When a Prairie Grove police officer resigns instead of being fired, what parts of his personnel file (administrative records, performance evaluations, a written reprimand, and IA investigative records) can the public see under FOIA?

Subject

Whether the Prairie Grove Police Department's decision to release the personnel file of a former officer (administrative records, performance evaluations, a written reprimand, and IA investigative materials) is consistent with the Arkansas FOIA.

Plain-English summary

Chief Chris Workman of the Prairie Grove Police Department asked the AG to review the records custodian's release decision. Someone had FOIA'd a former officer's personnel file. The custodian planned to release everything. The former officer objected, especially to records concerning text messages "because he was not disciplined on that and he resigned."

The custodian had grouped the records into four categories: administrative records (employment application, code of ethics, training certificates, résumé, leave spreadsheets, etc.), performance evaluations, a 2018 written reprimand, and investigative documents (notes on investigating the officer's performance, a phone-call spreadsheet, and a "Resignation Highlights" page).

The AG ruled differently on each category.

Administrative records. Personnel records, releasable, but with redactions the custodian had missed. The AG identified specific items to redact before release: date of birth and parents' names on the birth certificate, home address and phone number on a "Lowell Authorization to Release Information" form, address and date of birth on the "Certificate of Release or Discharge from Active Duty," date of birth on the photocopied driver's license and the CLEST Initial Employment Report, spouse's name on emergency contact, marital status and family names on "Line-of-Duty Death Information," driver's license number, date of birth, and home address on the employment application, and date of birth and home address on the "Application for Training." Phone numbers of private-sector job references should NOT be redacted (they're not personal contact info of a public employee). Some redactions were also done with a marker that allowed the underlying text to be seen; the custodian needs to fix that.

Performance evaluations. Employee-evaluation records. The first prong of the four-part test (suspension or termination) is potentially met if the resignation was constructive, and the second prong (finality) is met because the officer left in 2019. But the third prong (relevance) fails: these particular performance reviews didn't form the basis for the (potential) constructive termination. So they must be withheld.

Written reprimand (March 4, 2018). Employee-evaluation record. The four-part test fails because the reprimand wasn't itself a suspension or termination. The letter says: "You are hereby given a written reprimand … further violations will result in further disciplinary action." That's a warning, not adverse action that triggers the FOIA disclosure pathway. So the written reprimand must be withheld.

Investigative records (notes, phone-call spreadsheet, "Resignation Highlights"). Employee-evaluation records. The custodian needs to determine if the resignation was in the face of certain, impending termination (constructive termination). Chief Workman's email to the AG strongly suggests that's exactly what happened: "All of this documentation and the messaging led us to the point we were going to terminate [the officer], but he resigned when we brought him in so he was not officially disciplined." If the custodian agrees, prong 1 is met. Prong 2 is met because the officer left in 2019. Prong 3 is met because these records were the basis for the termination push. Prong 4 (compelling public interest) is virtually always met for police misconduct records. So if the custodian finds constructive termination, the IA records should be released.

What this means for you

Police chiefs at small departments

Chief Workman's email is a useful template. He laid out the factual narrative for the AG: the officer faced certain, impending termination; the documentation supported that; he resigned at the meeting where he would have been fired. That clarity is what lets the AG say the four-part test for IA records is met.

When you're sitting on records that look like a constructive termination, document the sequence: (1) what conduct triggered the action, (2) what documentation accumulated, (3) what was the meeting at which termination was going to be imposed, (4) when did the officer resign in relation to that meeting. A clean narrative in the file makes the FOIA analysis straightforward.

Records custodians

This opinion is a checklist for what to redact in administrative records:

• Date of birth (everywhere it appears, including on driver's license photocopies, military DD-214s, CLEST forms, employment applications, training applications)
• Home address (everywhere)
• Personal phone numbers (everywhere)
• Marital status, spouse's name, dependent/child names
• Names of parents (the AG specifically called out parents on the birth certificate)
• Driver's license numbers
• Personnel/identification numbers used for computer security
• Social security numbers, banking, net pay, withholdings, deductions

Phone numbers of private-sector job references are NOT redacted. Phone numbers of public-employee job references ARE redacted under § 25-19-105(b)(13). That's a tricky distinction; the AG noted you have to know whether each reference is in the private or public sector.

Also: do your redactions properly. The AG flagged that "[s]everal of the redactions made on various records were done with a marker in such a way that allows one to still see the 'redacted' information." If a redaction can be read through, it isn't a redaction. Use opaque marker, scan, or use redaction software.

Officers facing pressure to resign

If you are about to be terminated and choose to resign at the termination meeting, the AG treats that as a constructive termination. Your IA file becomes a public record under the FOIA. The "I just resigned, I wasn't disciplined" defense doesn't work to block disclosure, because the test looks at substance, not the form of the separation.

What does change the analysis is whether you actually had a chance to contest. If you proceed through the full administrative hearing, you're in a different posture. If the proceeding is overturned or the discipline is reduced, the records that "formed the basis" for the discipline may not satisfy prong 3 (relevance) anymore.

FOIA requesters seeking a small-department officer's file

This opinion is a good template. You'll typically get back: administrative records (releasable with personal-info redactions), and IA records that document the basis for any termination push. Records that were merely warnings (written reprimand) or didn't lead anywhere disciplinary (mid-career performance evaluations) usually stay private.

Anyone tracking police accountability in Arkansas

The "constructive termination" doctrine is doing a lot of the work here. Most officers who are about to be fired don't actually go through a full termination proceeding; they resign first. If the AG had read the test literally to require a formal termination, almost no IA records would ever become public. The constructive-termination doctrine collapses that loophole and is now consistent across multiple opinions.

Common questions

Q: Why is the written reprimand kept private but the IA records released?

The four-part test for evaluation records keys on whether the records "formed a basis for the decision … to suspend or terminate." A written reprimand is itself a discipline, but it isn't a suspension or termination. So the records "form the basis" of a reprimand, not of a termination. By contrast, the IA notes and phone-call spreadsheet here led to the termination push, so they "form the basis" for the (constructive) termination, and the four-part test is met for them.

Q: The officer wasn't formally terminated. Why is the AG saying his IA records may be public?

Because of the constructive-termination doctrine. The AG looks at substance, not form. If the officer was facing imminent termination and resigned at the termination meeting, that resignation is treated as the equivalent of a termination for FOIA purposes. The agency can't shield IA records by letting the officer resign first.

Q: We didn't redact phone references. Are we exposed?

Depends on whether the references are public employees or private-sector. Public employees' personal contact info is exempt under § 25-19-105(b)(13). Private-sector references' phone numbers are NOT exempt. The AG specifically said this: "to the extent that the phone numbers of job references listed are employed in the private sector, such numbers should not be redacted." So you may have over-redacted, not under-redacted.

Q: Our markers bled through. Do we need to redo redactions?

Yes. The AG flagged this exact issue: "Several of the redactions made on various records were done with a marker in such a way that allows one to still see the 'redacted' information. The custodian will want to review all redactions to ensure that the redacted information cannot still be seen." If you can read the underlying text under good light, the redaction failed. Re-do them with proper opaque marker, or scan the documents and use software to redact.

Q: What if we'd given the officer the suspension and continued him in employment?

A "suspension" satisfies prong 1 of the test the same way a termination does. So if you had suspended this officer and the suspension became final and the IA records formed the basis for it, those IA records would be releasable. The trick is that the four-part test then requires a written suspension that states the grounds (per the AG's prior opinions, e.g., 2001-276), and a final administrative resolution.

Background and statutory framework

Same statutory framework as the other 2025 FOIA opinions in this corpus: A.C.A. § 25-19-105(b)(12) (personnel records, with the "clearly unwarranted invasion of personal privacy" standard); A.C.A. § 25-19-105(c)(1) (four-part test for evaluation records); A.C.A. § 25-19-105(c)(3)(B)(i) (right to AG review).

The classification authority is Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The personnel-record balancing test is from Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

The constructive-termination doctrine is well-developed in AGOps. 2024-045, 2023-077, 2012-019, and 2011-084. The categorization of written reprimands as evaluation records (and the inability to release them absent suspension or termination) is in AGOps. 2009-146, 2008-135, 1997-261, 1993-105, 1992-231, 1991-324. Treatment of IA records as evaluation records is in AGOps. 2007-311 and 2004-178.

The redaction-list framework cited in this opinion is the same the AG uses in other 2025 FOIA opinions: contact info under § 25-19-105(b)(13); personnel/identification numbers under § 25-19-105(b)(11); marital status, dependents, dates of birth, social security numbers, driver's license numbers, insurance, tax info, payroll deductions, net pay, banking, and "intimate financial detail" under § 25-19-105(b)(12) read with Young's balancing test.

The administrative records the AG explicitly listed as personnel records subject to disclosure (with appropriate field-level redactions) include: interview scores of successful applicants, employment-confirmation records, dates of hire, birth certificates in personnel files, education background, training and certifications, employment contracts, employee names, salaries, payroll records, and general resignation letters.

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public record)
• A.C.A. § 25-19-105(b)(11) (computer-security/personal identification numbers)
• A.C.A. § 25-19-105(b)(12) (personnel records)
• 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/custodian's/requester's right to AG review)
• A.C.A. § 25-19-105(f) (redaction of exempt portions)
• Legislative Joint Auditing Committee v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
• 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)

Source

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

Original opinion text

Opinion No. 2025-049
June 23, 2025

Chief Chris Workman
Prairie Grove Police Department
Post Office Box 1033
Prairie Grove, Arkansas 72753

Dear Chief Workman:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made on behalf of the custodian of 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.

You report that someone requested a copy of a former police officer's personnel file from the Prairie Grove Police Department. The custodian identified certain employee records as responsive to this request, and the custodian intends to disclose all of those records. You ask whether the custodian's decisions are consistent with the FOIA.

You have provided copies of the following employee records for my review (the records include both redacted and unredacted copies):

• Administrative records. These include the "Code of Ethics"; "Employee Pay Record"; training certificates; a résumé; a "Physical Training Form"; emergency contact information; a birth certificate; a Hepatitis B shot notice; a "Certificate of Release or Discharge from Active Duty" military; a copy of a driver's license; a "Commission on Law Enforcement Standards and Training Initial Employment Report" (with two copies, one completed by only the applicant and the other completed by both the applicant and the employer, with a fax coversheet attached); a "Line-of-Duty Death Information" form; a 2018 "Annual Leave" spreadsheet; an Office of Alcohol testing "Operator Card"; a high school diploma; a signed "Employee Statement"; a signed checklist of issued and returned items; copies of candidate interview evaluation forms; "Receipt for Policy and Procedure Manual"; a signed background-check form for employment; a "Firearms Information Form"; a "Uniform Size Form"; a new hire check list; a request and response for applicant fingerprinting; a letter of resignation; completed applicant exam questions; an employment application; an "Application for Training"; officer notes concerning a December 2, 2006 incident; and an "Employment Questionnaire."
• Employee performance evaluations. These concern multiple "Performance Evaluation" records (some only include page "1 of 2," lacking the second page).
• Written reprimand. This concerns a March 4, 2018 reprimand letter.
• Investigative documents. These concern notes on investigating the performance of the employee; a spreadsheet of incoming and outgoing phone calls; and a "[R]esignation Highlights" page reviewing the performance of the former employee.

The subject of the records objects to the release of certain records concerning text messages because he "was not disciplined on that and he resigned."

RESPONSE

The Prairie Grove Police Department's custodian of records has determined that the records should be released with certain redactions. The custodian's decision to release the records is partially correct under the FOIA: while the custodian may properly release the administrative records subject to redactions, the custodian should withhold from release the written reprimand and performance evaluations. And if the custodian determines that the former employee resigned in the face of "certain, impending termination," the investigatory records should be disclosed.

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

The first two elements appear to be met here. The request was made to the Prairie Grove Police Department, 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. I have no information, however, to suggest that the presumption can be rebutted, and I will thus turn to whether any exemptions prevent the documents' release.

For purposes of the FOIA, employees' personnel files 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. Administrative records. In my opinion, the administrative records are best categorized as "personnel records," and the custodian's decision to disclose the administrative records is consistent with the FOIA's treatment of "personnel records." Public records are "personnel records" when (1) they pertain to an individual employee, as each document within the set of administrative records does; and (2) they are not an employee-evaluation or job-performance record (created by or at the behest of the employer to evaluate the employee). Although each administrative record appears to have been created by the employer, these records do not provide details or specifics concerning the former employee's performance or lack of performance as a law-enforcement officer. So the documents that make up the set of administrative records are best classified as "personnel records."

Personnel records are 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 a thumb on the scale in favor of disclosure, has two steps.

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. 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.

This office has consistently opined that the following are personnel records subject to disclosure under the FOIA: interview scores of a successful job applicant; documents that confirm someone's employment; dates of hire; birth certificates in the personnel files of public employees; general education background, including schools attended and degrees received; training and certifications; employment contracts; employee names, salaries, payroll records; and general resignation letters. Therefore, the custodian's decision to release these administrative records as "personnel records" is consistent with the FOIA.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted, such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses), employee personnel numbers or identification codes; marital status of public employees; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; names of children, spouses, and ex-spouses; net pay; banking information; and other financial "records that would divulge intimate financial detail."

On the birth certificate, the former employee's date of birth and names of his parents are not redacted, but they should be. Additionally, the following information is not currently redacted from the records but should be: what appears to be the former employee's home address and phone number on the City of Lowell "Authorization to Release Information" form; the former employee's address, date of birth, and mother's name on the "Certificate of Release or Discharge from Active Duty"; the former employee's date of birth on the driver's license; the former employee's date of birth on the "Commission of Law Enforcement Standards and Training Initial Employment Report"; the name of a spouse on the "Emergency Contact Information" form; the "Contact Phone Number" on both copies of the "Commission of Law Enforcement Standards and Training Initial Employment Report," to the extent that it is a personal phone number of the former public employee; the marital status, spouse's name, child's name, and mother's name on "Line-of-Duty Death Information"; the former employee's driver's license number, date of birth, and home address on the "Employment Application"; and the former employee's date of birth and home address on the "Application for Training."

The phone numbers of job references listed on either a résumé or job application are subject to disclosure under the FOIA and cannot be redacted. If a job reference is a nonelected public employee, and their personal contact information is "contained in employer records," then such personal contact information should be redacted. But if the job reference is employed in the private sector, his or her personal contact information, such as addresses and telephone numbers, is not exempt from disclosure. Thus, to the extent that the phone numbers of job references listed are employed in the private sector, such numbers should not be redacted.

Several of the redactions made on various records were done with a marker in such a way that allows one to still see the "redacted" information. The custodian will want to review all redactions to ensure that the redacted information cannot still be seen.

3. Employee performance evaluations. An employee-evaluation record is a record created by or at the behest of an employer; to evaluate the employee; and that details the employee's performance or lack of performance on the job. The employee performance evaluations here meet those requirements and must be withheld 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.

The first question, then, is whether the former employee was suspended or terminated. The former employee was not suspended, and he resigned from the position before he could be terminated. But 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. Your email states, "All of this documentation and the messaging led us to the point we [were] going to terminate [the officer], but he resigned when we brought him in so he was not officially disciplined." Your email strongly suggests that the former officer resigned in the face of "certain, impending termination," so the first element is likely met. But I am not a factfinder when issuing opinions. It is up to the custodian to make this determination.

If the custodian determines that the former employee's resignation was voluntary, then the evaluation records must be withheld from release because the first element of the test has not been met. But if the custodian determines that the resignation amounted to a constructive termination, the custodian proceeds to the second element of the test: determining whether the suspension or termination is final. Because the former officer left the Prairie Grove Police Department in late 2019, it does not appear that there are any pending appeals, and the second element of the test would be met.

With respect to the third element, relevance, these evaluation records do not appear to have formed the basis for what was potentially a constructive termination. Therefore, it is my opinion that these performance review records are not subject to release because this third element has not been met.

4. Written reprimand. Among the documents you have provided for my review is a March 4, 2018 written reprimand signed by a supervisor. This office has consistently opined that employee-evaluation and job-performance records include "written reprimands … [and] letters of caution." That is the case here. Therefore, this written reprimand cannot be released unless all the following elements have been met: suspension or termination; administrative finality; relevance; and compelling interest.

The written reprimand does not meet the requirements of disclosure because the employee was not suspended or terminated based on the contents of the letter. Although this letter provides reasons for the reprimand, it does not reflect adverse employment action that goes beyond just a written warning: "You are hereby given a written reprimand" but "further violations will result in further disciplinary action." Therefore, the March 4, 2018 written reprimand should not be disclosed under the FOIA.

5. Investigative records. As this office has consistently concluded, records in an internal affairs file that have been generated at the behest of the employer while investigating a complaint against an employee (evaluating the employee and detailing performance or lack of performance on the job) constitute employee-evaluation or job-performance records. Thus, because the letter, notes, and phone call spreadsheet were generated by or at the behest of the employer in the course of investigating complaints, they are best classified as employee-evaluation or job-performance records. These employee-evaluation or job-performance records cannot be released unless the four previously discussed elements for disclosure have been met.

As explained above in the section regarding employee performance evaluations, if the custodian determines that the former officer resigned in the face of "certain, impending termination," the officer's resignation would be considered a constructive termination, and the first element would be met. Likewise, because the former officer left Prairie Grove Police Department in 2019, the second element of the test, finality, would also be met.

With respect to the third element, relevance, it is my understanding that the investigative records generated while investigating the employee formed the basis for the employer's decision to terminate him. If this is the case, the third element of the test would be met as well.

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, and I am not equipped or authorized to undertake such a factual inquiry. But this office has consistently opined that 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 violations of office policy. Consequently, I believe that the custodian could reasonably determinate that the compelling public interest element of this test has been met.

In sum, if the custodian determines that the former officer was constructively terminated from his employment with the Prairie Grove Police Department, the investigative records that formed the basis for the Department's decision to terminate him should be disclosed.

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

Sincerely,
TIM GRIFFIN
Attorney General