Should a sheriff's office release the disciplinary file and resignation letter of a deputy who resigned in lieu of termination?
Plain-English summary
The Madison County Sheriff's Office received a FOIA request for the employment records of a former deputy. The sheriff identified two responsive records: (1) a disciplinary record describing the deputy's conduct and the corrective action taken, and (2) a letter documenting the deputy's resignation in lieu of termination, which spelled out the reasons. The sheriff classified both as employee-evaluation records and decided to withhold them under A.C.A. § 25-19-105(c)(1), reasoning that the deputy was not "suspended or terminated" because he resigned.
AG Tim Griffin agreed that both records are employee-evaluation records under Thomas v. Hall, 2012 Ark. 66, but disagreed about whether they could be withheld. The four-part FOIA release test for employee-evaluation records is:
- Discipline level. The employee was suspended or terminated.
- Finality. There has been a final administrative resolution.
- Relevance. The records formed a basis for that decision.
- Compelling public interest. The public has a compelling interest in disclosure.
On the first prong, the AG cited his office's consistent rule that a "forced" resignation, offered "in the face of certain, impending termination," qualifies as a "constructive termination." The deputy was given the choice of resigning or being fired, so the resignation was a constructive termination. The second prong was met because the resignation was final. The third prong was met because the records detailed the events that formed the basis of the forced resignation. The fourth prong was met because a law-enforcement officer is invested with significant public trust, and there is "usually a compelling public interest in records, such as these, that reflect policy violations and a breach of the public trust."
So both records should be released to the FOIA requester.
What this means for you
If you are a FOIA custodian for a law-enforcement agency
When a deputy or officer resigns in lieu of termination, the AG's office treats that as a constructive termination for FOIA purposes. So the discipline-level prong of the four-part test is met. If the resolution is final and the records were the basis for the decision, the only remaining question is the compelling public interest, and for sworn law-enforcement officers, the AG and Arkansas Supreme Court have repeatedly recognized one when records reflect policy violations or a breach of the public trust.
If you are the custodian, do not assume the records can be withheld just because the technical "termination" never happened. Document the resignation circumstances in your file, apply the four-part test, and prepare to release if it is met.
If you are a sheriff or police chief
When you give a deputy or officer the choice of resigning or being fired, the resulting resignation letter and the underlying disciplinary record are likely subject to FOIA release upon request. Consider that exposure when crafting the resignation paperwork: the letter will become a public record summarizing the reasons. Use accurate, professional language that you would be comfortable explaining publicly.
If you are a deputy or officer offered resignation in lieu of termination
Understand that the resignation letter and the underlying disciplinary record are likely to become public if someone files a FOIA request. The "in lieu of termination" framing does not, in the AG's view, shield those records from disclosure. If you have privacy or due-process concerns, raise them at the time the letter is being negotiated, not after.
If you are a FOIA requester or journalist
For records of law-enforcement personnel disciplinary matters, this opinion is a useful citation. Records about a deputy who resigned under threat of termination are still releasable when the four-part test is met. The "compelling public interest" prong is essentially presumed for sworn officers facing policy-violation discipline.
Common questions
Q: What is a "constructive termination" for FOIA purposes?
A: The AG's office has consistently held that a resignation offered "in the face of certain, impending termination" qualifies as a constructive termination. The opinion cites Ark. Att'y Gen. Ops. 2023-077, 2012-019, and 2011-084 for this rule. The key fact is that the employee was given a choose-or-be-fired option, not a voluntary parting.
Q: Why do these records count as employee-evaluation records and not personnel records?
A: Personnel records and employee-evaluation records are mutually exclusive categories under FOIA. Employee-evaluation records, per Thomas v. Hall, are (1) created by or at the behest of the employer (2) to evaluate the employee, (3) detailing the employee's performance or lack of performance on the job. A disciplinary file fits that test. The opinion classifies the records under (c)(1)'s evaluation-record framework.
Q: What is the four-part test?
A: For an employee-evaluation record to be released, all four must be met:
1. The employee was suspended or terminated.
2. There has been a final administrative resolution.
3. The records formed a basis for the suspension or termination decision.
4. The public has a compelling interest in the disclosure.
Q: When is there a "compelling public interest"?
A: Watkins's leading FOIA treatise (cited in the opinion) identifies factors: the nature of the infraction (especially violations of the public trust or gross incompetence); the existence of a public controversy related to the agency; and the employee's position. For sworn law-enforcement officers, the AG opinions cited treat policy-violation discipline as raising a compelling public interest as a matter of routine.
Q: Could the deputy contest disclosure separately from the AG opinion?
A: Yes, the AG opinion is persuasive but not binding. The deputy can seek injunctive relief in circuit court before the records are released. As a practical matter, the AG opinion will be a heavy thumb on the scale; courts often follow the AG's FOIA reasoning, especially on settled rules like the constructive-termination doctrine.
Q: Does this rule apply to non-law-enforcement employees?
A: The first three prongs of the four-part test apply across the board. The compelling-public-interest prong is more easily satisfied for high-public-trust positions like sworn law-enforcement officers. For lower-rank, non-public-facing positions, the analysis can come out differently. Custodians should evaluate case-by-case.
Background and statutory framework
Arkansas FOIA exempts two related categories of employee documents. Personnel records (A.C.A. § 25-19-105(b)(12)) are protected only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Employee-evaluation or job-performance records (A.C.A. § 25-19-105(c)(1)) are protected unless the four-part release test is met.
Personnel files typically include applications, transcripts, payroll documents, transfer records, insurance forms, performance evaluations, recommendation letters, disciplinary-action records, leave requests, training certificates, and legal documents (subpoenas). Within that set, performance evaluations and disciplinary-action records are usually classified as employee-evaluation records, not personnel records, because they were created by or at the behest of the employer to evaluate the employee.
The four-part test traces to A.C.A. § 25-19-105(c)(1) and a long line of AG opinions construing it. The constructive-termination rule is the AG's settled response to attempts to short-circuit the test by characterizing a forced exit as a "voluntary resignation." A "compelling public interest" is fact-specific, but for sworn law-enforcement officers, repeated AG opinions and Arkansas appellate cases recognize a compelling interest in records reflecting policy violations and breaches of public trust.
Citations and references
Statutes:
- A.C.A. § 25-19-105(b)(12), personnel-records exemption
- A.C.A. § 25-19-105(c)(1), employee-evaluation/job-performance records and release test
- A.C.A. § 25-19-105(c)(3)(B)(i), AG review authority
- A.C.A. § 25-19-103(7)(A): definition of "public records"
Cases and treatise:
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, employee-evaluation records definition
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466, adoption of definition
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), public-record presumption
- John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)
Source
Original opinion text
Opinion No. 2024-082
October 1, 2024
Sheriff Ronnie Boyd
Madison County Sheriff's Office
201 West Main Street
Huntsville, Arkansas 72740
Dear Sheriff Boyd:
You have requested an opinion from this office 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 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 Madison County Sheriff's Office has received a FOIA request for the employment records of a former employee. You have identified the records you believe are responsive to this request, and you have provided two of these records for my review: (1) a disciplinary record detailing certain actions by the employee and the corrective action that followed and (2) a letter documenting the former employee's resignation in lieu of termination, which includes the reasons for the resignation.
You have classified both records as employee-evaluation records, and you have determined that the records are not subject to release under A.C.A. § 25-19-105(c)(1) because the employee was not suspended or terminated. You ask if these decisions are consistent with the FOIA.
RESPONSE
In my opinion, the custodian has correctly classified the disciplinary record and the letter documenting the employee's resignation as employee-evaluation records. However, I believe that the custodian's decision to withhold these records is inconsistent with the FOIA because the four-part test for release of employee-evaluation records appears to be met.
DISCUSSION
- 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 the Madison County Sheriff's Office, which is a public entity subject to the FOIA. And the records at issue appear to be public records. Because these records are held by a public entity, they are presumed to be public records, 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 documents' 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.
- Employee-evaluation records. Because the records at issue are 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 or job performance" 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. "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:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
- 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 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.
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, 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.
- The disciplinary record. The disciplinary record was created by the sheriff's office to evaluate the employee, and it details the employee's performance or lack of performance on the job. It also documents the resulting corrective action that was taken. Consequently, this record is best classified as an employee-evaluation record under 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 employee was suspended or terminated. The employee was not suspended, but he did resign in lieu of termination. This is evident from the letter documenting his resignation, in which you state that the employee was given the choice of resigning or being fired. 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.
Because the employee resigned 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 employee'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 disciplinary record detail the events that formed the basis for the employee's forced resignation.
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. But I believe that the final element has been met in this case because, as this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect policy violations and a breach of the public trust.
- The letter documenting the forced resignation. Similarly, the letter documenting the employee's resignation in lieu of termination is best classified as an employee-evaluation record. This office has consistently opined that letters of termination are employee-evaluation or job-performance records if they contain the reasons for the termination. While the employee in this case was not "terminated," his resignation was tendered in the face of "certain, impending termination," so it operates as a "constructive termination." And because the letter documenting the employee's forced resignation recounts the specific reasons for the constructive termination, the letter qualifies as an employee-evaluation record. For the same reasons detailed above, the test for release of this employee-evaluation record has also been met.
Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General