If a North Little Rock police officer was recommended for termination but resigned first, then was decertified by the state and later recertified, can the public see the internal affairs investigation records under FOIA?
Subject
Whether the North Little Rock Police Department records custodian's decision to release a former officer's internal-affairs investigation file with most pages redacted is consistent with the Arkansas FOIA.
Plain-English summary
John Huett asked the AG to review a North Little Rock Police Department FOIA response. He had requested "the full IA investigation" of a particular officer. According to Huett, the officer was recommended for termination but resigned instead, was decertified by the Commission on Law Enforcement Standards and Training (CLEST) on resignation, and then was later recertified and is now serving again as a full-time officer.
The custodian gave Huett five pages, with four of those pages redacted as exempt under A.C.A. § 25-19-105(c)(1) (the four-part test for evaluation records). The custodian did not provide the AG with unredacted copies, which limited the AG's ability to issue a categorical ruling.
The AG ran through the four-part test:
(1) Suspension or termination. The officer wasn't suspended, and he resigned before he could be fired. But under a long line of AG opinions, a resignation offered in the face of "certain, impending termination" counts as a "constructive termination" that satisfies the first prong. The unredacted page Huett got back was titled "Consideration of Termination and Right to Administrative Hearing," which strongly suggests the resignation was indeed in the face of imminent termination. The AG can't make that factual finding; the custodian has to. But the documentary evidence points that way.
(2) Finality. The officer left in April 1999, and there are no pending appeals. This prong is met.
(3) Relevance. The unredacted page documents the standards of conduct and criminal-law violations the officer was alleged to have committed. That suggests the records were the basis for the (potentially constructive) termination. The AG couldn't evaluate the redacted pages without seeing them, but if those pages also document the basis for termination, prong three is met.
(4) Compelling public interest. Law-enforcement officers are invested with significant public trust. Records reflecting an officer's violations of office policy and criminal law clearly satisfy the compelling-interest prong. This is met for the unredacted page and would be met for any redacted page that contains similar content.
The bottom line: if the custodian determines the officer was constructively terminated, the investigative records that formed the basis for that termination should be disclosed. The AG specifically did not address Huett's separate question about whether a FOIA exemption survives an officer's later recertification, because that question fell outside the AG's authority under A.C.A. § 25-19-105(c)(3)(B)(i).
What this means for you
Records custodians at police departments
The "constructive termination" doctrine matters and you need to apply it consistently. If an officer resigns while facing imminent termination, the AG treats the resignation as functionally equivalent to a firing for purposes of the four-part test. That collapses the gap that resignations have historically created in police-accountability records. If your IA records were the basis for the termination push that led to the resignation, those records are likely releasable.
You also need to actually provide unredacted records to the AG when seeking review. The AG can't bless redactions on records he hasn't seen. The opinion here is more conditional ("if the custodian determines X, then release Y") than it would have been with unredacted records in front of the AG. Don't shortchange the review process; provide what's needed.
Police chiefs and command staff
Internal-affairs files that document termination-grade misconduct will typically become public when the officer leaves under those circumstances. Plan investigations with that in mind. Document the policy and criminal-law violations clearly; document the disposition; document whether the officer was offered the choice to resign or be terminated. The cleaner the paper trail, the cleaner the eventual FOIA disclosure decision.
Officers facing potential discipline
A resignation doesn't reliably keep your IA file private. If you're being told you'll be terminated and choose to resign, the AG treats that as a "constructive termination" for FOIA purposes, and the IA records that supported the termination push are likely public. Your best protection is procedural: insist on the full administrative hearing process if you want to contest the underlying findings. The hearing record is itself an evaluation record, but a contested-and-overturned proceeding can fail prong 3 (the records didn't form the "basis" for the discipline if the discipline was overturned).
The decertification + recertification cycle does not appear to change the analysis. CLEST proceedings are separate from the employer's discipline records. If you were recertified later, the original IA records still document conduct that supported the prior termination, and the public-interest analysis still points to disclosure.
Journalists and FOIA requesters
If a department withholds IA records on the ground that the officer "resigned and wasn't terminated," push back. Cite this opinion and the constructive-termination doctrine. Ask the department whether the officer resigned in the face of certain, impending termination, and ask for the documents that show what disciplinary action was being considered (a "Consideration of Termination" memo, a Loudermill notice, a recommendation to terminate from a supervisor). Those documents are themselves probative of the constructive-termination question.
CLEST decertification questions
The opinion explicitly does NOT decide whether a FOIA exemption survives an officer's later recertification. That's a separate legal question. If you're trying to get records on an officer who has cycled through decertification and recertification, you may need to file a request for declaratory relief in court rather than relying on an AG opinion under § 25-19-105(c)(3)(B)(i).
Common questions
Q: What is "constructive termination" under Arkansas FOIA law?
It's a resignation that the AG treats as the equivalent of a firing because the resignation was offered "in the face of 'certain, impending termination.'" The AG has applied this rule consistently in opinions including 2024-045, 2023-077, 2012-019, and 2011-084. The key factual question is whether the employer was on the verge of imposing termination when the employee resigned. Documents like a "Consideration of Termination" notice are direct evidence of this.
Q: What proof is enough to show "certain, impending termination"?
The AG won't make the factual finding. The custodian decides, based on documents like a recommendation to terminate, a Loudermill / pre-termination notice, internal communications saying the employer intended to fire the employee, or an offer to allow resignation in lieu of termination. The presence of a "Consideration of Termination and Right to Administrative Hearing" document is probably sufficient.
Q: The officer left in 1999. Is the file too old to release?
No. FOIA doesn't have a sunset clause. If the records were responsive to the request and the four-part test is met, they're releasable regardless of age. The age of the file may affect privacy analysis at the margins (truly stale records sometimes raise different concerns), but for IA records on stated misconduct, the answer is the same.
Q: The officer was decertified, then recertified. Does that affect FOIA?
The AG punted on this question because it falls outside the scope of § 25-19-105(c)(3)(B)(i). Decertification and recertification are CLEST proceedings, separate from the employing agency's discipline records. The FOIA analysis here turns on the original employing agency's records and what they show.
Q: Why didn't the AG just look at the redacted pages himself?
Because the custodian didn't provide unredacted copies. The AG can't bless or rule against a redaction he hasn't seen. The custodian should have submitted the unredacted records under § 25-19-105(c)(3)(B)(i)'s review framework, which contemplates the AG seeing the records in their unredacted form to make a recommendation.
Q: What if the redacted pages turn out to NOT have formed the basis for the termination?
Then prong 3 (relevance) fails, and those pages stay redacted. The AG was careful to leave that possibility open. Internal affairs files often contain peripheral material (witness statements that didn't pan out, personnel-only data, unrelated incidents) that wouldn't satisfy the relevance prong even if the broader file did.
Background and statutory framework
The four-part test for releasing employee-evaluation records is codified at A.C.A. § 25-19-105(c)(1): records "shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure." That language gives the four prongs (level of discipline, finality, relevance, compelling interest).
The "constructive termination" gloss is a creation of AG opinions interpreting "termination." If a resignation were always treated as voluntary, an employee facing imminent firing could resign and permanently shield the underlying IA records. The AG has refused to read the statute that way. As long as the resignation was offered in the face of "certain, impending termination," it satisfies the level-of-discipline prong. AGOps. 2024-045, 2023-077, 2012-019, 2011-084 are the lead opinions establishing and applying the doctrine.
The "compelling public interest" prong has a separate body of AG analysis. Law-enforcement officers occupy a special position because of the public trust they hold. AGOps. 2023-071, 2023-013, 2014-129, and 2006-026 reflect the consistent view that records of police misconduct usually clear the compelling-interest bar. The factors the leading commentators (Watkins et al.) identify, nature of the infraction, public controversy, and rank, are typically present in police IA cases.
The Arkansas Supreme Court approved the AG's three-part definition of evaluation records in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The Arkansas Court of Appeals reaffirmed in Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466. Both opinions support the AG's analytical framework.
CLEST decertification, the separate question Huett raised, is governed by a different statutory scheme. CLEST regulations and proceedings are not directly addressed by the FOIA exemptions for employee-evaluation records, and an officer's later recertification doesn't undo the records of the original employer's discipline.
Citations
- A.C.A. § 25-19-103(7)(A) (definition of public record)
- A.C.A. § 25-19-105(b)(12) (personnel records)
- 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)
- 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
Source
Original opinion text
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-053
July 7, 2025
Mr. John T. Huett Sr.
Via email only: [email protected]
Dear Mr. Huett:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the requester 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.
You submitted a FOIA request to the North Little Rock Police Department for "the full [Internal Affairs] investigation" into a particular police officer. You report that the officer "was recommended for termination" but resigned instead. You further report that, upon his resignation, the officer was decertified by the Commission on Law Enforcement Standards and Training. Finally, you note that the Commission has "reinstated his certification" and the officer "is now once again a full-time, certified law enforcement officer."
In response to your FOIA request, the records custodian provided you with five pages of documents. The custodian has classified the documents as employee evaluations and has redacted four of the five pages as exempt under A.C.A. § 25-19-105(c)(1). I have not been provided with an unredacted copy of the documents. You ask if the custodian's decisions are consistent with the FOIA.
RESPONSE
The North Little Rock Police Department's custodian of records has determined that the records should be released with certain redactions. I cannot determine whether the custodian's decision to redact that information is consistent with the FOIA because I was not provided with an unredacted copy of the documents. As to your specific objections, and for reasons discussed in this opinion, the custodian should release the employment-evaluation records if (1) the former employee resigned in the face of "certain, impending termination," (2) the redacted records formed the basis for the "constructive termination," and (3) the public has a compelling interest in the records' disclosure.
DISCUSSION
- 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 North Little Rock Police Department, 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 distinct 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.
- Internal affairs investigation records. You have requested investigation records, which are best classified as "employee evaluation or job performance records" because they are created by the employer to evaluate the employee, and they 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:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
- The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).
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. You report that the former employee "was recommended for termination" but resigned instead. In addition, the unredacted page of the documents provided by the custodian is titled, "Consideration of Termination and Right to Administrative Hearing." This suggests that the former employee may have resigned in the face of "certain, impending termination," in which case the first element would be 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 employee left the North Little Rock Police Department in April 1999, it does not appear that there are any pending appeals, and the second element would be met.
With respect to the third element, relevance, the unredacted page of the documents evidences the standards of conduct and criminal law the former employee was alleged to have violated. So the unredacted page appears to have formed the basis for what was potentially a constructive termination. But I cannot opine regarding the redacted pages because I have not reviewed them. If they also contain information that formed the basis for what was potentially a constructive termination, then the third element would be met.
As for the final prong, the public has a compelling interest in the disclosure of the unredacted document because, as this Office has consistently opined, law-enforcement officers are invested with a significant public trust. And the unredacted page reflects the officer's violations of office policy and of criminal law, so there is a compelling public interest in that record. If the redacted documents also reflect violations of office policy or criminal law, there is a compelling public interest in their disclosure as well.
In sum, if the custodian determines that the former employee was constructively terminated from his employment with the North Little Rock Police Department, the investigative records that formed the basis for the constructive termination should be disclosed.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General