When the Cabot Police Department received a FOIA request for an officer's suspension letters and a citizen complaint, which had to be released and which could be withheld?

Subject

Whether a Cabot Police Department custodian's planned release of three suspension letters and a Citizen Complaint/Compliment Form for Officer Chad Fowler was consistent with the Arkansas FOIA.

Plain-English summary

Officer Chad Fowler objected to the planned release of three suspension letters and a redacted Citizen Complaint/Compliment Form. The Attorney General found the decision to release all four documents consistent with FOIA. He could not decide whether the redactions were proper because he did not have an unredacted copy of the form.

The February 22, 2022 suspension letter does not give the grounds for suspension. The AG classified it as a personnel record and applied the privacy balancing test. In this record, any privacy interest Fowler had was outweighed by the public's interest in knowing whether an officer in a position of public trust may have abused that trust while on duty.

The February 7, 2025 and August 23, 2023 letters give the specific reasons for suspension, making them employee-evaluation or job-performance records. Those records can be released only if the four requirements in A.C.A. § 25-19-105(c)(1) are met: suspension or termination, administrative finality, relevance to the decision, and a compelling public interest. The AG said the supplied information likely met all four. Nothing submitted showed a timely or pending appeal, and he found a compelling interest in these records reflecting violations of office policy by a law-enforcement officer.

The AG classified this Citizen Complaint/Compliment Form as a personnel record. He explained that an unsolicited third-party complaint does not become an evaluation record merely because the employer later investigates. Applying the same privacy balance, he found disclosure of this form consistent with FOIA. He did not identify any particular redaction as required or proper.

What this means for you

Public-records custodians

Read each suspension letter before classifying it. This opinion treats a letter without suspension grounds as a personnel record and letters with stated grounds as evaluation records. Apply the corresponding release test to each. If you seek an AG opinion on redactions, provide the unredacted record so the AG can examine what was removed.

Law-enforcement officers

The AG reviewed Fowler's four supplied documents individually and approved their planned release. For the two evaluation records, he found no indication that an appeal had been timely filed or remained pending. A different record or appeal status would require its own analysis under the same four statutory conditions.

People who submitted complaints

This opinion found the particular Citizen Complaint/Compliment Form releasable after weighing the officer's privacy interest against the public interest. It does not decide which details on the form may be redacted. The AG lacked an unredacted copy and expressly declined to decide that question.

Common questions

Why did the 2022 letter receive a different classification?

It did not state the reasons for suspension, so the AG treated it as a personnel record. The 2023 and 2025 letters stated specific grounds and were treated as evaluation records.

What did the AG decide about the complaint form?

He found the custodian's decision to release this particular form consistent with FOIA after applying the personnel-record privacy balance. He did not decide whether the form's redactions were proper.

Does any citizen complaint automatically become public when filed?

This opinion does not announce that rule. It classifies an unsolicited third-party complaint as a personnel record and applies the privacy test to the particular form supplied for review.

Were the two evaluation records administratively final?

The AG said the four disclosure requirements likely were met. The supplied records indicated the suspensions had ended after a set number of shifts, and nothing submitted showed a timely or pending appeal.

Background and statutory framework

Personnel records are open except to the extent disclosure would be a clearly unwarranted invasion of personal privacy. Young v. Rice supplies a two-step balance: assess whether the information creates a more than minimal privacy interest, then weigh that interest against the public interest in disclosure. The opinion notes that the balance favors disclosure.

Employee-evaluation or job-performance records have the separate four-condition test in A.C.A. § 25-19-105(c)(1). For these two suspension letters, the AG found that test likely satisfied because the records stated grounds for the suspensions and the other supplied information supported finality and public interest. The opinion cites a series of prior AG opinions concerning suspension letters and third-party complaints.

Currency note

This opinion was issued in 2025. Check current FOIA law and the record's contents before applying its analysis to a new request.

Citations

• A.C.A. § 25-19-103(7)(A) (public records)
• A.C.A. § 25-19-105(b)(12) (personnel records)
• A.C.A. § 25-19-105(c)(1) (evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG review request)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)

Source

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

Original opinion text

Opinion No. 2025-029

April 29, 2025

Officer Chad Fowler
Cabot Police Department
Via email only: [email protected]

Dear Officer Fowler:

You have requested an opinion from this Office concerning the Arkansas Freedom of Information Act (FOIA). Your request is made as the subject of personnel and employee- evaluation records under A.C.A. § 25-19-105(c)(3)(B)(i).

You have provided me with the FOIA request, three unredacted suspension letters, and a redacted “Citizen Complaint/Compliment Form,” 1 all of which the Cabot Police Department’s custodian of records intends to disclose. You object to the release of these records and ask if the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian’s decision to release the four documents you have provided is consistent with the FOIA. But I cannot determine whether the custodian’s decision to redact certain information within the documents is consistent with the FOIA because I was not provided with unredacted copies of the documents.

DISCUSSION

1. General rules. A document must be released 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

1
I have not been provided with unredacted copies of the records.
Chad Fowler
Opinion No. 2025-029
Page 2

subject to the FOIA. 2 Second, the requested document must constitute a public record. 3 Third, the document must not be subject to an exemption. 4

The first two elements appear to be met here. The request was made to the Cabot Police Department—a public entity subject to the FOIA. 5 And the records at issue appear to be public records. 6 Because these records are held by a public entity, they are presumed to be public records, 7 although that presumption is rebuttable. 8 I have no information, however, to suggest that the presumption can be rebutted, so I will turn to whether any exemptions prevent the documents’ release.

For purposes of the FOIA, employees’ personnel files 9 normally contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a “personnel record” or an “employee-evaluation or job-performance record” and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.

2. Suspension letters. Suspension letters may qualify as a personnel record or as an
   evaluation record depending on the letter’s contents. This Office has consistently opined

2
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
3
Id.
4
Id.
5
See, e.g., A.C.A. § 25-19-103(7)(A) (including “a public official or employee” or “a governmental agency”); Ark. Att’y Gen. Ops. 2024-095, 2023-120, 2020-028. 6 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). 7 Id.
8
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)). 9 “Personnel files” are not referenced in the FOIA but typically includes the following documents: employment applications; school transcripts; payroll-related documents such as information about 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. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017).. Chad Fowler Opinion No. 2025-029 Page 3

that a suspension letter qualifies as a personnel record when the letter does not specify the grounds for suspension. 10 On the other hand, this Office has consistently opined that a suspension letter qualifies as an evaluation record when that letter does specify the grounds for the suspension. 11

2.1. Personnel record. The February 22, 2022 letter does not provide the specific reasons for suspension. Thus, it qualifies as a “personnel record” instead of an employee- evaluation or job-performance record. Personnel records are open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 12

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. 13 The balancing test, which places a thumb on the scale in favor of disclosure, has two steps. 14 Whether the subject of the records may consider the release of the records to be a clearly unwarranted invasion of privacy is irrelevant to the analysis. 15

First, the custodian must assess whether the information contained in the requested record is of such a personal or intimate nature that it gives rise to a greater than minimal privacy interest. 16 If the privacy interest is minimal, then disclosure is required.

Second, if the information gives rise to a greater than minimal privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public’s interest in disclosure. 17

10
E.g., Ark. Att’y Gen. Ops. 2023-081, 2023-077, 2023-069, 2015-053.
11
E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension was an “employee evaluation/job performance record” when the letter “detai[ls] the incidents that gave rise to the discipline”), 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies as a ‘job performance record’”), 1998-075 (analyzing a list containing law-enforcement officer disciplinary action in the past 5 years). 12 A.C.A. § 25-19-105(b)(12).
13
308 Ark. 593, 826 S.W.2d 252 (1992).
14
Watkins et al., supra note 9, at 208.
15
Ark. Att’y Gen. Ops. 2008-108, 2005-058, 2001-112, 98-130.
16
Young, 308 Ark. at 598, 826 S.W.2d at 255.
17
Id.
Chad Fowler
Opinion No. 2025-029
Page 4

Even assuming you have some privacy interest in the suspension letter, in my opinion, that interest is far outweighed by the combination of the “thumb on the scale favoring disclosure” and the public’s interest in knowing that a police officer in a position of public trust may have abused that trust while on duty.18 Therefore, the custodian’s decision to disclose this particular document as a “personnel record” is consistent with the FOIA.

2.2. Employee-evaluation and job-performance records. Because the February 7, 2025 letter and the August 23, 2023 letter both recount the specific reasons for the suspension, both letters qualify as an employee-evaluation or job-performance record. But employee-evaluation or job-performance records cannot be released unless all the following elements have been met:

• Suspension or termination. The employee was suspended or terminated;

• Administrative finality. The suspension or termination is administratively final 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. 19

Here, all the elements likely are met. Therefore, the custodian’s decision to disclose the suspension letters is consistent with the FOIA. First, the provided information indicates that you were suspended. Second, although you have not noted whether the suspension was administratively final, the record itself indicates that the suspension was incapable of any administrative reversal or modification. That is, the suspension ended after a certain number of shifts and nothing submitted indicates that an appeal was timely made or is still pending. Third, the record is relevant to the suspension because it details grounds for the suspension. Fourth, the public has a compelling interest in the disclosure of the record in question 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 a record, such as this one, that reflects violations of office policy. 20

3. Citizen Complaint/Compliment Form. An unsolicited letter of complaint—generated
   by a third party unaffiliated with the employer 21—about a public employee is a personnel record and is not transformed into an employee-evaluation or job-performance record by

18
E.g., Ark. Att’y Gen. Ops. 2023-117, 2018-023, 1998-260.
19
A.C.A. § 25-19-105(c)(1).
20
Ark. Att’y Gen. Ops. 2023-071, 2023-013, 2014-129, 2006-026.
21
See, e.g., Ark. Att’y Gen. Op. 2001-123.
Chad Fowler
Opinion No. 2025-029
Page 5

virtue of any subsequent investigation. 22 Based on the information provided, this particular document is best classified as a personnel record. Any privacy interest that you may have in this document, in my opinion, is far outweighed by the combination of the “thumb on the scale favoring disclosure” and the public’s interest in knowing that a police officer in a position of public trust may have abused that trust while on duty. 23 Therefore, the custodian’s decision to disclose this particular document as a “personnel record” is consistent with the FOIA.

Because I have only been provided copies of a redacted “Citizen Complaint/Compliment Form,” I cannot conclude whether redactions were properly made.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

22
Ark. Att’y Gen. Ops. 2001-123, 2000-166, 98-130, 98-001, 96-257.
23
E.g., Ark. Att’y Gen. Ops. 2023-117, 2018-023, 1998-260.