When a Little Rock police officer is fired, are the off-boarding forms and the termination letter subject to release under Arkansas's FOIA?
Plain-English summary
A reporter asked the Little Rock Police Department for the personnel file of a probationary officer who had just been fired. LRPD released most of the file but withheld six pages tied to the termination, claiming all six were "employee-evaluation records" and so exempt. The pages were: an Involuntary Off-Boarding Status Change Form, a CLR Police Department Termination Clearance Form, a LRPD Termination Clearance Form, and a Letter of Termination.
Attorney General Tim Griffin disagreed with most of LRPD's classifications. The off-boarding form and the two termination clearance forms are administrative paperwork that go with a firing but do not lay out the reasons for the firing. They are personnel records, not evaluation records, so they have to be released subject only to standard redactions of personal contact information and the employee's identification number.
The termination letter itself is different because it states the grounds for termination. That makes it an evaluation record. Evaluation records can only be released if a four-part test is met: the employee was suspended or fired, the discipline is administratively final, the record was the basis for the discipline, and the public has a compelling interest in disclosure. The AG concluded three of those four are satisfied here (firing happened, the letter is the basis for it, and law enforcement officers carry a strong public interest in police-misconduct records). Whether the firing is administratively final is the open question. If it is final, the letter has to be released too.
What this means for you
If you are a journalist or member of the public requesting police records
Don't accept "this is an evaluation record" as a complete answer when you ask for termination paperwork. The custodian must look at each document separately. Forms that simply document the fact of separation (off-boarding forms, clearance checklists, exit paperwork) are personnel records, not evaluation records, and the FOIA presumption favors disclosure. If a custodian withholds them as "evaluation," push back, ideally with this opinion in hand.
For the actual termination letter or memo that explains why the officer was fired, expect a tougher fight. The custodian can withhold it until the termination is administratively final. For probationary officers, that may be immediate (no appeal rights). For non-probationary officers with civil-service or grievance rights, finality may take months.
If you are a records custodian for a police department or city HR office
Read each form before you classify it. The classification turns on whether the document was created to evaluate the employee and whether it details performance or misconduct. A termination clearance form that simply confirms the badge was returned and benefits were closed out doesn't evaluate anyone. It belongs in the personnel-record category and gets released with redactions to personal contact info, employee ID numbers, dates of birth, social security numbers, and the like.
A termination letter that recites "you are terminated for the following reasons: failure to follow chain of command, dishonesty during the IA interview, and use of force inconsistent with policy" is an evaluation record. Apply the four-part test and document your finality determination. If you assert the termination is not yet administratively final, be ready to identify the pending appeal or post-termination review that supports that.
If you are an officer being terminated or under investigation
Probationary officers in Arkansas typically have no appeal rights, which means the firing is administratively final the day it is issued. That, in turn, means a termination letter laying out the reasons for the firing is releasable to a FOIA requester once the other parts of the four-part test are met. If you want to limit disclosure, the path is procedural (appeal rights, civil-service review, contractual grievance), not substantive.
If you represent a city or department in FOIA disputes
Document the finality question explicitly. Custodians often default to withholding evaluation records by reflex. If a requester challenges the withholding, the city has to be able to show why the four-part test was not met, particularly the finality element. Preserve a record of the personnel action, any pending appeal, and any signed waiver or expiration of appeal rights.
If you are a city council member or oversight body
This opinion reinforces that there is a meaningful distinction between paperwork that documents a separation (almost always public) and paperwork that explains the reasons for it (public only after finality and only when the public-interest factor is met). Police misconduct cases will usually meet the compelling-public-interest factor because law enforcement officers are invested with significant public trust.
Common questions
Q: What's the difference between a "personnel record" and an "employee evaluation record" under Arkansas FOIA?
A: A personnel record is anything in the employee's file that was not created by the employer to evaluate the employee. Examples: applications, payroll records, address changes, off-boarding paperwork. An evaluation or job-performance record is one (1) created by or at the employer's direction (2) to evaluate the employee (3) that details performance or lack of performance. Examples: written evaluations, reprimands that recite misconduct, internal-affairs investigation reports.
Q: What is the four-part test for releasing an evaluation record?
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 final administrative resolution of the discipline; (3) the record formed a basis for the decision; and (4) the public has a compelling interest in disclosure.
Q: When is a termination "administratively final"?
A: When all internal grievance, appeal, or civil-service review has run its course (or never existed). Probationary officers without appeal rights have administratively final terminations on the day they are fired. Civil-service officers may have weeks or months of appeal review before the action is final.
Q: What pieces of personal information must be redacted from a personnel record before release?
A: Personal phone numbers, personal email addresses, home addresses, employee identification numbers, dates of birth, social security numbers, insurance coverage information, tax withholding information, and banking information. The opinion lists each of these with citations.
Q: Why is there a "compelling public interest" in records about a fired police officer?
A: Because police officers exercise significant public trust (the power to arrest, to use force, to investigate). The AG's office and the leading FOIA commentators have consistently said that misconduct by such officers triggers a strong public-interest factor.
Q: If I'm the subject of records and I object, can I block the release?
A: No. The test is objective. The subject's preference is irrelevant. The custodian and the AG balance the public's interest against the privacy interest, with the scale tipped toward disclosure.
Background and statutory framework
The Arkansas FOIA was enacted to maximize public access to records of government performance. The act has narrow exemptions, including one for personnel records that would constitute a clearly unwarranted invasion of personal privacy and a separate one for employee-evaluation or job-performance records. Courts and the AG have built up a body of opinions explaining how to tell which category a given record falls in, because the rules for releasing them are very different.
Personnel records are open by default, with a balancing test that favors disclosure unless privacy outweighs public interest. The Young v. Rice (1992) two-step balancing test asks first whether the privacy interest is more than de minimis and second whether the public's interest outweighs that privacy interest. The Arkansas Supreme Court in Stilley v. McBride confirmed that the burden is on the person resisting disclosure.
Evaluation records are closed by default. They are released only when the four-part test of A.C.A. § 25-19-105(c)(1) is satisfied. This is the rule the LRPD custodian was applying. The AG's correction was to point out that not every termination-related document is an evaluation record. Many are administrative paperwork.
The AG also reaffirmed prior opinions (cited in footnote 30 of the opinion) that police officers typically meet the compelling-public-interest factor because of the public trust their position carries.
Citations and references
Statutes:
- A.C.A. § 25-19-103(7)(A) (public-record definition)
- A.C.A. § 25-19-105(b)(11) (personal identification numbers exempt)
- A.C.A. § 25-19-105(b)(12) (personnel records subject to invasion-of-privacy balancing)
- A.C.A. § 25-19-105(b)(13) (personal contact information)
- A.C.A. § 25-19-105(c)(1) (evaluation-record 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)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
Treatise:
- John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-086
August 28, 2025
Mr. Russ Racop
Snarky Media Group
1719 Broadway Street, Suite 1
Little Rock, Arkansas 72206
Dear Mr. Racop:
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.
According to correspondence forwarded to our office, you requested the personnel file of a police officer who was recently terminated from the Little Rock Police Department (LRPD). The LRPD's custodian of records provided you with a copy of the file, with certain information redacted. But the custodian withheld six pages of records pertaining to the termination of the officer, citing the exemption for employee-evaluation records. These six pages include an Involuntary Off-Boarding Status Change Form, a CLR Police Department Termination Clearance Form, a LRPD Termination Clearance Form, and a Letter of Termination. You object to the custodian's decision to withhold these particular records pertaining to the officer's termination. You state that because the officer's employment was probationary, she has no appeal rights, and her termination is final. You ask whether the custodian's decision to withhold the records pertaining to the officer's termination is consistent with the FOIA.
RESPONSE
In my opinion, the custodian has incorrectly classified the Involuntary Off-Boarding Status Change Form, the CLR Police Department Termination Clearance Form, and the LRPD Termination Clearance Form as evaluation records. Although these forms relate to the employee's termination, they do not recount the grounds for termination. Therefore, they are best classified as personnel records and should be released with redactions to the employee's personal contact information and employee identification number.
I believe the custodian has correctly classified the Letter of Termination as an evaluation record, but I do not have enough information to determine whether that record should be disclosed. It appears that three of the four elements required for release of an evaluation record have been met. However, I do not know whether the termination is administratively final. If it is final, it is my opinion that the record should not be withheld under the exemption for employee-evaluation records.
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 Little Rock 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 to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the records' disclosure.
For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "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. Thus, 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.
- 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 de minimis privacy interest. If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis 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 interest. 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 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; dates of birth of public employees; social security numbers; insurance coverage; tax information or withholdings; and banking information.
- Employee-evaluation records. The exception for employee-evaluation records includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. And this office has consistently opined that a termination letter qualifies as an evaluation record when it states the grounds for the termination.
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).
As for the fourth element, the FOIA does not define the 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, for that concern is, at least theoretically, always present. 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 "the status of the employee" or "his 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 particular exemption is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers.
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The Status Change Form and Termination Forms. In my opinion, the custodian has incorrectly classified the Involuntary Off-Boarding Status Change Form, the CLR Police Department Termination Clearance Form, and the LRPD Termination Clearance Form as evaluation records. These forms were not created to evaluate the employee, and even though they relate to the employee's termination, they do not contain the reasons for the termination. Therefore, they are best classified as personnel records. Nothing in the forms suggests that their disclosure would constitute a clearly unwarranted invasion of personal privacy. But there are certain discrete pieces of information that must be redacted from the records before they can be released, including the employee's personal email address, personal telephone number, mailing address, and employee identification number.
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The Letter of Termination. Because the letter states the grounds for the employee's termination, it is properly classified as an evaluation record. As explained above, an evaluation record cannot be disclosed unless each element of the four-part test is met. In my opinion, the first, third, and fourth elements of the test have likely been met: the employee was terminated; the termination letter is relevant because it recounts the reasons for the termination; and the public has a compelling interest in the disclosure of the letter. With respect to the fourth element, this office has consistently opined that because law enforcement officers are invested with a significant public trust, there is usually a compelling public interest in records that reflect violations of departmental policy.
With respect to the second element, administrative finality, I have received no information from the records custodian regarding whether the employee's termination is administratively final, although you have expressed your belief that it is. Consequently, I cannot definitively say whether the test for release of an evaluation record has been met. But if the termination is administratively final, I believe all four elements necessary for disclosing an evaluation record have been met and that A.C.A. § 25-19-105(c)(1) is not a proper basis for withholding the termination letter.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General