Can a memorandum about why a county prosecutor's employee resigned be released under Arkansas FOIA, especially when the former employee says she resigned voluntarily and is now running for the same county prosecutor's office?

Plain-English summary

Benton County received a FOIA request for the personnel file of a former employee of the Benton County Prosecutor's Office. The requester narrowed the request to records relevant to whether the former employee voluntarily resigned. One specific record is in question: a memorandum dated June 20, 2022 that describes the events surrounding her departure. The former employee left her position on June 16, 2022, and twelve days later requested and received a copy of her "entire personnel file." The disputed memo was not in that file.

The former employee's attorney challenged disclosure on three grounds: (1) the memo's authenticity is suspect because it was not in the file when she left; (2) she resigned rather than was terminated, so the FOIA test for releasing employee-evaluation records is not met; and (3) the records custodian had not formally decided whether to release.

The AG's analysis: this is fact-intensive territory. Whether the memo can be released turns on whether the resignation was forced (a constructive termination) or genuinely voluntary. Constructive termination occurs when an employee resigns "in the face of certain, impending termination." Prior AG opinions (2023-077, 2012-019, 2011-084) recognize this doctrine.

If the custodian determines the resignation was voluntary, the test fails at the first element (no suspension or termination), and the memo cannot be released.

If the custodian determines the resignation was constructive termination, the other three elements are likely satisfied:

• Administrative finality: the employee left in 2022 with no pending appeals.
• Relevance: the memo documents the circumstances surrounding the departure, and after-the-fact memos that recite the basis for a disciplinary action are treated as forming the basis for it (AG Op. 2007-061).
• Compelling public interest: substantially boosted by the fact that the former employee is now running for Benton County Prosecutor (AG Op. 2002-067 supports treating candidacy for "a position of public trust" as raising the public's interest in the candidate's prior employment records).

The AG could not decide for the custodian. The AG laid out the framework and instructed the custodian to apply it.

What this means for you

County records custodians and attorneys

Two practical takeaways:

First, the constructive-termination test is fact-intensive and you have to make a finding before you can apply the rest of the FOIA test. Look at: (1) the timing of the resignation relative to threatened or proposed termination; (2) whether the employer or supervisor made statements that termination was imminent; (3) whether an investigation or formal process was already underway; (4) whether the resignation was offered "in lieu of" termination as a face-saving exit. The contents of the disputed memo will often supply useful evidence here, but you have to assess authenticity and credibility before relying on it.

Second, when the subject of the records is currently a candidate for public office, the compelling-interest analysis tilts toward disclosure. Voters and the press have a substantial interest in records bearing on the candidate's past performance, especially when the candidacy is for the same office or a related one. Document this finding in your file. Stilley v. McBride (1998) puts the burden on the person resisting disclosure to show their privacy interest outweighs the public interest, and that burden is harder to meet for an active candidate.

Candidates for public office in Arkansas

If you have a disciplinary or constructive-termination history with a former public employer and you are now running for office (or considering it), expect that records about your departure will surface through FOIA. The AG's framework is clear: candidacy for a position of public trust raises the public's compelling interest in employment records, even records that might otherwise have stayed sealed.

Before filing for office, request your full personnel file. Identify any documents that could be used against you. If your departure was contested, get a clear factual narrative ready and consider whether to address it preemptively.

Former employees disputing the contents of records about them

You have standing under A.C.A. § 25-19-105(c)(3)(B)(i) to ask the AG to review the custodian's disclosure decision (you do not have to wait for the requester or the custodian to act). But the AG's review is limited to whether the disclosure decision is consistent with FOIA, not to whether the underlying record is accurate. If you think the memo is fabricated or backdated, you need a different forum (a defamation suit, an employment claim, a court action seeking expungement). The AG cannot adjudicate authenticity.

FOIA requesters

This opinion shows the role timing of constructive termination plays. If you are seeking records about a former public employee whose departure was contested, the question of whether the resignation was forced is central. Frame your request to capture both the resignation paperwork and any after-the-fact memos describing the circumstances. After-the-fact memos can fall within the employee-evaluation exception, but they are subject to the same four-part test.

If the custodian withholds records on grounds of voluntary resignation, ask for a written explanation citing the specific factual basis. If you suspect the resignation was actually forced, gather contextual evidence (HR communications, board minutes, contemporaneous news coverage) and present that to the custodian as part of asking them to reclassify.

Employment attorneys

The constructive-termination doctrine in Arkansas FOIA tracks similar concepts in employment law but is not identical. The FOIA test asks whether the employee resigned "in the face of certain, impending termination" (AG Op. 2023-077, 2012-019, 2011-084). The employment-law doctrine of constructive discharge typically asks whether the employer made working conditions so intolerable that a reasonable person would resign. Different tests, different consequences. Be careful not to import one into the other.

Common questions

What's a "constructive termination" under Arkansas FOIA?
A resignation offered in the face of "certain, impending termination." The doctrine recognizes that an employee facing imminent termination may resign as a face-saving alternative, but the underlying disciplinary action is functionally the same as termination. AG Opinions 2023-077, 2012-019, and 2011-084 establish the standard.

Why does the candidate-for-office angle matter?
Because the public's compelling interest in disclosure ramps up when the records' subject puts herself "in contention for a position of public trust" (AG Op. 2002-067). Voters need information to evaluate candidates. The general rule that disclosure requires a compelling public interest, not just general curiosity, gets stronger when the subject becomes a public-office candidate.

Is a memo created two years after the employee left still an employee-evaluation record?
Yes, if it was created by or at the behest of the employer to evaluate the employee or to document the circumstances of her departure. AG Op. 2007-061 holds that "after-the-fact documents that recite the circumstances that prompted a suspension or termination should properly be treated as reflecting the bases for the disciplinary action." Timing of creation does not control classification.

Can the AG decide whether a memo was fabricated?
No. The AG is not a factfinder when issuing FOIA opinions. Authenticity disputes go to court, not to the AG. The custodian must reach a working conclusion on authenticity to apply the FOIA tests, but the AG's review is limited to whether the legal framework is being applied correctly.

Does the custodian have to release the memo even if the subject objects?
Possibly. The subject's privacy interest is one factor, but FOIA puts the burden on the person resisting disclosure to show their interest outweighs the public's. Stilley v. McBride (1998) confirms this burden. The fact that the subject "may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective" (Watkins et al. and consistent AG opinions).

What records can the AG review under FOIA?
A.C.A. § 25-19-105(c)(3)(B) authorizes the AG to opine on whether a custodian's decision regarding "personnel or evaluation records" is consistent with the FOIA. Other FOIA questions (general public records, attorney-client materials, ongoing investigations, educational records) are not within the AG's review authority and can only be tested in court.

Why was the AG unable to give a definitive answer here?
Because the custodian had not yet made a release decision, and the threshold question (was the resignation constructive termination?) is a factual question that depends on evidence outside the AG's review. The AG can lay out the legal framework, but the custodian has to apply it to the facts.

Background and statutory framework

Public records and the FOIA presumption. A.C.A. § 25-19-103(7)(A) defines public records broadly. The presumption is rebuttable. Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), confirms the presumption can be rebutted if records do not "constitute a record of the performance or lack of performance of official functions."

Personnel records and privacy balancing. A.C.A. § 25-19-105(b)(12) exempts personnel records to the extent disclosure would be a clearly unwarranted invasion of privacy. Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Arkansas Supreme Court), creates the two-step balancing test with a thumb on the scale for disclosure. Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Arkansas Supreme Court), puts the burden of resisting disclosure on the person whose privacy is at stake.

Personal contact information. A.C.A. § 25-19-105(b)(13) specifically exempts personal contact information of certain public employees (personal phone, personal email, home address).

Employee-evaluation records. A.C.A. § 25-19-105(c)(1) exempts these records subject to the four-part test. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, adopted the AG's three-element definition. Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466, applies it.

Constructive termination doctrine. AG Opinions 2023-077, 2012-019, 2011-084 establish that resignation "in the face of certain, impending termination" qualifies as constructive termination, satisfying the first element of the disclosure test.

After-the-fact documentation. AG Op. 2007-061 holds that documents recounting the basis for a disciplinary action, even if created after the action, count as forming the basis for it for purposes of the relevance prong.

Candidacy as compelling-interest factor. AG Op. 2002-067 recognizes that the public's interest in employment records of a candidate for "a position of public trust" is "substantial."

AG review authority. A.C.A. § 25-19-105(c)(3)(B)(i) authorizes the records custodian, the requester, or the subject to ask the AG to review whether a personnel-or-evaluation disclosure decision is consistent with the FOIA.

Citations

• A.C.A. § 25-19-103(7)(A) (public records definition)
• A.C.A. § 25-19-105(b)(12) (personnel privacy exception)
• A.C.A. § 25-19-105(b)(13) (personal contact info exception)
• A.C.A. § 25-19-105(c)(1) (four-part employee-evaluation test)
• A.C.A. § 25-19-105(c)(3)(B) (AG review authority for personnel/evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (custodian/requester/subject standing to seek opinion)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• 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
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466
• AG Opinions 2023-077, 2012-019, 2011-084 (constructive termination doctrine)
• AG Opinion 2007-061 (after-the-fact memos)
• AG Opinion 2002-067 (candidacy as compelling-interest factor)

Source

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

Original opinion text

Opinion No. 2024-045
March 6, 2024
Mark Murphey Henry
Post Office Box 4800
Fayetteville, Arkansas 72702
Dear Mr. Henry:
You have requested an opinion from this office regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the requested records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision 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.

Your correspondence indicates that Benton County received a FOIA request on February 27, 2024, to inspect the personnel file of your client, who was formerly employed with the Benton County Prosecutor's Office (the "BCPO"). The requester then submitted an amended, narrower request on the same day for records relevant to whether your client voluntarily resigned from her position at the BCPO.

There is one record in particular on which you seek this office's opinion. This record is a memorandum dated June 20, 2022, and it details the events surrounding your client's departure from the BCPO. Because your client left employment with the BCPO on June 16, 2022, and then, on June 28, 2022, requested and received a copy of her "entire personnel file," which did not contain this record, you question the record's authenticity. Additionally, you argue that because your client resigned and was not terminated, the test for release of job performance records under the FOIA has not been met. Finally, you note that the records custodian has not made a decision about whether the memorandum should be withheld or released.

RESPONSE

It is the statutory duty of this office under A.C.A. § 25-19-105(c)(3)(B) to state whether the custodian's decision regarding the release of "personnel or evaluation records" is consistent with the FOIA. This office is not authorized to make that decision for the custodian. In this case, it is not apparent from the records you have provided whether the custodian has made a decision to disclose the memorandum in response to the FOIA request. Therefore, given this limited mandate, I can only set forth the standards the custodian must apply in determining whether to release the memorandum.

DISCUSSION

1. General rules. A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The first two elements appear to be met. The request was made to Benton County, which is a public entity subject to the FOIA. And the memorandum at issue appears to be a public record. Because the record is held by a public entity, it is presumed to be a public record, although that presumption is rebuttable. Accordingly, given that I have no information to suggest that the presumption can be rebutted, I will focus on whether any exceptions prevent the document's disclosure.

The FOIA contains two exemptions for two groups of documents normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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.

2. Personnel records. While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records that pertain to an individual employee and that were not created by or at the behest of the employer to evaluate the employee.

A personnel record is open to public inspection 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 "a thumb on the scale" in favor of disclosure, has two steps. First, 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 de minimis privacy interest. If the privacy interest is minimal, then the thumb on the scale in favor of disclosure tips the balance to require disclosure. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure.

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, her privacy interests outweigh the public's interests. 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.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.

3. 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:

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
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

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.

4. Classification and disclosure of the memorandum. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure. The custodian's correspondence suggests (though it does not explicitly state) that the custodian has deemed the memorandum at issue an employee-evaluation record. Because the memorandum appears to have been created by or at the behest of the employer for the purpose of evaluating the employee, and it details the employee's performance or lack of performance on the job, I believe this decision is consistent with the FOIA.

Employee-evaluation records cannot be released unless the above four-part test for release is met. The first question, then, is whether your client was suspended or terminated. Your client was not suspended, and she resigned from her position with the BCPO. But there is a question about whether she resigned in lieu of termination. This office has consistently held that if a resignation is forced, i.e., if it is offered in the face of "certain, impending termination," then it qualifies as a "constructive termination" that meets the first element for the disclosure of evaluation records. The contents of memorandum strongly suggest that your client was forced to resign. If the memorandum is accurate, then the first element is likely met. Since I am not a factfinder when issuing opinions, I cannot say whether the memorandum is accurate.

If the custodian determines that your client's resignation was voluntary, then the memorandum must be withheld from release because the first element of the test has not been met. But if the custodian determines that your client's resignation amounted to a constructive termination, the custodian proceeds to the second element of the test: determining whether the suspension or termination is final. Because your client left the BCPO in 2022, and you maintain that she left of her own accord, it does not appear that there are any pending appeals. Thus, this second element of the test would be met.

With respect to the third element, relevance, this office has held that "after-the-fact documents that recite the circumstances that prompted a suspension or termination should properly be treated as reflecting the bases for the disciplinary action." Thus, even though the memorandum was created after your client left employment with the BCPO, it would meet the third element of the test because it documents the circumstances surrounding the purported constructive termination.

The final element of the test for release of an employee-evaluation record is whether the public has a compelling interest in the disclosure of the record. The existence of a "compelling public interest" in disclosure necessarily depends on all the surrounding facts and circumstances, and I am not equipped or authorized to undertake such a factual inquiry. You have noted, however, that your client is currently running for the office of Benton County Prosecutor. In my opinion, the public's interest in the employment records of a former county employee is substantial when the former employee has placed "[herself] in contention for a position of public trust." Consequently, I believe that the custodian could reasonably determine that the compelling public interest element of this test has been met.

5. Summary. As explained above, it is the duty of the records custodian to (1) identify which public records are responsive to a FOIA request, (2) properly classify the requested records, and (3) apply the appropriate test for disclosure. It appears that the records custodian has determined that the memorandum at issue is an employee-evaluation record, but it is not clear to me whether the custodian has decided to release it. The custodian must apply the test for release of evaluation records described above. If the custodian determines that your client's resignation was not forced, the test for release cannot be met. But if the custodian determines that your client resigned in the face of "certain, impending termination," the other three elements of the test for release are likely met.

This opinion was prepared by Senior Assistant Attorney General Kelly Summerside, with the concurrence of Chief Deputy Attorney General Ryan Owsley and former Deputy Attorney General Elisabeth A. Walker.

Sincerely,
RYAN OWSLEY
Chief Deputy Attorney General

ELISABETH A. WALKER