Ops. 2014-052, 2013-155, 2001-276.

Mr. Richard “Chris” Madison
Alexander City Attorney
Opinion No. 2024-041
Page 3

• 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.3

Here, all the elements are clearly met with the exception of the “administrative finality” element. Because you report that the termination is not administratively final and is, therefore, capable of administrative reversal or modification, the second element is not met. Therefore, the termination letter itself cannot be disclosed and your decision to withhold the termination letter is consistent with the FOIA.

2. Written reprimands. Among the documents you have provided for my review are two
   written reprimands, each labeled as a “Letter of Disciplinary Action: Written Reprimand.” The December 2023 reprimand is signed by the Chief of Police and the other reprimand is signed by the Assistant Chief of Police. This office has consistently opined that employee evaluation and job performance records include “written reprimands, letters of caution,” and “letters related to promotions and demotions.”4 That is clearly the case here. Therefore, the letters cannot be released unless all the following elements have been met: suspension or termination; administrative finality; relevance; and compelling interest.

While the 2023 letter is titled “written reprimand,” it reflects adverse employment action that goes beyond just a written warning and likely qualifies as a suspension under the FOIA. The record is relevant to the suspension because it details the grounds for suspension. As with most disciplinary proceedings against police officers, the public has a compelling interest in the disclosure of the records in question. But, based on the information you have provided me, I do not know whether the suspension here is administratively final. If so, then the letter is disclosable. But if the suspension is not administratively final, the written reprimand cannot be disclosed.

The other written reprimand is dated January 31, 2023, but this likely is a typo and should have been “2024.”5 This particular written reprimand does not meet the requirements for disclosure because the employee was not suspended or terminated based on the contents of

3
A.C.A. § 25-19-105(c)(1).
4
E.g., Ark. Att’y Gen. Ops. 2009-146, 2008-135, 1997-261, 1993-105, 1992-231, 1991-324.
5
The date of this particular reprimand is unclear, because the date listed appears to be January 31, 2023. But, based on the sequence of events and timeline of the other letters, this date appears to be a mistake. It appears that the date should instead end in 2024.

Mr. Richard “Chris” Madison
Alexander City Attorney
Opinion No. 2024-041
Page 4

the letter. Therefore, this particular written reprimand should not be disclosed under the FOIA.

3. Internal affairs investigation files. As this office has consistently concluded, “records
   in an internal affairs file that have been generated at the behest of the employer in the course of investigating a complaint against an employee constitute “employee evaluation/job performance records.”6 Once classified as an “employee evaluation/job performance record,” one must apply the four-part test above for disclosure. But, unless the three documents you have provided are all the documents in the “internal affairs investigation files,” I have not been provided the records in question. So I cannot conclusively determine whether the records considered “internal affairs investigation files” are properly classified as “employee evaluation or job performance” records or “personnel records.” This also means I cannot apply the appropriate test for disclosure.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve. Sincerely,

TIM GRIFFIN
Attorney General

6
Ark. Att’y Gen. Op. 2007-311; see also Ark. Att’y Gen. Op. 2004-178.