If a city's mayor fires an employee, the city council reverses that decision and reinstates the employee, and an outside investigator's report exists about the employee, can someone get the investigation report under FOIA?
Plain-English summary
The City of Tontitown ran into a complicated FOIA problem. The mayor terminated a city employee. Other employees had made allegations against that employee, so the city hired an outside employment investigator to look into the claims. The investigator wrote a report. Meanwhile, the city council overrode the mayor's termination under A.C.A. § 14-42-1109(a) and reinstated the employee. Then someone filed a FOIA request for the investigator's report.
The custodian withheld the report as an employee-evaluation record. The city attorney asked the AG whether that was the right call.
Attorney General Tim Griffin agreed with the custodian. The investigation report is an evaluation record because it was created at the city's request to evaluate the employee. Evaluation records can only be released when all four parts of the FOIA test are met. Here, the second part fails: the city's "termination" was not administratively final, because the council reinstated the employee. With finality missing, the report stays withheld.
The opinion also disposes of two arguments the requester made: (a) that the employee's consent or waiver should change the answer, and (b) that redacting names and health information should make the report releasable. Neither argument works. Evaluation records are exempt as a class. The subject's consent does not enable them, and partial redaction does not either; the FOIA flatly prohibits release until the four-part test is met.
What this means for you
If you are a city attorney advising on a FOIA request
Walk through the four-part test in writing. If finality is missing because of an appeal, override, or reinstatement, you have a complete answer for withholding. Document why finality is not met. The right rejection letter cites § 25-19-105(c)(1) and identifies the procedural step that defeats finality (in Tontitown's case, the council override under § 14-42-1109(a)).
Don't rely on partial-redaction arguments. The opinion is explicit that evaluation records are not subject to the redact-and-release approach that personnel records use; either the four-part test is met and the whole record comes out, or the record stays in.
If you are a city council that overrides a mayor's termination
Be aware that your override has FOIA consequences. By reinstating the employee, you reset the finality clock; the investigation report, the termination letter, and any other evaluation records tied to that firing become not releasable. If the underlying conduct gets re-investigated and ends in a future suspension or termination that becomes final, the records may then become subject to release.
If you are an investigator hired by a city or other public employer
The report you produce is an evaluation record under Arkansas FOIA. Whether it ever becomes public depends on what the employer does with it (suspension or termination), whether that action becomes administratively final, and whether the public-interest factor is met. Knowing that, write the report carefully. It may be sealed forever, or it may end up in the newspaper, depending on later events you cannot control.
If you are an employee of a public agency facing an investigation
Even if the investigation results in your firing, the report does not automatically become public. If you are reinstated through internal review, the record is not releasable while you are on staff. If you are fired and the firing is administratively final, the report can become public if the public has a compelling interest (more likely for senior, public-trust roles than for rank-and-file positions).
Your consent does not enable the record either way. The exemption belongs to the public agency, not to you.
If you are a FOIA requester or journalist
If the response to your evaluation-record request claims the action is "not administratively final," ask the custodian to identify the specific procedural step that has not yet finished (appeal, override, civil-service review). If no such step is pending, finality is present, and the four-part test may swing in your favor. If a step really is pending, file a follow-up request once it concludes.
Common questions
Q: What's the four-part test for releasing an employee-evaluation record under Arkansas FOIA?
A: Under A.C.A. § 25-19-105(c)(1), all four must be met: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution of the discipline; (3) the record formed the basis for the decision; and (4) the public has a compelling interest in disclosure.
Q: What does "administratively final" mean?
A: All available internal review (appeals, civil-service hearings, council overrides, contractual grievances) has either run its course or been waived/expired. If the review process can still reverse the discipline, the action is not yet final.
Q: Why doesn't the employee's consent matter?
A: The exemption is structural; it protects the formal job-evaluation process so that employers and employees can have honest exchanges about performance without fear of public exposure. The interest is the agency's, not the employee's, so the employee cannot waive it. Prior AG opinion 2020-004 made this explicit.
Q: What about the other employees' health information that's in the report?
A: The opinion notes that the requester proposed redacting names and protected health information. The AG explained that redaction is not the right tool for evaluation records. The FOIA expressly contemplates redacted release of personnel records (§ 25-19-105(f)), but evaluation records have a different rule: either all four elements of the test are met and the record is released, or none of it is.
Q: Does this mean the investigator's report can never be released?
A: Not necessarily. If the city later takes another disciplinary action against the same employee that becomes administratively final, the report could become releasable then if the other elements of the four-part test are met. But that depends on facts that have not happened yet.
Q: What's a council override under A.C.A. § 14-42-1109(a)?
A: A statute that lets a city council reverse certain personnel actions taken by the mayor by a vote. When that happens, the underlying personnel action is not final.
Background and statutory framework
Arkansas's FOIA divides personnel-related records into two camps. "Personnel records" are open by default subject to a privacy-balancing test that favors disclosure. "Employee-evaluation or job-performance records" are closed by default and only release-able when the four-part test of § 25-19-105(c)(1) is met. The case law (especially Thomas v. Hall and Davis v. Van Buren School District) defines evaluation records as those (1) created by or at the employer's direction (2) to evaluate the employee (3) detailing performance or lack of performance.
Investigative reports about alleged misconduct are routinely classified as evaluation records when they are created at the employer's request specifically to assess the employee. Long line of AG opinions agree.
The four-part test was built to balance two interests: the public's interest in seeing how government employers handle misconduct, and the institutional interest in keeping the evaluation process candid. The finality requirement (the second part) is what protects pending personnel actions from being prematurely exposed; until the action is final, the record stays in.
The Tontitown opinion also confirms two important corollaries that come up in many FOIA disputes: the employee cannot consent around the exemption, and redaction is not a substitute for satisfying the four-part test.
Citations and references
Statutes:
- A.C.A. § 14-42-1109(a) (city council override of mayor termination)
- A.C.A. § 25-19-103(7)(A) (public records definition)
- A.C.A. § 25-19-105(b)(12) (personnel records exception)
- A.C.A. § 25-19-105(c)(1) (evaluation records four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (opinion-request authority)
- A.C.A. § 25-19-105(f) (redaction authority)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012)
- Pulaski Cnty. 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 (2012)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (2019)
Prior AG opinions cited:
- Ark. Att'y Gen. Ops. 2024-095, 2023-120, 2020-028, 2020-004, 2015-072, 2015-057, 2009-067, 2006-038, 2004-012, 2003-073, 99-147, 96-168, 95-351, 93-055, 2008-065, 2005-095
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-080
August 25, 2025
Mr. R. Justin Eichmann
Harrington, Miller, Kieklak, Eichmann & Brown
4710 South Thompson, Suite 102
Springdale, Arkansas 72764
Dear Mr. Eichmann:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the attorney for 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 the City of Tontitown has received a FOIA request for an "investigation report" of an employee who was terminated by the Mayor but then "reinstated... by the City Council through an override of that action [under A.C.A.] § 14-42-1109(a)." You also report that during that process, "several allegations were made against [the employee] by some other employees and the Mayor." At that point, the city "hired an employment investigator to investigate the other employees' claims," and the investigator issued a report at the investigation's conclusion. The investigation did not result in the employee's termination or suspension.
The FOIA request seeks a copy of this investigation report. The custodian has classified the report as an employee evaluation, and the custodian has determined that it is exempt from disclosure because "the final administrative resolution... did not result in [the employee's] termination or suspension." The employee who was investigated does not object to the release of the report, but the employees who instigated the investigation object to its release, in part, because the report includes their health information. The requester insists that the report can be released if (1) the employee who was investigated "waive[s] or consent[s] to the release" and (2) "employee names and health-related information" are redacted from the report. You ask if the custodian's decisions are consistent with the FOIA.
RESPONSE
In my opinion, the custodian has correctly classified the investigation report as an employee-evaluation record, and the custodian has properly determined that the report is exempt from disclosure. Because the employee's termination was not administratively final, the four-part test for release of an employee evaluation does not appear to be met.
Further, an employee evaluation cannot be disclosed unless each element of the four-part test is met. Waiver or consent by the employee at issue cannot overcome this prohibition. Likewise, redacting employee names and protected health information does not make the report releasable.
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 City of Tontitown, a public entity subject to the FOIA. And the record at issue appears to be a public record. Because the record is held by a public entity, it is presumed to be a public record, 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 document's 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 released under the FOIA.
- Investigation report. The investigation report is best classified as an "employee evaluation or job performance record" because it was created at the behest of the employer to evaluate the employee, and it details the employee's performance or lack of performance on the job. Employment evaluations include "records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct." So the custodian has properly classified the report as an employee evaluation.
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 primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process... to promote honest exchanges between employees and their employers.
The first question, then, is whether the employee was suspended or terminated. Here, the employee was initially terminated, so the next question is whether that termination was "a final administrative resolution." Because the employee was later reinstated, the termination was not administratively final. Thus, the four-part test for release of an employee evaluation is not met, and the custodian's decision to withhold the report is consistent with the FOIA.
- Other issues. As noted above, an employee evaluation cannot be disclosed unless each element of the four-part test is met. Waiver or consent by the employee at issue cannot overcome this prohibition. Likewise, redacting employee names and protected health information does not make the report releasable.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General