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 requester challenged the Little Rock Police Department's decision to withhold six pages relating to an officer's termination. The Attorney General concluded that the Involuntary Off-Boarding Status Change Form and two termination clearance forms are personnel records. They do not give the reasons for the firing and should be released after redacting the employee's personal contact information and identification number.

The Letter of Termination states the grounds for firing and is an employee evaluation record. The AG said three of the four conditions for its release likely were met: termination, relevance to the decision, and a compelling public interest. He could not decide the remaining condition, administrative finality, because the records custodian supplied no information on it. The requester said the probationary officer had no appeal rights and believed the firing was final; the opinion did not adopt that assertion or make a general rule about probationary officers. If the firing was administratively final, the AG said the evaluation-record exemption would not justify withholding the letter. He expressly left open whether another exemption might apply.

What this means for you

If you requested termination records

Ask the custodian to classify each document by what it contains. In this case, forms recording the separation without giving its grounds were personnel records. The letter explaining the grounds was an evaluation record. The AG's conclusion about releasing the letter depends on a finality fact he could not establish from the information supplied.

If you are a records custodian

Review the forms and letter separately. The AG identified personal email, telephone number, mailing address, and employee identification number for redaction from these forms. For the letter, determine whether there has been a final administrative resolution of the termination proceeding before applying the evaluation-record release test. This opinion did not resolve that fact for the LRPD officer.

If you are the employee

The requester said the officer's probationary status meant she lacked appeal rights. The AG reported that claim but did not decide whether it was true or whether the termination was final. The opinion says an employee's objection to releasing personnel records does not itself control the objective privacy analysis.

Common questions

Are off-boarding and termination clearance forms employee evaluation records?

Not these forms. The AG found they were not created to evaluate the employee and did not contain the reasons for termination. He classified them as personnel records and directed release with the specified redactions.

Why was the termination letter treated differently?

It stated the grounds for the officer's termination. The AG classified it as an evaluation record and applied the four-part release test in A.C.A. § 25-19-105(c)(1).

Was the officer's termination administratively final?

The AG could not tell. The requester believed the probationary officer lacked appeal rights, but the custodian supplied no information about finality. The opinion gives no general rule that probationary employment makes a firing final on the issue date.

Does the opinion require release of the termination letter?

If the termination was administratively final, the AG said the evaluation-record exemption was not a proper reason to withhold it. He did not determine finality and did not address other possible exemptions.

What information did the AG identify for redaction from the forms?

The employee's personal email address, personal telephone number, mailing address, and employee identification number.

Background and statutory framework

Arkansas FOIA treats personnel records and employee evaluation or job performance records differently. The opinion defines personnel records as employee-related records not created by or at the employer's direction to evaluate the employee. Evaluation records are created by or at the employer's direction to evaluate the employee and detail job performance or its absence. A personnel record is open except to the extent disclosure would be a clearly unwarranted invasion of personal privacy; discrete information may need redaction.

Under A.C.A. § 25-19-105(c)(1), an evaluation record may be released only when the employee was suspended or terminated, there was a final administrative resolution, the record formed a basis for the decision, and the public has a compelling interest in disclosure. The AG said the first, third and fourth elements likely were met for the letter. The second remained unresolved.

Citations and references

Statutes: A.C.A. §§ 25-19-103(7)(A), 25-19-105(b)(11), (b)(12), (b)(13), (c)(1), (c)(3)(B)(i), (f).

The opinion's footnotes give the supporting case citations and prior AG opinions.

Source

• Official Arkansas AG opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2025-086)

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. TIM GRIFFIN ATTORNEY GENERAL

Mr. Russ Racop
Opinion No. 2025-086
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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.1 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.2 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.3 Because these records are held by a public entity, they are presumed to be public records,4 although that presumption is rebuttable.5 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 files6 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 1 Because my duty under A.C.A. § 25-19-105(c)(3)(B) is to state whether the custodian’s decision as to the release of “personnel or evaluation records” is consistent with the FOIA, I do not address whether some other exemption may prevent the letter’s disclosure. 2 Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515. 3 The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions…carried out by a public official or employee.” A.C.A. § 25-19-103(7)(A). 4 Id. 5 See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.’” (quoting Ark. Att’y Gen. Op. 2005-095)). 6 “Personnel files” are not referenced in the FOIA but typically includes the following documents: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health- and life-insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g. Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017).

Mr. Russ Racop
Opinion No. 2025-086
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not created by or at the behest of the employer to evaluate the employee.7 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.8 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.

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.”9 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.10 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.11 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.12 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.13 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.14 The fact that the subject of the records may consider 7 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147. 8 Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, at 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s Office); Ark. Att’y Gen. Ops. 2015- 057, 2009-067, 2006-038, 2003-073, 95-351, 93-055. 9 A.C.A. § 25-19-105(b)(12). 10 308 Ark. 593, 826 S.W.2d 252 (1992). 11 Watkins et al., supra note 6, at 208. 12 Young, 308 Ark. at 598, 826 S.W.2d at 255. 13 Id. 14 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

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release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.15 Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted,16 such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses);17 employee personnel numbers or identification codes;18 dates of birth of public employees;19 social security numbers;20 insurance coverage;21 tax information or withholdings;22 and banking information.23

2. 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.24 And this office has consistently opined that a termination letter qualifies as an evaluation record when it states the grounds for the termination.25 If a document qualifies as an employee-evaluation record, the document cannot be released unless all the following elements have been met:
3. The employee was suspended or terminated (i.e., level of discipline);
4. There has been a final administrative resolution of the suspension or termination
   proceeding (i.e., finality);
   15
   E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 6, at 207. 16 A.C.A. § 25-19-105(f). 17 A.C.A. § 25-19-105(b)(13). 18 Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070. Public employee personnel numbers are exempt from disclosure because “these numbers presumably provide access to computerized data, and records containing ‘personal identification numbers’ used for computer security functions are specifically exempt from disclosure under the FOIA.” Ark. Att’y Gen. Op. 2022-032; see also A.C.A. § 25-19-105(b)(11). 19 Ark. Att’y Gen. Op. 2007-064. 20 Ark. Att’y Gen. Ops. 2006-035, 2003-153. 21 Ark. Att’y Gen. Op. 2004-167. 22 Ark. Att’y Gen. Ops. 2005-194, 2003-385. 23 Ark. Att’y Gen. Op. 2005-194. 24 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations). 25 E.g., Ark. Att'y Gen. Ops. 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171.

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Opinion No. 2025-086
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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).26
   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.27 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.28 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.29
5. 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 26 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065. 27 Watkins, et al., supra note 6, at 238–39; see also Ark. Att’y Gen. Ops. 2016-084, 2015-108. 28 Watkins, et al., supra note 6, at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue.”). 29 E.g., Ark. Att’y Gen. Op. 96-168.

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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.

4. 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.30 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 30 Ark. Att’y Gen. Ops. 2024-095, 2024-021, 2023-071, 2023-013, 2014-129, 2006-026.