Can Arkansas release a fired forensic chemist's termination letters and personnel records, and what personal information must be redacted before disclosure?

Plain-English summary

Candice Foscue, a former forensic chemist at the Arkansas State Crime Lab, was fired in October 2023. Someone filed a FOIA request for records related to her hiring and dismissal, including the termination letters, the rest of her personnel file, her CV, a list of cases in which she had given subpoenaed testimony, and the forensic chemist job description. The records custodian decided to release these records with personal information (contact info, SSN, date of birth, marital status, dependents, GPA) redacted. Foscue, as the subject of the records, asked the AG to review whether the disclosure was consistent with FOIA.

The AG concluded the custodian's decisions were consistent with FOIA in three ways:

1. The two termination letters can be released. They are employee-evaluation records. The four-part test is met: she was terminated, the termination is administratively final, the letters formed the basis for the termination, and the public has a compelling interest in disclosure. The compelling-interest finding rests on two grounds: forensic chemists hold positions of public trust (they give expert testimony in criminal prosecutions), and the discharge for failing to meet quality standards and violating ethics rules has foreseeable, substantial ramifications for criminal cases in which she testified.

2. The other records (CV, subpoena list, job description, rest of personnel file) can be released. These are personnel records, not employee-evaluation records (they pertain to her but were not created to evaluate her). They are released unless disclosure would be a clearly unwarranted invasion of privacy. They are not.

3. The redactions are mostly proper. Personal contact information, SSN, date of birth, marital status, and dependent information have a greater-than-minimal privacy interest, and disclosure would be a clearly unwarranted invasion of personal privacy under § 25-19-105(b)(12). Properly redacted.

The AG could not opine on the GPA redaction. The custodian based that redaction on A.C.A. § 25-19-105(b)(2), which protects educational records under FERPA. The AG's review authority under § 25-19-105(c)(3)(B)(i) is limited to (b)(12) (personnel privacy) and (c) (employee evaluations). The (b)(2) educational-records exception is outside that authority. The AG could only say that GPAs in employer records do not raise a (b)(12) privacy concern of their own. Whether (b)(2) bars release is a separate question.

What this means for you

Arkansas state agency records custodians

If you are processing a FOIA request for a former employee's records, this opinion gives you a clean template:

First, classify each record. Termination letters and disciplinary documents are usually employee-evaluation records. CVs, subpoena lists, job descriptions, application materials, and most personnel-file contents are personnel records. Apply the right test to each.

Second, for employee-evaluation records, apply the four-part test in § 25-19-105(c)(1). For records about police officers, forensic experts, or others in positions of public trust, the compelling-interest prong is usually met if the discipline involved a trust violation. For records about lower-level employees discharged for routine reasons, the compelling-interest prong is harder to satisfy.

Third, for personnel records, redact a clear set of privacy-sensitive items: personal contact info (home address, personal phone, personal email), SSN, date of birth, marital status, and information about dependents. Watkins, Gladden, and Carroll's treatise (the leading commentators on Arkansas FOIA) supports this list. The AG opinions consistently treat these as a "clearly unwarranted invasion of personal privacy."

Fourth, do not stack exceptions. If you redact something based on (b)(2) (educational records, FERPA), say so explicitly. If you redact based on (b)(12) (personnel privacy), say that. The AG can review (b)(12) and (c) decisions, but not (b)(2). The requester or the subject knows what they can challenge before the AG vs. what they would have to challenge in court.

Criminal defense attorneys and prosecutors

If you have cases in which a fired forensic chemist gave expert testimony, a public termination letter that documents quality-control or ethics failures is significant Brady or Giglio material. The release of the records here was justified in part because the chemist's discharge had "foreseeable and substantial ramifications" for those criminal cases. As soon as termination letters become public, you should:

• For defense attorneys: review every case in which the chemist testified. If the discharge reasons relate to lab work or testimony quality, you may have grounds for post-conviction relief, retesting motions, or new-trial petitions.
• For prosecutors: identify open cases where this expert is the witness and substitute. Review closed cases for Brady disclosure obligations.

Forensic lab employees and other public-trust positions

The compelling-interest analysis cuts strongly against your privacy in disciplinary matters. The AG's reasoning here was that forensic chemists provide expert testimony, hold positions of public trust, and their professional misconduct has ramifications outside the employer-employee relationship. The same logic applies to police officers (long established), assistant principals (Op. 2024-038), prosecutors, public defenders, school superintendents, and arguably most state-licensed professional positions where the holder exercises judgment that the public relies on.

If you are leaving such a position under disciplinary cloud, expect that termination records will be released once the discipline is administratively final. There is no safe-harbor for "I resigned voluntarily" if the resignation was effectively forced (the constructive-termination doctrine reaches that scenario, see AG Op. 2024-045).

Journalists and watchdog requesters

For state-employee disciplinary records, the path to disclosure is well-marked: termination letters become releasable when (1) the termination is administratively final, (2) the position involves public trust, and (3) the conduct that led to discharge connects to a public concern. Forensic chemists clearly meet the test. So do police officers (consistent prior AG opinions). Lower-level employees in non-trust positions may not meet the compelling-interest prong even if all other elements are satisfied.

If the agency redacts items as "education records" under (b)(2), you have to challenge that in court (the AG cannot review (b)(2) decisions). FERPA itself has tested limits, particularly for adult employees rather than students.

Common questions

Why is a forensic chemist's termination considered a public-trust matter?
Because she gave expert testimony in criminal prosecutions. The AG cited prior opinions (2024-038, 2024-021, 2023-120) treating positions of trust as a strong factor in the compelling-interest analysis. Forensic experts whose work directly affects criminal convictions are a paradigmatic example.

Why does the discharge have to be for a trust violation, specifically?
Because the compelling-interest prong looks for "the nature of the infraction" with "particular concern as to whether violations of the public trust or gross incompetence are involved" (Watkins et al., 6th ed. 2017, p. 238). A forensic chemist fired for tardiness might have less public-interest weight than one fired for failing quality standards or breaching ethics rules in case work.

Can the chemist's GPA from grad school really be redacted?
The custodian redacted it under FERPA's educational-records exception (A.C.A. § 25-19-105(b)(2)), which incorporates federal protections. The AG could not opine on whether (b)(2) actually applies because the AG's review authority is limited to (b)(12) and (c). The AG only confirmed that GPAs in employer records, considered on their own under (b)(12), are not a clearly unwarranted invasion of privacy. So the chemist (or a requester) would need to litigate the (b)(2) question if she or they wanted to.

What's the difference between personnel records and employee-evaluation records?
Personnel records are records that pertain to an employee but were not created to evaluate her (CV, application, subpoena list, job description, payroll documents, training certificates). They are released unless disclosure is a clearly unwarranted invasion of privacy under (b)(12). Young v. Rice (1992) sets the balancing test.

Employee-evaluation records are records created by or at the employer's behest to evaluate the employee (termination letters, written reprimands, performance reviews, internal affairs files). They are released only if all four elements of the (c)(1) test are met: suspension/termination, finality, relevance, compelling interest.

Why can the AG only review some FOIA exceptions?
The legislature limited the AG's role under A.C.A. § 25-19-105(c)(3)(B)(i) to opinions on personnel-privacy and employee-evaluation decisions. Other FOIA exceptions (educational records, attorney-client privilege, ongoing investigations, etc.) are reviewable only in court. This is by design: not all FOIA exceptions are about employer-employee balance.

Will this opinion affect cases the chemist testified in?
The AG didn't decide that, but it set up the inference. Termination of a forensic chemist for failing quality standards and violating ethics could trigger Brady disclosures by prosecutors, retesting motions by defendants, and post-conviction proceedings.

Background and statutory framework

Personnel records. A.C.A. § 25-19-105(b)(12) exempts "[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Arkansas Supreme Court), provides the two-step balancing test, with a thumb on the scale for disclosure.

Employee-evaluation records. A.C.A. § 25-19-105(c)(1) exempts these records but allows release upon (1) suspension or termination, (2) final administrative resolution, (3) the records forming a basis for the discipline, and (4) compelling public interest. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Arkansas Supreme Court), adopted the AG's three-element definition. Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466, applies the rule.

Compelling public interest. Watkins et al., The Arkansas Freedom of Information Act 238-39 (6th ed. 2017): factors include (1) nature of the infraction (especially trust violations or gross incompetence), (2) existence of public controversy, (3) employee's position. AG opinions 2024-038 (assistant principal), 2024-021 (law officers), 2023-120 (law officers), 2008-065, 2007-061 confirm position-specific application.

AG review authority. A.C.A. § 25-19-105(c)(3)(B)(i) limits AG opinions to whether the custodian's decision regarding personnel or employee-evaluation records is consistent with the FOIA. Other FOIA exceptions are not within the AG's review authority.

Educational-records exception. A.C.A. § 25-19-105(b)(2) exempts "education records as defined in the Family Educational Rights and Privacy Act of 1974" (FERPA, 20 U.S.C. § 1232g). Whether GPAs in personnel files qualify is contested.

Citations

• A.C.A. § 25-19-105(b)(2) (educational-records exception, outside AG review authority)
• A.C.A. § 25-19-105(b)(12) (personnel-privacy exception)
• A.C.A. § 25-19-105(c)(1) (four-part employee-evaluation test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG review of personnel/evaluation decisions)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation definition)
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (applying definition)
• AG Opinions 2024-021, 2024-038, 2023-120 (positions of public trust)
• 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. 2024-043
March 5, 2024
Ms. Candice Foscue
Via email only: [email protected]
Dear Ms. Foscue:
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 report that someone has submitted a FOIA request for (1) records related to your hiring and dismissal from the Arkansas State Crime Lab, (2) the job description for any positions you held with the Department of Public Safety, and (3) subpoenas for you and your work during your tenure with the Arkansas State Crime Lab. The records custodian has informed you that she intends to release the following records:

• Two termination letters with personal-contact information redacted;
• The remainder of your personnel file with personal-contact information, education records, social security number, date of birth, marital status, and information about dependents redacted;
• Your curriculum vitae;
• A list of court cases in which you and your work were subpoenaed; and
• The job description for Forensic Chemist.

You have provided me with a copy of the redacted records the custodian intends to release. You ask whether the custodian's decision to release these records is consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision to release these records is consistent with the FOIA. The custodian's decision to redact certain information is also consistent with the FOIA. I cannot opine on whether the custodian's decision to redact your grade point average ("GPA") is consistent with A.C.A. § 25-19-105(b)(2) because that exception is outside the scope of the authority the General Assembly has vested in the Attorney General under the FOIA.

DISCUSSION

All information relating to individual employees, former employees, or successful job applicants are either "personnel records" or "employee evaluation or job performance records." The test for the release of these two types of records 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. 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."

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. The balancing test, which takes place with the scale already tipped in favor of disclosure, has two steps. Under the first step, the custodian must assess whether 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. 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.

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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document qualifies as an employee-evaluation record, the document 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;
• 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.

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers.

3. Classification and disclosure of termination letters. You provided two letters dated October 17, 2023, with a subject line of "Termination of employment" (with redactions). Because these documents were created by or at the behest of the employer to evaluate an employee's performance, they are properly classified as employee-evaluation records.

Employee-evaluation records cannot be released unless the above four-part test for release is met. You were terminated, and it is my understanding that the termination is administratively final. In addition, the termination letters are relevant because they recount the reasons for the termination.

The inquiry, then, turns on the compelling-interest element of the test. The existence of a "compelling public interest" in disclosure necessarily depends on all the surrounding facts and circumstances. I am not equipped or authorized to undertake such a factual inquiry, but I will note that when a position involves public trust or substantial authority, the activities of that employee are of significant importance. A forensic chemist is a position involving public trust because a forensic chemist provides "expert forensic testimony" to assist with criminal prosecutions. Because your discharge relates to violations of that trust or gross incompetence (i.e., failing to meet quality standards and violating your employer's ethics rules), the public has a compelling interest in the disclosure of the termination letters. So the custodian's decision to disclose the termination letters appears to be consistent with the FOIA.

Further, the public may also have a compelling interest in the disclosure of the termination letters because your termination relates to a public controversy. Because you gave expert testimony in criminal cases and were discharged for failing to meet certain standards, that testimony could be challenged. This situation has "foreseeable and substantial ramifications" for the people involved in those criminal cases. For this reason, the custodian's decision to disclose the termination letters is consistent with the FOIA.

4. Classification and disclosure of remaining documents. You provided me several other records: the remainder of your personnel file (with redactions), your curriculum vitae, a list of court cases in which you and your work have been subpoenaed, and the job description for a forensic chemist. These records relate to you but were not created by your employer to evaluate you. As such, they are properly classified as personnel records.

A personnel record must be released when the public's interest in the record outweighs the employee's privacy interest in the document. Other than the redacted information, these records do not contain information that is of a private or intimate nature. Thus, the custodian's decision to release these documents is consistent with the FOIA.

5. Redactions. The records custodian has properly identified that some discrete pieces of information contained in the records are of a personal or intimate nature and have a greater than minimal privacy interest. The redacted information is your personal contact information, social security number, date of birth, marital status, and information about dependents. The custodian has properly determined that disclosure of this information would be a clearly unwarranted invasion of your privacy. So the custodian's decision to redact this information is consistent with the FOIA.

The custodian has also redacted your GPA from several locations. She noted the redactions were based on A.C.A. § 25-19-105(b)(2), which precludes release of "education records as defined in the Family Educational Rights and Privacy Act of 1974." Because my statutory authority only extends to reviewing whether the custodian's decision is consistent with 105(b)(12) and 105(c), I cannot address whether the custodian's decision is consistent with 105(b)(2). But I can opine that the disclosure of a GPA contained in employer records is not a clearly unwarranted invasion of your privacy under 105(b)(12). Whether that decision is consistent with 105(b)(2) is beyond the scope of this opinion.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General