Can the public see the investigation report and termination paperwork for an Arkansas school superintendent who resigned during a misconduct investigation?
Plain-English summary
Someone made a FOIA request to the Osceola School District for records about the district's superintendent. The custodian identified five responsive documents:
- An investigation report
- The superintendent's written response to the investigative findings (March 5, 2024)
- A letter notifying the superintendent of termination proceedings
- The superintendent's resignation letter (March 14, 2024)
- A letter from the superintendent's attorney (March 27, 2024)
The custodian planned to release all five with one redaction in the resignation letter. The custodian's attorney asked the AG to confirm whether the planned release tracks FOIA.
The AG's answers:
Investigation report: Properly classified as an employee-evaluation/job-performance record. Disclosable because the four-part test under A.C.A. § 25-19-105(c)(1) is met:
- The superintendent's resignation in the face of certain impending termination is a "constructive termination" (under prior AG opinions like 2023-077).
- The resignation appears final.
- The investigation report formed the basis for the board's decision.
- The "compelling public interest" prong is likely met given the superintendent's high rank and the inquiry's focus on potential misuse of public funds and breach of public trust.
Termination notice letter: Also a job-performance record because it recounts the specific reasons for the termination. The four-part test is met for the same reasons.
March 14 resignation letter and March 27 attorney letter: Personnel records, not job-performance records, because they were not created at the employer's behest to evaluate the superintendent. Personnel records get released unless disclosure would be a clearly unwarranted invasion of privacy. Neither letter contains personal/intimate information triggering that exception. Disclosable.
Superintendent's response to the investigative findings (March 5): The AG could not definitively classify this. If created at the employer's behest, it is a job-performance record; if not, a personnel record. Either way, it is disclosable, just under different tests.
Redaction in the resignation letter: The AG could not assess without knowing what was redacted.
What this means for you
School records custodians
The opinion is a useful template for handling FOIA requests about a senior administrator who resigned amid a misconduct investigation:
- An investigation report, a termination letter, and any documents that detail the employee's performance or were created at the employer's behest to evaluate the employee are job-performance records. Apply the four-part test under § 25-19-105(c)(1).
- The "constructive termination" doctrine satisfies prong 1 (suspended or terminated) when an employee resigns in the face of certain impending termination. Document the timeline (board notice of termination → resignation) so the custodial decision is supportable.
- For senior employees and serious misconduct (especially around public funds), the "compelling public interest" prong is usually met.
- Resignation letters and post-resignation attorney letters from the employee or the employee's counsel are personnel records, not evaluation records, because they were not created to evaluate the employee.
School district attorneys
The four-part test for releasing evaluation records is the framework under A.C.A. § 25-19-105(c)(1):
1. Suspension or termination
2. Final administrative resolution
3. Records that formed the basis for the discipline
4. Compelling public interest
Constructive termination satisfies prong 1, per consistent AG opinions. Final administrative resolution requires no pending appeals. Use Watkins's three factors for prong 4 (nature of the infraction, public controversy, employee's position) and document each.
Journalists and FOIA requesters
The opinion confirms that for senior public-employee misconduct cases, the records you most want are the most likely to be released. Investigation reports, termination notices, resignation letters, and post-resignation correspondence are all generally disclosable when the four-part test is met. If the district is withholding such records, ask whether constructive termination applies (resignation in face of certain termination), what stage the administrative resolution is at, and how the records relate to the disciplinary decision.
School board members
The board's decision-making record around a senior employee's discipline is going to become public if the employee is terminated or constructively terminated. Document the basis for the decision in the records that will need to be produced. Personal opinions or speculative remarks become public; stick to documented findings.
Public employees and their attorneys
If you receive a notice of termination proceedings and decide to resign, your resignation letter is a personnel record, not an evaluation record. It will be released subject to the privacy balancing test, which generally favors public access. Your post-resignation attorney letter to the district is also a personnel record. The investigation report and termination notice letter are evaluation records and will be released if the four-part test is met. Constructive termination doctrine treats your resignation as if it were a termination for FOIA purposes.
If you have privacy concerns about specific information (medical conditions, third-party identities, personal contact information), flag them in advance so the custodian can consider redactions under § 25-19-105(b)(13) or the discrete-redaction rule in § 25-19-105(f).
Common questions
What is "constructive termination" for FOIA purposes?
A resignation made in the face of "certain, impending termination." When the school board notifies an employee that termination proceedings are starting and the employee then resigns, the resignation is treated as a termination for FOIA's evaluation-records test. The AG has opined this consistently in Ops. 2023-077, 2012-019, and 2011-084.
Why does the timing matter?
The first prong of the evaluation-records test under § 25-19-105(c)(1) is that the employee was "suspended or terminated." A purely voluntary resignation (e.g., to take another job) does not trigger the test, and evaluation records stay sealed. A resignation forced by certain impending termination does trigger the test, opening evaluation records to release.
Why is the public's interest in a superintendent's misconduct "compelling"?
The opinion applies the three Watkins factors: nature of the infraction (potential misuse of public funds and breach of public trust), public controversy (likely, given the district investigation), and the employee's position (superintendent, the highest-ranking position). All three weigh toward "compelling."
What about the redaction in the resignation letter?
The AG could not opine because he did not know what was redacted. Generally, a personnel record can have specific pieces redacted under A.C.A. § 25-19-105(f) when the discrete information would be a clearly unwarranted invasion of privacy. Examples: home address, personal phone number, medical condition, names of third-party witnesses or victims.
Is the superintendent's response to the investigation an evaluation record or a personnel record?
The AG could not say definitively. The classification depends on whether the response was created at the employer's behest (district asked for it as part of the investigation, evaluation record) or unilaterally by the superintendent (personnel record). Either way, it is disclosable, but under different tests:
- Evaluation record: four-part test under § 25-19-105(c)(1)
- Personnel record: privacy-balancing test under § 25-19-105(b)(12) and Young v. Rice
Can the superintendent block the release?
The subject's preference is irrelevant. The Young v. Rice test is objective. The fact that the subject considers release a privacy invasion does not change the analysis.
Background and statutory framework
Two FOIA personnel-record exemptions. Arkansas FOIA distinguishes "personnel records" (A.C.A. § 25-19-105(b)(12)) from "employee evaluation or job performance records" (A.C.A. § 25-19-105(c)(1)). The two are mutually exclusive; the test for release differs.
Personnel record balancing test. Personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Arkansas Supreme Court), set the two-step test:
1. Does the information give rise to a greater than de minimis privacy interest?
2. If so, does that interest outweigh the public's interest in disclosure?
The scale tips in favor of public access, and the burden is on the person resisting disclosure (Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Arkansas Supreme Court)). The subject's preference is irrelevant.
Evaluation record definition. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Arkansas Supreme Court), and Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466 (Arkansas Court of Appeals), define evaluation records as records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack thereof.
Evaluation record release test. A.C.A. § 25-19-105(c)(1) requires four elements:
1. Suspension or termination (constructive termination satisfies this; AG Ops. 2023-077, 2012-019, 2011-084)
2. Final administrative resolution
3. Records formed the basis for the discipline
4. Compelling public interest
"Compelling public interest" factors. Watkins on Arkansas FOIA (6th ed. 2017), at 238–39, identifies three factors: (1) nature of the infraction (especially violations of public trust or gross incompetence); (2) existence of public controversy; (3) employee's position within the agency.
Discrete redactions. A.C.A. § 25-19-105(f) authorizes redactions of specific information even within a record that is otherwise releasable. Personal contact information of certain public employees is exempt under § 25-19-105(b)(13).
Subject of records or custodian's right to AG review. A.C.A. § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject ask the AG for a written opinion on whether the release decision tracks FOIA.
Public records definition. A.C.A. § 25-19-103(7)(A) defines public records, with rebuttable presumption per Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007) (Arkansas Supreme Court).
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(12) (personnel records)
- A.C.A. § 25-19-105(b)(13) (personal contact information protection)
- A.C.A. § 25-19-105(c)(1) (employee evaluation records, four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (custodian/subject right to AG review)
- A.C.A. § 25-19-105(f) (discrete redactions)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation records definition)
- Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466
- Pulaski County v. Ark. Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007)
- Watkins et al., THE ARKANSAS FREEDOM OF INFORMATION ACT (6th ed. 2017)
- Ark. Att'y Gen. Ops. 2023-077, 2012-019, 2011-084 (constructive termination)
- Ark. Att'y Gen. Ops. 2014-052, 2013-155, 2001-276 (termination letters as evaluation records)
Source
Original opinion text
Opinion No. 2024-055
April 4, 2024
Rebecca Worsham
Mixon & Worsham PLC
505 Union Street
Post Office Box 1442
Jonesboro, Arkansas 72403
Dear Ms. Worsham:
You have requested an opinion from this office regarding the Arkansas Freedom of
Information Act (“FOIA”). Your request, which is made as the custodian’s attorney, 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 the Osceola School District has received a FOIA
request for certain records regarding the school district’s superintendent. The records
custodian has deemed the following records responsive to that request:
1. An investigative report concerning the district’s superintendent;
2. The superintendent’s written response to the investigative findings, dated March 5,
2024;
3. A letter providing the superintendent with notice of termination proceedings;
4. The superintendent’s resignation letter, dated March 14, 2024; and
5. A letter from the superintendent’s attorney, dated March 27, 2024.
The custodian has classified the investigative report, the superintendent’s response to the
report, and the letter notifying the superintendent of termination proceedings as job
performance records that are subject to disclosure under A.C.A. § 25-19-105(c)(1). The
custodian has classified the March 14 resignation letter and the March 27 letter from the
superintendent’s attorney as personnel records that are subject to disclosure—with one
redaction—under A.C.A. § 25-19-105(b)(12)’s personnel records balancing test. You ask
if these decisions are consistent with the FOIA. Rebecca Worsham
Opinion No. 2024-055
Page 2
RESPONSE
In my opinion, the custodian has correctly classified the investigative report, the letter
notifying the superintendent of termination proceedings, the resignation letter, and the
letter from the superintendent’s attorney. However, I do not have enough information to
determine whether the custodian has properly classified the superintendent’s written
response to the investigative findings as a job-performance record. If the superintendent’s
response was not created at the behest of the employer, it should be classified as a personnel
record.
It is also my opinion that the custodian has correctly decided to disclose all of the
responsive records. The four-part test for release of employee evaluation or job-
performance records appears to be met, and it does not appear that disclosure of the
superintendent’s personnel records would constitute an unwarranted invasion of personal
privacy. Because I do not know what information was redacted from the March 14
resignation letter, I cannot definitively say whether that redaction is consistent with the
FOIA.
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 Osceola School District,
which is a public entity subject to the FOIA. And the records at issue appear to be public
records.1 Because these records are held by a public entity, they are presumed to be public
records,2 although that presumption is rebuttable.3 Accordingly, given that I have no
information to suggest that the presumption can be rebutted, I will focus on whether any
exceptions prevent the documents’ disclosure.
The FOIA contains two exemptions for two groups of documents normally found in
employees’ personnel files.4 For purposes of the FOIA, these items can usually be divided
1 The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based
information, or data compilations in any medium, required by law to be kept or otherwise kept, and that
constitute a record of the performance or lack of performance of official functions…carried out by a public
official or employee.” A.C.A. § 25-19-103(7)(A).
2 Id.
3 See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007)
(“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not
otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the
performance or lack of performance of official functions.”’ (quoting Ark. Att’y Gen. Op. 2005-095)).
4 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 Rebecca Worsham
Opinion No. 2024-055
Page 3
into two mutually exclusive groups: “personnel records”5 or “employee evaluation or job
performance records.”6 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.7
A personnel record is open to public inspection except “to the extent that disclosure would
constitute a clearly unwarranted invasion of personal privacy.”8 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.9 The balancing test, which takes place “with
the scale tipped in favor of public access,” has two steps.10 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.11 If the privacy
interest is minimal, then the records should be disclosed. 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.12
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. Att’y Gen. Op. 97-368;
John J. Watkins et al., THE ARKANSAS FREEDOM OF INFORMATION ACT 205–06 (6th ed. 2017).
5 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.”)
6 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.”)
7 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins et al., supra, at 202.
8 A.C.A. § 25-19-105(b)(12).
9 308 Ark. 593, 826 S.W.2d 252 (1992).
10 Watkins et al., supra, at 208.
11 Young, 308 Ark. at 598, 826 S.W.2d at 255.
12 Id. Rebecca Worsham
Opinion No. 2024-055
Page 4
Because the exceptions must be narrowly construed, the person resisting disclosure bears
the burden of showing that, under the circumstances, the employee’s privacy interests
outweigh the public’s interests.13 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.14
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.15 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.16
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.17 “This exception includes
records generated while investigating allegations of employee misconduct that detail
incidents that gave rise to an allegation of misconduct.”18
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
13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra, at 207.
15 A.C.A. § 25-19-105(f).
16 See A.C.A. § 25-19-105(b)(13).
17 Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; 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); Ark. Att’y Gen. Ops. 2015-057,
2009-067, 2006-038, 2003-073, 95-351, and 93-055.
18 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations). Rebecca Worsham
Opinion No. 2024-055
Page 5
4. The public has a compelling interest in the disclosure of the records in question
(i.e., compelling interest).19
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 because that concern, at least theoretically, always
exists. 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.20
These commentators also note that “[t]he status of the employee” or “his or her rank within
the bureaucratic hierarchy” may be relevant in determining whether a “compelling public
interest” exists,21 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.22 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.23
4. Classification and disclosure of the investigative report. Because the investigative
report was created by the school district’s board of directors for the purpose of evaluating
the superintendent, and it details the superintendent’s performance or lack of performance
on the job, I believe the custodian’s decision to classify the report as an employee
evaluation or job performance record 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 the superintendent was suspended or terminated.
The superintendent was not suspended, but he did resign in lieu of termination after the
school board notified him that it was initiating termination proceedings. This office has
19 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
20 Watkins et al., supra, at 238–39.
21 Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-
level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”).
22 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
23 E.g., Ark. Att’y Gen. Op. 96-168. Rebecca Worsham
Opinion No. 2024-055
Page 6
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.24
Because the school board accepted the superintendent’s resignation in lieu of termination,
the test proceeds to the second element: determining whether the suspension or termination
is final. Although not explicitly stated in your correspondence, I gather from the
information you have provided that there are no appeals pending, and the superintendent’s
resignation is final. If that understanding is correct, the second element of the test would
be met.
The third element is also met because the contents of the investigative report formed the
basis for the board’s decision to terminate the superintendent.
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.
However, given the superintendent’s high-ranking position and the investigation’s inquiry
into the potential misuse of public funds and breach of public trust, I believe that the
“compelling public interest” element of this test has likely been met.
5. Classification and disclosure of the termination letter. This office has consistently
opined that letters of termination are employee-evaluation records if they contain the
reasons for the termination.25 Because the letter notifying the superintendent of termination
proceedings recounts the specific reasons for his termination, the letter qualifies as an
employee-evaluation record. And for the same reasons detailed above, the test for release
of this employee-evaluation record has been met.
6. Classification and disclosure of the March 14 and March 27 letters. Because both of
these letters pertain to the superintendent but were not created by or at the behest of the
employer to evaluate him, they are properly classified as personnel records. And because
it does not appear that the disclosure of these records would constitute an unwarranted
invasion of personal privacy, I believe the custodian has correctly determined that the
FOIA requires the release of these records. The custodian has redacted one piece of
information from the March 14 resignation letter on the grounds that the release of this
information would constitute an unwarranted invasion of personal privacy. Because I do
not know precisely what was redacted, I cannot say whether this redaction is consistent
with the FOIA.
7. Classification and disclosure of the superintendent’s response to the report. The
custodian has classified the superintendent’s written response to the investigative findings
as an employee-evaluation record, but the reasons for this decision are not clear. It appears
24 See generally Ark. Att’y Gen. Ops. 2023-077, 2012-019, 2011-084.
25 E.g., Ark. Att’y Gen. Ops. 2014-052, 2013-155, 2001-276. Rebecca Worsham
Opinion No. 2024-055
Page 7
that this written response, like the March 14 and March 27 letters, is a record pertaining to
the employee but not created by or at the behest of the employer. If this is the case, the
written response to the investigation is a personnel record, not an employee-evaluation
record. But I cannot definitively say that the custodian’s classification is incorrect, as it is
possible that the district requested the response from the superintendent, meaning that the
response was created at the employer’s behest.
Regardless of whether the superintendent’s written response to the investigative report is
classified as a personnel record or an employee-evaluation record, I believe the custodian
has correctly determined that it is subject to disclosure. It does not appear that the release
of this record would constitute an unwarranted invasion of personnel privacy under A.C.A.
§ 25-19-105(b)(12)’s privacy balancing test for personnel records. And the four-part test
for release of employee evaluation or job performance records under A.C.A.
§ 25-19-105(c)(1) has been met for reasons explained above. Therefore, I believe the
release of this record is consistent with the FOIA.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I
hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General