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 the Cabot Police Department's planned disclosure of three suspension letters and a citizen complaint/compliment form for Officer Chad Fowler complies with the Arkansas FOIA, where Fowler objects to release of the records.
Plain-English summary
Cabot Police Officer Chad Fowler objected to a FOIA request that asked for his disciplinary records. The custodian planned to release three suspension letters and one Citizen Complaint/Compliment Form. Fowler invoked his right under A.C.A. § 25-19-105(c)(3)(B)(i), as the subject of personnel and evaluation records, to ask the AG whether the release was consistent with FOIA.
The AG validated the release of all four documents. The reasoning splits along the personnel-record vs. evaluation-record line:
February 22, 2022 suspension letter (personnel record). This letter did not specify the grounds for suspension. Under settled AG opinion (2023-081, 2023-077, 2023-069, 2015-053), a suspension letter that does not state the reasons for suspension is a personnel record, not an evaluation record. The standard is the Young v. Rice balancing test. The AG concluded that even assuming Fowler had some privacy interest, it was "far outweighed" by the combination of the FOIA's tilt toward disclosure and the public's interest in knowing whether a police officer in a position of public trust may have abused that trust. Release is consistent with FOIA.
February 7, 2025 and August 23, 2023 suspension letters (evaluation records). Both letters recounted the specific reasons for the suspension, which makes them evaluation/job-performance records under the AG's 2001-276 line of opinions. Evaluation records require all four elements of § 25-19-105(c)(1) to be met: suspension or termination, administrative finality, relevance, and compelling public interest.
The AG concluded all four were met:
1. Suspension: confirmed by the documents themselves.
2. Administrative finality: although Fowler did not state whether the suspension was final, the records indicated the suspension ended after a set number of shifts and there was no pending appeal. The AG took this as administrative finality.
3. Relevance: the letters detailed the specific grounds for the suspension, making them directly relevant.
4. Compelling public interest: police officers carry significant public trust, and AG precedent (Ops. 2023-071, 2023-013, 2014-129, 2006-026) consistently holds that there is a compelling public interest in records reflecting violations of police office policy. The "public interest" element is met for misconduct records about law enforcement officers.
So the two grounds-specifying suspension letters are releasable as evaluation records.
Citizen Complaint/Compliment Form (personnel record). Under AG Op. 2001-123 and similar precedents, an unsolicited complaint by a third party about a public employee is a personnel record, not an evaluation record. It does not become an evaluation record because the employer subsequently investigates. Even though the form has the word "complaint" in it, the form itself is third-party generated, not employer-created. The Young v. Rice balancing test applies, and the public interest in police-misconduct records outweighs Fowler's privacy interest.
The AG noted he could not opine on whether the redactions within the Citizen Complaint/Compliment Form were proper because the custodian only provided a redacted copy. To get a definitive opinion on redactions, the custodian needs to send unredacted copies as part of the AG-review process.
What this means for you
Police chiefs and public records custodians
Three takeaways:
- Suspension letters that say why are evaluation records. Suspension letters that don't are personnel records. The classification matters because the release standard is different. Don't rely on the document's title; look at whether the letter specifies the grounds for the suspension.
- Police-misconduct records reach the "compelling public interest" element almost automatically. The AG has consistently held that violations of police office policy implicate public trust strongly enough to satisfy the compelling-interest element. If the other three elements are met (suspension/termination, finality, relevance), expect the records to be released.
- Unsolicited citizen complaints are personnel records, not evaluation records. They do not get the evaluation-records four-element protection just because they go into a discipline file. Whether the complaint was substantiated and an investigation followed does not change the document's classification.
When you submit redacted records to the AG for review, include unredacted copies. The AG cannot review what is redacted without seeing what was removed. This is a common procedural problem the AG keeps flagging.
Law enforcement officers
Your suspension letters are mostly going to be released. The AG's pattern is clear: police-misconduct records implicate compelling public interest, and the four-element test is more often met than not for these. Two practical points:
- If you are objecting to release, focus on something specific that the AG can review (a particular redaction, a specific privacy interest like a family member's identity, a clearly inapplicable record). Generalized objections do not move the needle.
- The "administrative finality" element gives you the strongest argument when an internal appeal is pending. If you are still in the appeals process, the AG cannot certify that the suspension is final, and the evaluation records cannot be released yet. Document any pending appeal in your AG-review submission.
City attorneys
The AG opinion is a good template for advising on a police-records FOIA production. The breakdown by document type, the four-element analysis, and the public-trust-compelling-interest reasoning all transfer to similar requests at other departments.
The administrative-finality issue is worth flagging on the front end. If your officer is still in an appeals process, the suspension letter cannot be released as an evaluation record yet. Wait for finality before producing.
Citizen complainants
Your complaint about a police officer is a public record once it's filed. It can be released to anyone (with redactions of personal contact information that the FOIA requires). If you do not want your complaint to be a public record, do not file it on a department complaint form; raising the issue informally or through a complaint to the AG's office may have different disclosure rules.
Journalists
Police-misconduct records have the cleanest path to release under Arkansas FOIA. The four-element test (suspension/termination, finality, relevance, compelling public interest) is built around accountability. If a department is withholding records of an officer's discipline by claiming the four elements aren't met, the most common pressure points are the finality element (was the discipline final?) and the relevance element (was this letter actually the basis for the discipline?). Both are factually verifiable.
Common questions
Q: Why was the February 2022 letter classified differently from the February 2025 and August 2023 letters?
Because the 2022 letter did not state the grounds for suspension. The AG's classification rule: a suspension letter that doesn't say why is a personnel record (Young v. Rice balancing test). A suspension letter that does say why is an evaluation record (four-element test). The 2025 and 2023 letters laid out the specific reasons, so they fall in the second category.
Q: How does the AG decide whether the public has a "compelling interest" in a police-misconduct record?
For law enforcement records, the AG uses three factors from the Watkins treatise: (1) the nature of the infraction (especially whether it involves violations of public trust or gross incompetence), (2) the existence of public controversy related to the agency, and (3) the employee's position within the agency. Police officers' position of public trust pushes most misconduct records over the compelling-interest threshold.
Q: Does the officer have any way to keep these records private?
Limited options. Generalized privacy objections do not work. The strongest argument is on a discrete redaction (family member's name, home address of a witness, medical information that crept into the letter). The officer can also argue the suspension is not yet administratively final if an appeal is pending. Otherwise, AG precedent leans heavily toward release.
Q: What about the citizen complaint that didn't lead to discipline? Is that still public?
Yes. An unsolicited citizen complaint is a personnel record under the AG's framework, not an evaluation record. The complaint is releasable under the Young v. Rice balancing test, and the AG generally finds the public's interest in police accountability outweighs the officer's privacy interest. The complaint's outcome (substantiated, unfounded, no action) does not change its disclosure status.
Q: My department received an internal-affairs report. Is that a personnel record or an evaluation record?
An internal affairs investigation report created by or at the behest of the department to evaluate the employee's conduct is an evaluation record. The four-element test applies. For unsolicited complaints from outside the department, those are personnel records. The AG distinguishes between citizen-generated complaints (personnel records) and department-generated investigation materials (evaluation records).
Q: Can the officer just refuse to authorize release?
No. The AG-review process under § 25-19-105(c)(3)(B)(i) is procedural. The officer can ask for review, but the AG decides what FOIA requires based on the records and the law. There's no veto right.
Background and statutory framework
The two-track personnel-records / evaluation-records framework in A.C.A. § 25-19-105(b)(12) and (c)(1) is the structural backbone of any personnel-file FOIA analysis:
- Personnel records (b)(12): everything about an employee that was not created by or for the employer to evaluate the employee. Open to public inspection except where disclosure would constitute "a clearly unwarranted invasion of personal privacy." The Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), balancing test applies, with the scale tipped toward disclosure.
- Evaluation/job-performance records (c)(1): records (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. Cannot be released unless all four of: suspension or termination, administrative finality, relevance, and compelling public interest.
The classification rule for suspension letters specifically (does the letter state the reasons for suspension?) comes from a chain of AG opinions: 2023-081, 2023-077, 2023-069, 2015-053 (no-grounds letters are personnel records), and 2001-276, 2001-244, 1998-075 (grounds-specifying letters are evaluation records).
The classification rule for citizen complaints comes from Op. 2001-123 (third-party-generated unsolicited complaints are personnel records), Op. 2000-166 (similar), Op. 98-130 (similar), Op. 98-001 (similar), and Op. 96-257 (similar). The complaint does not transform into an evaluation record by virtue of subsequent investigation; that's a separate document.
The compelling-interest analysis for law enforcement specifically draws on Op. 2023-071, 2023-013, 2014-129, and 2006-026, which all treat police misconduct records as implicating compelling public interest in the typical case.
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(12) (personnel records exception)
- A.C.A. § 25-19-105(c)(1) (evaluation records four-element test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)
- Prior AG opinions cited: Ops. 2024-095, 2023-120, 2023-117, 2023-081, 2023-077, 2023-071, 2023-069, 2023-013, 2020-028, 2018-023, 2015-053, 2014-129, 2006-026, 2005-058, 2001-276, 2001-244, 2001-123, 2001-112, 2000-166, 1998-260, 1998-130, 1998-075, 1998-001, 96-257
Source
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 files9 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 employer21—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.