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

Someone filed an Arkansas FOIA request with the City of Alexander asking for the termination notice and the complete internal investigation file relating to a former police officer's DWI arrest. The city attorney decided to release the internal investigation files and to withhold the termination letter (because the officer's grievance was still pending). The city attorney asked the AG to review whether those decisions were consistent with FOIA. The records the city attorney provided actually contained three separate documents labeled together as the "termination letter": (1) a February 1, 2024 termination letter, (2) a January 2024 written reprimand for failing to meet probation conditions, and (3) a December 4, 2023 written reprimand for the DWI and refusing chemical testing.

The AG analyzed each document under the FOIA's employee-evaluation exception in A.C.A. § 25-19-105(c)(1). All three documents were properly classified as employee-evaluation records (created by or at the behest of the employer to evaluate the employee). For these records to be released, four conditions must be met:

1. The employee was suspended or terminated.
2. The suspension or termination is administratively final (no pending appeal or grievance).
3. The records formed a basis for the disciplinary decision (relevance).
4. The public has a compelling interest in disclosure.

Applying the test:

• Termination letter (Feb 1, 2024): Cannot be released. The officer's grievance is pending, so the termination is not administratively final. The custodian's decision to withhold is consistent with FOIA.

• January 2024 written reprimand: Cannot be released. The employee was not suspended or terminated based on this reprimand, so the first element of the test is not met.

• December 4, 2023 written reprimand: The AG could not decide. The reprimand goes beyond a written warning and likely qualifies as a suspension under FOIA. Three of the four elements are met (probable suspension, relevance, compelling public interest in police DWI conduct), but the AG was missing information on whether the suspension is administratively final. If final, releasable. If not, must be withheld.

• Internal affairs investigation files: The AG could not decide because the city attorney did not provide those records for review. The AG could not determine whether they qualify as employee-evaluation records or personnel records, or apply the appropriate test.

What this means for you

City attorneys and records custodians

Three procedural points the AG made plainly:

First, do not bundle records under a single label. The city attorney's "termination letter" was actually three separate records (one termination, two reprimands), and the AG analyzed each separately. If you are submitting records to the AG (or making your own classification decisions), separate them, label each, and apply the test individually. A wrong bundle leads to wrong analysis.

Second, "administratively final" means no pending grievance, appeal, or other reversal mechanism. While the grievance is pending, withhold the termination letter. Once the grievance concludes (either upholding the termination, modifying it, or reversing it), reapply the test. If the result is administratively final and is a suspension or termination, the document becomes releasable under the rest of the test.

Third, classify before testing. The two main FOIA categories for employment records are personnel records (released unless disclosure is a clearly unwarranted invasion of privacy) and employee-evaluation records (released only if the four-part test is met). Different categories, different tests. A document labeled "internal affairs file" might be either, depending on whether it was created by or at the behest of the employer to evaluate the employee. Do the classification work before applying the test.

Police departments

If you produce a written reprimand that contains language like "next step is termination" or imposes substantive consequences, expect that reprimand to be reanalyzed as a suspension under FOIA. The label on the document does not control. The legal effect does. The AG noted that the December 2023 reprimand "reflects adverse employment action that goes beyond just a written warning and likely qualifies as a suspension under the FOIA."

If you want a reprimand to function as a true warning (and stay confidential under FOIA), keep it as a warning: do not impose loss of pay, demotion, suspension, or restrictive duties. Keep the consequences corrective, not punitive.

FOIA requesters and journalists

If you are seeking police disciplinary records and the agency tells you the termination is not administratively final, the answer is "wait, then re-request." Track the grievance docket if you can. Once the grievance resolves, the analysis changes.

If you are told the records are being withheld as employee evaluations, ask the custodian to explain the four-part test as applied to each record. The compelling-interest prong is fact-specific, and police officers in positions of public trust generally satisfy it. The administrative-finality prong is the bottleneck.

For internal affairs files specifically, the classification question matters. Press the custodian to classify each document and explain why. A blanket "internal affairs is exempt" is not a valid response under Arkansas FOIA.

Police oversight advocates

This opinion shows that the AG cannot be a complete substitute for judicial review. The AG can opine on classification and the four-part test, but only with the records before them. A custodian who keeps records out of the AG's hands (even unintentionally, as here with internal affairs files) prevents the AG from giving definitive guidance. If you are pursuing access through FOIA, you may need to litigate. The Arkansas FOIA gives requesters a private right of action, and Pulaski County v. Ark. Democrat-Gazette and other cases provide the framework.

Common questions

Why does a pending grievance block release of a termination letter?
The Arkansas FOIA's employee-evaluation exception, A.C.A. § 25-19-105(c)(1), requires that any suspension or termination be "administratively final" before related records can be released. While a grievance is pending, the disciplinary action could be reversed or modified. Releasing the termination letter mid-grievance would betray the legislative balance between accountability and protecting employees from premature publication of unresolved claims.

Once the grievance ends, can the termination letter be released even if the officer is reinstated?
Probably not as a "termination letter," because if the officer is reinstated, there is no termination. The records of the grievance proceeding (and any reprimand or suspension that survives the grievance) may be analyzed under the four-part test. The termination letter itself, if rescinded, may stay sealed.

Can a written reprimand that didn't lead to suspension ever be released?
Not under the employee-evaluation exception in A.C.A. § 25-19-105(c)(1). The first element of the four-part test requires suspension or termination. If the reprimand was just a reprimand (no suspension, no termination), the test is not met and the document cannot be released. This is consistent with prior AG opinions (2009-146, 2008-135, 1997-261, 1993-105, 1992-231, 1991-324).

What if a "written reprimand" effectively was a suspension?
The label does not control. The Arkansas Supreme Court in Thomas v. Hall (2012 Ark. 66) confirmed the AG's view that the test looks at the legal effect, not the document title. A reprimand that suspends without pay, restricts duties significantly, or otherwise functions as a suspension may be analyzed as one.

Are internal affairs files always confidential?
No. Internal affairs files in Arkansas can be (1) employee-evaluation records, (2) personnel records, or (3) public records of agency function. Classification depends on what each file actually contains. Records "generated at the behest of the employer in the course of investigating a complaint against an employee" qualify as employee-evaluation records (Ark. Att'y Gen. Op. 2007-311). Other internal affairs records (case logs, organizational policies, statistics) may not be employee-specific and may be releasable as ordinary public records.

What's the "compelling public interest" prong?
The Arkansas FOIA does not define it, but the leading commentators (John J. Watkins et al.) and AG opinions have set out factors: nature of the infraction, public controversy related to the agency, and the employee's position in the agency hierarchy. For police officers (positions of significant public trust), violations of trust like DWI generally meet the compelling-interest prong.

Background and statutory framework

Custodian opinion request authority. A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the records custodian, the requester, or the subject of the records to seek an AG opinion on whether the custodian's decision regarding personnel or employee-evaluation records is consistent with the FOIA.

Employee-evaluation records definition. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-element test: (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance. Termination letters, written reprimands, letters of caution, demotion letters, and internal affairs investigation records all typically qualify.

Four-part disclosure test. A.C.A. § 25-19-105(c)(1) requires all four:
1. Suspension or termination occurred.
2. Administrative finality (no pending review).
3. Relevance: the records formed a basis for the decision.
4. Compelling public interest in disclosure.

Compelling interest factors. John J. Watkins et al., The Arkansas Freedom of Information Act 238-39 (Arkansas Law Press, 6th ed. 2017): nature of the infraction (especially trust violations or gross incompetence), existence of a public controversy, and employee's position. AG Op. 96-168 notes the primary purpose of the exception is preserving honest exchanges in formal evaluation processes.

Personnel records vs. employee-evaluation records. Personnel records (employment applications, payroll records, leave requests, training certificates) are released unless disclosure is a "clearly unwarranted invasion of personal privacy" under A.C.A. § 25-19-105(b)(12). The Young v. Rice (308 Ark. 593, 1992) balancing test (with a thumb on the scale for disclosure) governs.

Citations

• A.C.A. § 25-19-105(c)(1) (four-part test for employee-evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (custodian opinion request authority)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation definition)
• AG Opinions 2014-052, 2013-155, 2001-276 (termination letters as evaluation records)
• AG Opinions 2009-146, 2008-135, 1997-261, 1993-105, 1992-231, 1991-324 (reprimands as evaluation records)
• AG Opinion 2007-311 (internal affairs files as evaluation records)
• AG Opinion 96-168 (purpose of evaluation-records exception)

Source

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

Original opinion text

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.

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 consistent 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. Under this definition, all the records at 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. 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;
• 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.

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." 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." This particular written reprimand does not meet the requirements for disclosure because the employee was not suspended or terminated based on the contents of 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.'" 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