When a Jonesboro police officer is the subject of a citizen complaint and gets disciplined including suspension, can the public see the complaint form, the performance notice, and the suspension letter under FOIA?

Subject

Whether the City of Jonesboro records custodian's decision to release Officer Will Tate's citizen-complaint form and two disciplinary records (performance notice and suspension letter) was consistent with the Arkansas FOIA.

Plain-English summary

Officer Will Tate of the Jonesboro Police Department was the subject of a 2023 use-of-force complaint. Someone filed a FOIA request for "personnel file and any IA documents associated with a 2023 use of force on Lana Turner." The City of Jonesboro custodian decided to release three records: a citizen-complaint form, a "Performance Notice," and a suspension letter. Officer Tate objected and asked the AG to review.

The AG broke the records into two categories.

The citizen-complaint form is a personnel record, not an evaluation record. The AG follows a long-established rule: an unsolicited complaint from a third party (here, a member of the public) about a public employee is a personnel record, even if the agency later investigates. It doesn't transform into an evaluation record just because an investigation followed. The disclosure test for personnel records is the Young v. Rice balancing test, with a thumb on the scale for openness. The public has a strong interest in knowing whether a police officer in a position of public trust may have abused that trust on duty. The AG concluded that interest "far outweighs" Officer Tate's privacy interest in the document.

The "Performance Notice" and the suspension letter are employee-evaluation records. The Performance Notice was clearly created by the employer to evaluate the officer's performance. The suspension letter qualifies because it stated the grounds for the suspension. Evaluation records can only be released if all four elements are met: (1) the officer was suspended or terminated; (2) the proceeding is administratively final; (3) the records formed a basis for the decision; (4) there is a compelling public interest in disclosure. The AG found all four were met. Officer Tate was suspended; the suspension was final; the records detailed the grounds; and the public has a compelling interest in disclosure of police misconduct records, especially given the public-trust nature of law-enforcement work.

So the City of Jonesboro custodian got it right on all three records. They are releasable.

What this means for you

Police officers who are the subject of a complaint

A citizen complaint about you is a personnel record from day one. Even if the department investigates and clears you, the complaint itself stays in the personnel record column and is presumptively releasable. The AG has been consistent on this for two decades. If the underlying conduct alleged is substantial (use of force, dishonesty, interaction with the public), the public-interest side of the balancing test usually wins.

If you've been suspended in connection with the complaint, the related "Performance Notice" and suspension letter become evaluation records but cross the disclosure threshold. The four-part test for evaluation records actually gets easier to satisfy when the subject is law enforcement, because the AG treats officers as occupying a position of "significant public trust" that almost always supports a "compelling public interest" finding.

You can ask the AG to review under A.C.A. § 25-19-105(c)(3)(B)(i). The AG opinion is advisory but is the standard reference custodians follow.

Police chiefs and supervisors

When you write a Performance Notice or a suspension letter, write it knowing that the document will likely become public if the underlying discipline is anything more than a minor warning. Be specific about the alleged conduct, the evidence relied on, and the policy violated. Vague or boilerplate discipline letters either fail to ground the discipline (a problem in any subsequent civil-service hearing) or give the public an unhelpful and possibly misleading picture if released.

The AG's opinion that police-suspension letters are releasable when they state the grounds is settled. Don't draft policy assuming you can keep the substance under wraps.

Records custodians

The classification call (personnel record vs. evaluation record) drives the analysis. Apply this rule of thumb: did the employer create or commission the document to assess the employee? If yes, it's evaluation. If no, it's personnel. A citizen complaint comes from outside the employer, so it's personnel. A supervisor's "performance notice" to the employee is evaluation. A suspension letter that explains the grounds is evaluation.

For the evaluation records, walk all four prongs. Don't skip the compelling-public-interest analysis. The AG and the leading commentators (Watkins et al.) have laid out factors: nature of the infraction (especially violations of public trust or gross incompetence), existence of related public controversy, and the employee's rank within the agency. Law-enforcement records almost always satisfy the compelling-interest prong; lower-profile administrative employees may not.

Citizens who file complaints against police officers

The complaint you file becomes a public record. Your name, address, and other contact information will normally be redacted under A.C.A. § 25-19-105(b)(13), but the substance of your complaint and what happened to it are public. If the officer was disciplined and that discipline became final, the discipline records are also typically public.

Journalists covering police accountability

This opinion is the kind of citation you can use in a FOIA appeal letter. The AG has restated the standard rule: citizen complaints about police = personnel records, and police suspension letters with stated grounds = releasable evaluation records when the suspension is final. If a department is sitting on records like these, that's a strong angle to push back on.

Common questions

Q: What if the officer wasn't disciplined? Are the records still releasable?

The citizen complaint form (a personnel record) is still typically releasable, with a redaction of the complainant's contact info. The performance notice or any internal-affairs report (evaluation records) usually aren't, because the four-part test requires suspension or termination, and you don't have that here. Watch out though: if the officer resigned in the face of "certain, impending termination," the AG treats that as constructive termination and the test can still be met.

Q: The suspension letter we issued doesn't state the grounds. Is it still releasable?

The AG only treats a suspension letter as an evaluation record when it "states the grounds for the suspension." A bare letter that says "you are suspended" without explanation is closer to a personnel record. But that's an unusual and probably ill-advised way to discipline someone, and most personnel-policy structures require stated grounds. Don't try to evade FOIA by writing thin discipline letters; you'll lose in civil service appeal.

Q: Why does law enforcement get treated differently from regular city employees on the compelling-interest prong?

The AG cites a long line of opinions saying officers are invested with a "significant public trust" because they carry weapons, can detain and arrest, and use force on behalf of the state. The accountability interest scales with that trust. A janitor's performance evaluation rarely clears the compelling-interest bar; an officer's nearly always does.

Q: Doesn't the officer have a privacy interest in his discipline being kept private?

He has some privacy interest, but the FOIA balancing test puts a thumb on the scale for disclosure. For police, the public interest in knowing about misconduct is substantial enough that it almost always tips. The AG explicitly said the citizen complaint's privacy interest is "far outweighed" by the public interest.

Q: How do citizens find out the outcome of a complaint they filed?

You can file a FOIA request to the agency. Cite A.C.A. § 25-19-105(c)(1) and ask specifically for any final disciplinary record relating to your complaint. If the agency declines, you can ask the AG for review under A.C.A. § 25-19-105(c)(3)(B)(i), or sue under the FOIA.

Background and statutory framework

The Arkansas Freedom of Information Act covers two kinds of employee-related records, with different release tests. The split traces to A.C.A. § 25-19-105(b)(12), which exempts personnel records to the extent disclosure would constitute a "clearly unwarranted invasion of personal privacy," and § 25-19-105(c)(1), which sets a four-part test for releasing evaluation records.

The classification (personnel record vs. evaluation record) was clarified by the Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, which approved the AG's three-part definition of evaluation records: (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance on the job. Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466, reaffirmed that approach.

The personnel-record test has its roots in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), with the "thumb on the scale" comment from Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). The four-part evaluation-record test is statutory in § 25-19-105(c)(1) plus AG opinions interpreting "compelling public interest." The leading academic source the AG cites is Watkins, Peltz, Vinson, and Carolan, The Arkansas Freedom of Information Act (6th ed. 2017), which lists factors for compelling-interest analysis.

The AG opinions distinguishing citizen complaints from internal investigations have been consistent for at least two decades. See AGOps. 2001-123, 2000-166, 98-130, 98-001, 96-257. The principle is that the agency's later investigation doesn't transform a third-party document into something the agency created.

The "constructive termination" doctrine, which is relevant when an officer resigns in lieu of being fired, comes from a separate line of AG opinions including 2024-045, 2023-077, 2012-019, and 2011-084. It's not at issue in this opinion because Officer Tate was actually suspended, not constructively terminated.

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public record)
• A.C.A. § 25-19-105(b)(12) (personnel records / clearly unwarranted invasion of personal privacy)
• A.C.A. § 25-19-105(b)(13) (personal contact information of public employees)
• A.C.A. § 25-19-105(c)(1) (four-part test for evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to request AG review)
• A.C.A. § 25-19-105(f) (redaction of exempt portions)
• Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
• Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-045
June 17, 2025

Officer Will Tate
Via email only: [email protected]

Dear Officer Tate:

You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the subject 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 stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

According to correspondence our office received from the records custodian, the City of Jonesboro received a FOIA request for your "personnel file and any IA documents associated with a 2023 use of force on Lana Turner." The custodian has provided me with unredacted copies of three records she intends to release: a citizen-complaint form and two disciplinary records. The custodian has classified the citizen-complaint form as a personnel record, and she has classified the two disciplinary records as employee evaluations. You object to the release of these records, and you ask if the custodian's decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian has correctly classified the citizen-complaint form as a personnel record that is subject to release. The custodian has also properly classified the disciplinary records as employee-evaluation records. And because the four-part test for release of employee-evaluation records appears to be met, the custodian's decision to release those records is also consistent 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 Jonesboro, 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. 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.

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 "employment evaluation or job performance record" and then apply the appropriate test for that record to determine whether the record should be release under the FOIA.

2. Personnel records. A personnel record is open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 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. The balancing test, which takes place "with the scale tipped in favor of public access," has two steps.

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 minimal privacy interest. 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.

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. 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.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that must be redacted. 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.

3. Employee-evaluation records. The second relevant exception is for "employee evaluation or job performance records," which 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. "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:

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
4. 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.

4. Classification and disclosure of the citizen-complaint form. An unsolicited complaint about a public employee that is generated by a third party unaffiliated with the employer is a personnel record. It is not transformed into an employee-evaluation or job-performance record by virtue of any subsequent investigation. Here, the custodian has correctly classified the citizen-complaint form as a personnel record because the document relates to you but was not created by or at the behest of the employer to evaluate you.

A personnel record must be released when the public's interest in the record outweighs the employee's privacy interest in the document. 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. Thus, the custodian's decision to release the document is consistent with the FOIA.

5. Classification and disclosure of the disciplinary records. In my opinion, the custodian has correctly classified the two disciplinary records as employee evaluations. One of the records, titled "Performance Notice," was clearly created by the employer to evaluate you, and it details your performance or lack of performance on the job. The other disciplinary record is a suspension letter. This office has consistently opined that a suspension letter qualifies as an evaluation record when it states the grounds for the suspension. Because the suspension letter recounts the specific reasons for the suspension, it qualifies as an employee-evaluation record.

The four-part test for release of these employee-evaluation records also appears to be met because (1) you were suspended; (2) the suspension appears to be final; (3) the records detail the grounds for suspension; and (4) there is a compelling public interest in disclosure of the records in question. Therefore, the custodian's decision to release these disciplinary records is also consistent with the FOIA.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General