When can a city release records about a fired police officer, including the termination letter and the internal affairs report on the officer's misconduct?
Subject
What the Arkansas FOIA requires for the release of a fired police officer's termination letter, demotion letter, and Office of Professional Standards investigative memorandum.
Plain-English summary
Fayetteville's senior assistant city attorney sent the AG three documents related to a former police officer's termination: a termination letter, a demotion letter, and an Office of Professional Standards (OSP) memorandum detailing an investigation into the former officer plus two current officers. The former officer objected to release.
AG Tim Griffin walked through each document.
The termination letter is an employee-evaluation record (it details the reasons for termination). Under § 25-19-105(c)(1), evaluation records are released only when four elements are met: (1) the employee was suspended or terminated; (2) the discipline is administratively final; (3) the records formed a basis for the suspension/termination decision; and (4) there is a compelling public interest in disclosure. All four elements are met for the termination letter: the officer was terminated, the appeal window has closed (final), the letter contains the reasons (basis), and police-misconduct records consistently meet the compelling-interest test. Release is consistent with the FOIA.
The demotion letter is a different story. The third element fails. The AG cited 1998 AG Op. 98-006 for the proposition that even if there was a termination, records do not become disclosable if they did not "form a basis for the decision to suspend or terminate." Here, the demotion happened simultaneously with the termination, the termination letter does not reference the demotion, and the demotion's reasons did not separately drive the termination. So the demotion letter should not be released, and the custodian's decision to release it is inconsistent with the FOIA.
The OSP memorandum involves three employees (the former officer, plus two current officers). The four-part test must be applied separately for each employee.
For the former officer (terminated): all four elements met, so the OSP memorandum can be released as to him. There were three redactions on pages 9, 21, and 26 that the custodian made. The AG flagged these because he did not see the unredacted version. If those redactions cover the names of the other two officers, they are appropriate; otherwise the analysis would change.
For the two current officers (disciplined but not suspended or terminated): the first element fails. Their portions of the OSP memorandum cannot be released as employee evaluations. The AG's office has consistently held that in this situation, the names of the non-suspended/terminated officers should be redacted but the substance of the report can come out.
What this means for you
If you are a journalist covering police misconduct
Police misconduct records are among the most reliably disclosable employee-evaluation records under Arkansas FOIA, because the "compelling public interest" prong is consistently met for law-enforcement violations. The AG cited his own prior opinions (2024-021, 2023-120) for this. So when you request termination letters and IA reports for fired officers, expect release.
The trickier areas: documents about the fired officer's discipline that did not actually drive the termination (like the demotion letter in this case). Those may be withheld even if the officer was ultimately fired. If you receive a denial on a related document, the question to ask is "did this record form a basis for the suspension or termination decision?" If yes, it should be released; if no (the discipline was for a separate matter), the FOIA does not require release.
For IA reports involving multiple officers, only the disciplined-by-suspension/termination portions are subject to disclosure. Other officers' names and identifying details should be redacted. You may still get the substantive story (what happened) without the personnel-side identification.
If you are a records custodian at a law-enforcement agency
The four-part test is the heart of the analysis. Walk through it for each document and each employee:
1. Suspension or termination, did this employee actually get suspended or terminated?
2. Administrative finality, has the appeal window closed?
3. Relevance, did this record "form a basis for" the discipline decision? This is the under-applied element. Records that exist but did not actually drive the decision do not get released.
4. Compelling public interest, for law enforcement, this is usually present, but document the analysis.
When a single record (like a multi-officer IA report) covers multiple employees, run the four-part test for each employee independently. The result may be release as to one, redaction as to another.
The AG's "I cannot opine because I don't have the unredacted version" caveat shows up here on the OSP redactions. If you ask for AG review, send the unredacted records or be prepared to receive a partial opinion.
If you are a police officer facing discipline
Once you are suspended or terminated and the appeal window closes, expect that records detailing the basis for the discipline will be public. The compelling-public-interest test is consistently met for police misconduct.
Records that did not form a basis for your discipline (a demotion that happened simultaneously, a separate disciplinary file, leave records, etc.) may not be releasable. If you object, your channel is communication with the custodian and counsel; the AG-review process at § 25-19-105(c)(3)(B)(i) is also available to you as the subject of the records.
If you are a city attorney
The "form a basis for" element is the most common pitfall. A police union argument frequently raised: "the discipline involved many records; only some actually drove the decision; the rest should not be released." This opinion confirms that argument has weight when applied carefully. The demotion letter here is the classic example.
For multi-employee IA reports, separate the analysis. Redact the names of officers whose discipline did not reach suspension/termination, but release the substance.
If you are a civil rights attorney
The compelling-public-interest element is treated as essentially automatic for law-enforcement records. Use that to push for release of historical IA reports and termination records when investigating systemic issues. The four-part test is favorable to you when the targeted officer was actually fired.
Common questions
Q: I'm filing a FOIA request for an officer's termination records. What should I expect?
A: If the officer was terminated and the appeal window has closed, the termination letter detailing the reasons should be released. Personal contact information will be redacted under § 25-19-105(b)(13). IA reports underlying the termination should also be released.
Q: What if the officer is appealing the termination?
A: The "administrative finality" element is not met during an active appeal. Records cannot be released until the appeal is resolved. After the appeal concludes (or the appeal window closes without a filing), release becomes possible.
Q: Why can't I see the demotion letter?
A: The "form a basis for" element. If the demotion was a separate disciplinary action that did not drive the termination, it is not subject to the (c)(1) release pathway. It would be analyzed as a personnel record under (b)(12), but most of the contents (the reasons for demotion) might be evaluation material that requires its own four-part analysis, often with the first element (suspension/termination on this matter) failing.
Q: What about officers in the IA report who were disciplined less severely?
A: Their portions are evaluation records, but they fail the first element (no suspension or termination). Their names should be redacted but the substantive content released. The AG's office reaches this consistently.
Q: Does the public's interest in police misconduct ever lose to the privacy interest?
A: Rarely. The compelling-public-interest analysis weighs the nature of the misconduct, public controversy involving the agency, and the employee's position. Police-officer roles consistently weigh in favor of disclosure. But the analysis is fact-specific.
Q: What if a police officer's discipline was based on conduct unrelated to police work?
A: The four-part test still applies, but the compelling-interest analysis may shift if the conduct was purely off-duty and unrelated to public trust. The AG cited Watkins's treatise: "a general interest in the performance of public employees should not be considered compelling…. 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." Off-duty conduct unrelated to the badge may not meet the compelling-interest standard; on-duty or position-related misconduct usually does.
Background and statutory framework
Arkansas FOIA distinguishes "personnel records" (§ 25-19-105(b)(12)) from "employee-evaluation or job-performance records" (§ 25-19-105(c)(1)). The two categories are mutually exclusive and use different release tests.
Personnel records: released unless disclosure would be a "clearly unwarranted invasion of personal privacy," judged by the Young v. Rice balancing test.
Employee-evaluation records: released only when all four elements of § 25-19-105(c)(1) are met. The four elements come from the statute itself, refined by Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, and Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466.
A document that is "created by or at the behest of the employer to evaluate the employee" and details the employee's "performance or lack of performance on the job" is an evaluation record. Termination letters that contain the reasons for termination, demotion letters with reasons for demotion, and IA investigative memos are all evaluation records.
When evaluation records cover multiple employees (a typical IA report situation), the four-part test runs separately for each employee. AG Op. 2023-012, 2018-103, 2008-044 establish this.
The "compelling public interest" element from Watkins's treatise: factors include the nature of the infraction (especially public-trust violations or gross incompetence), public controversy, and the employee's position. Police officers in public-facing law enforcement roles typically meet the standard.
The "form a basis for" element is from § 25-19-105(c)(1) itself: records are released only "if the records form a basis for the decision to suspend or terminate the employee." A document that exists in the personnel file but did not drive the discipline decision does not become releasable just because the discipline happened.
Citations and references
Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions, personnel and evaluation records)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (three-element FOIA test)
- Pulaski County v. Ark. Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (approval of AG definition)
Source
Original opinion text
Opinion No. 2024-095
December 23, 2024
Blake E. Pennington
Senior Assistant City Attorney
113 West Mountain Street, Suite 302
Fayetteville, Arkansas 72701
Via email only: [email protected]
Dear Mr. Pennington:
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 personnel and evaluation records, is
based on A.C.A. § 25-19-105(c)(3)(B)(i).
You indicate that "[t]he City of Fayetteville received a Freedom of Information Act request for
records related to the termination of … a former Fayetteville police officer." After you identified
and redacted responsive records, the former officer objected to the records' release. Your letter
indicates that the former officer objects based on "the sensitive nature of the investigation," the
risk of "damage" to "other officers and a private citizen," and his belief that "most of the conduct
was off-duty and not directly related to police department business."
You have provided me with the redacted records and an explanation for the redactions.
Specifically, you have provided (1) a termination letter, (2) a demotion letter, and (3) a
memorandum from the Office of Professional Standards (OSP) detailing an investigation into the
former officer's and two current officers' conduct.
RESPONSE
It is my opinion that your decisions regarding the termination letter and OSP memorandum are
consistent with the FOIA, but I am unable to opine on three redactions in the OSP memorandum
because I was not provided with the unredacted records to determine what information was
redacted. On the other hand, it is my opinion that your decision to release the demotion letter is
inconsistent with the FOIA.
DISCUSSION
1. General rules. A document must be disclosed in response to a FOIA request if (1) the request
was directed to an entity subject to the FOIA, (2) the requested document is a public record, and
(3) no exceptions allow the document to be withheld.
The first two elements appear to be met. The request was made to the City of Fayetteville—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, but that
presumption is rebuttable. I have no information to suggest that the presumption can be rebutted
here, so I will focus on whether any exceptions prevent the documents' disclosure.
For FOIA purposes, documents in a public employee's file can usually be divided into two
mutually exclusive groups: "personnel records" and "employee evaluation or job performance
records." Personnel records are records that pertain to an individual employee that were not
created by or at the behest of the employer to evaluate the employee. Employee-evaluation and
job-performance records, on the other hand, are 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.
- Classification of Documents. You indicate that, as custodian, you have categorized the
provided records as employee-evaluation and job-performance records. I agree.
This office has consistently opined that letters of termination and demotion are employee-
evaluation or job-performance records if the letters contain a reason for the termination or
demotion. The termination and demotion letters I was provided include multiple reasons for the
former officer's termination and demotion.
Similarly, the OSP memorandum, like all reports detailing an internal investigation of an
employee's conduct, is an employee-evaluation or job-performance record.
Employee-evaluation and job-performance records may only be released if the following four
elements exist:
- Suspension or termination. The employee was suspended or terminated;
- Administrative finality. The suspension or termination is administratively final and is,
therefore, incapable of any administrative reversal or modification; - Relevance. The records in question formed a basis for the decision to suspend or terminate
the employee; and - Compelling interest. The public has a compelling interest in the disclosure of the records
in question.
- The termination letter. All four of the elements requiring disclosure appear to be met for the
termination letter: the former officer was terminated, the letter contains the reasons for the
termination, and the public has a compelling interest in records that reflect violations of policies
set by a law-enforcement agency. Finally, you indicate that the time for the former officer to
appeal his termination has ended, which makes the termination administratively final.
Therefore, I agree with your decision to release the termination letter as an employee-evaluation
or job-performance record.
- The demotion letter. On the other hand, I do not agree that your decision to release the
demotion letter is consistent with the FOIA. Here, it is the third element—whether the record
formed a basis for the termination—that is likely not met. As one of my predecessors explained,
"[E]ven if there ha[s] been a suspension or termination, the records are not disclosable if they did
not form a basis for the decision to suspend or terminate."
The fact that the former officer was demoted—which is evidenced by the demotion letter—does
not appear to be a basis for his termination. For example, the termination letter contains no
reference to the former officer's demotion. Further, the demotion and termination appear to have
occurred simultaneously, so the demotion could not have been a basis for the termination decision.
Thus, based on the documents I received, it is my opinion that the demotion letter should not be
disclosed because the demotion itself did not form a basis for the termination.
- The OSP memorandum. The OSP memorandum details an investigation into three Fayetteville
Police Department employees. When one record is an employee-evaluation or job-performance
record of multiple employees, the custodian must separately apply the four-element test for each
employee to the record.
As to the former officer, the OSP memorandum should be released because, as explained above,
all four elements appear to be met: termination; relevance; compelling interest; and according to
the information I have been given, administrative finality.
But the analysis is different for the other two officers. You indicate that these two officers were
disciplined but not suspended or terminated. Therefore, the records fail the first element—that the
employee be suspended or terminated—and may not be released. In this type of situation, this
office has consistently opined that the names of these two officers should be redacted but the
remainder of the record should be released.
It appears that you have properly redacted the names of the non-suspended, non-terminated
officers. There are, however, redactions on pages 9, 21, and 26 of the OSP memorandum that
appear to cover more than the officers' names. If these redactions were of information that
identifies the two officers, the redactions are proper. But because I was not provided with the
unredacted documents, I cannot determine whether these redactions are consistent with the FOIA.
After reviewing the documents and information provided, it is my opinion that your decisions
regarding the termination letter and OSP memorandum are consistent with the FOIA's treatment
of employee-evaluation and job-performance records. But your decision to release the demotion
letter is not.
Deputy Attorney General Noah P. Watson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General