Can a state agency withhold law-enforcement officer decertification records under FOIA before the Commission has voted on the decertification?

Plain-English summary

The Arkansas Attorney General considered whether the custodian should withhold decertification records held by the Commission on Law Enforcement Standards and Training (CLEST) before a decertification case is presented to the Commission for a vote. The AG had not received records to review and assumed the records included documents and video submitted by an employer for use in an Administrative Procedures Act hearing.

The AG concluded that three exemptions generally do not apply to decertification records held by CLEST. The exemption for undisclosed investigations of suspected criminal activity does not apply because CLEST proceedings are administrative, not criminal. The personnel-records exemption does not apply because the officer is an employee of another entity, not CLEST. The personal-contact-information exemption does not apply because CLEST is not the officer’s employer.

Other FOIA exemptions may apply. The AG identified examples including state income-tax records, certain medical, adoption, and education records, grand-jury minutes, records protected by court order, undercover-officer identities, specified computer-security information, certain military-discharge records, concealed-carry license records, and confidential-informant identities in the circumstances described by the statute. The custodian must review the actual records case by case.

Records held by CLEST can still qualify as employee-evaluation or job-performance records if the officer’s employer created them, or directed their creation, to evaluate the officer and they detail the officer’s performance or lack of performance. If so, the custodian must apply the four-element release test. The AG said there is usually a compelling public interest in records reflecting law-enforcement policy violations, but did not state that this element is automatically satisfied.

What this means for you

If you are a CLEST records custodian

The opinion does not establish a blanket release or withholding rule for all decertification records. Review each record for the specific FOIA exemptions that may apply. The three exemptions addressed directly in the opinion generally do not apply to records held by CLEST for a decertification proceeding, but other exemptions may.

If records were created by or at the behest of the officer’s employer to evaluate the officer and detail performance or lack of performance, treat them as potentially subject to the employee-evaluation-record test described in the opinion.

If you are a law-enforcement officer facing decertification

The opinion says records held by CLEST concerning an officer employed by another entity are not that officer’s personnel records of CLEST. It does not decide whether every decertification record must be released. Specific exemptions and, for qualifying employer-created evaluation records, the four-element release test may still matter.

If you are requesting CLEST records

The opinion identifies several exemptions that may apply to particular records, including sealed records, undercover-officer identities, certain security information, and confidential-informant identities in the circumstances stated by the statute. The custodian must examine the actual records and determine whether an exemption requires withholding or redaction.

If you advise the officer’s employing agency

Records may retain an employee-evaluation or job-performance character even when held by CLEST if the officer’s employer created them, or directed their creation, to evaluate the officer and they detail performance or lack of performance. The four release elements identified by the AG include suspension or termination, administrative finality, relevance to that decision, and compelling public interest.

Common questions

Does the pending Commission vote automatically make all decertification records exempt?
No categorical rule was stated. The AG had no records to review and said the custodian must examine the actual records for specific exemptions.

Why does the undisclosed-investigation exemption generally not apply to CLEST records?
The opinion addresses the exemption for undisclosed investigations of suspected criminal activity. It concludes that CLEST proceedings are administrative, not criminal.

Are CLEST decertification records personnel records?
The opinion says records held by CLEST concerning an officer subject to decertification are not personnel records because the officer is an employee of another entity, not an employee of CLEST.

Can employer-created evaluation records be held by CLEST and still be evaluation records?
Yes. The opinion says records may qualify as employee-evaluation or job-performance records if the employer created them, or directed their creation, to evaluate the employee and they detail the employee’s performance or lack of performance. The four-element release test then applies.

Is the public-interest element automatically satisfied for police records?
The opinion says law-enforcement officers are vested with significant public trust, so there is usually a compelling public interest in records reflecting policy violations. It does not say that the element is automatically satisfied in every case.

What other records may be exempt?
The opinion lists examples including state income-tax records; certain medical, adoption, and education records; grand-jury minutes; records protected by court order; undercover-officer identities; specified computer and network security records; certain military-discharge records; concealed-carry handgun license records; and confidential-informant or source identities in the circumstances described by the statute.

Background and statutory framework

The FOIA analysis begins with three questions: whether the request was directed to an entity subject to the FOIA, whether the document is a public record, and whether an exemption applies. The AG said the first two elements appeared to be met for the Department of Public Safety and turned to possible exemptions.

The opinion distinguishes records held by CLEST from the personnel records of a CLEST employee. It also distinguishes administrative decertification proceedings from criminal investigations for purposes of the undisclosed-investigation exemption. The personal-contact-information exemption is limited to information contained in employer records, and CLEST is not the officer’s employer.

For employee-evaluation or job-performance records, the opinion identifies three defining features: the employer created the records or directed their creation, the purpose was to evaluate the employee, and the records detail the employee’s performance or lack of performance. Release requires suspension or termination, administrative finality, relevance to the disciplinary decision, and a compelling public interest.

Citations

Statutes:

• A.C.A. § 25-19-103(14)(A)
• A.C.A. § 25-19-105(b)(1)
• A.C.A. § 25-19-105(b)(2)
• A.C.A. § 25-19-105(b)(4)
• A.C.A. § 25-19-105(b)(6)
• A.C.A. § 25-19-105(b)(8)
• A.C.A. § 25-19-105(b)(10)(A)
• A.C.A. § 25-19-105(b)(11)
• A.C.A. § 25-19-105(b)(13)
• A.C.A. § 25-19-105(b)(15)
• A.C.A. § 25-19-105(b)(18)
• A.C.A. § 25-19-105(b)(24)
• A.C.A. § 25-19-105(c)(1)

Cases:

• Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-090
October 31, 2025
Colonel Mike A. Hagar, Secretary
Arkansas Department of Public Safety
1 State Police Plaza Drive
Little Rock, Arkansas 72209

Dear Colonel Hagar:

I am writing in response to your request for my opinion on whether, under the Arkansas Freedom of Information Act (FOIA), the records custodian should withhold decertification records held by the Commission on Law Enforcement Standards and Training (CLEST) before the case for decertification has been presented to the Commission for a vote.

RESPONSE

As discussed further in the opinion, the exemptions for undisclosed investigations, personnel records, and personal contact information generally do not apply to decertification records held by CLEST. Other FOIA exemptions may apply, but the custodian will need to review the records on a case-by-case basis to determine whether to withhold, redact, or release them.

DISCUSSION

While I have not received any records to review, I will assume for the purposes of this opinion that "decertification records" are those records, including documents and video submitted by the employer, held by CLEST for use in a hearing under the Administrative Procedures Act to determine whether to decertify a law enforcement officer who is not employed by CLEST.

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 Department of Public Safety is a public entity subject to the FOIA. And because the 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, so I will turn to whether any exemptions prevent the release of decertification records.

2. FOIA exemptions. Whether a particular FOIA exemption applies likely depends on the reasons for the decertification proceeding, as the type of records used in each proceeding would vary from case to case.

Because I don't have specific records to review, I cannot definitively conclude whether all "decertification records" are exempt from release. But under the FOIA, the custodian must withhold records that fall under a specific exemption, such as the following:

• State income tax records.
• Certain medical records, adoption records, and education records.
• Grand jury minutes.
• Records protected from release by court order.
• The identities of undercover law enforcement officers.
• Certain computer and network security records, including "passwords, personal identification numbers, transaction authorization mechanisms, and other means of preventing access to … any data residing therein."
• Certain military discharge records.
• Concealed-carry handgun license records.
• The identities of confidential informants or sources if disclosure "could reasonably be expected to endanger the life or physical safety of the individual" or certain members of their family.

The custodian must review the specific records and determine whether any exemptions apply.

3. Employee-evaluation records. Even if held by CLEST, records may qualify as employee-evaluation or job-performance records if they were created by or at the behest of the employer to evaluate the employee and detail the performance or lack of performance of the employee in question.

Employee-evaluation or job-performance records cannot be released 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.

As for the fourth element, as this Office has consistently opined, law-enforcement officers are vested with significant public trust, so there is usually a compelling public interest in records that reflect policy violations.

If the custodian of the records in question classifies any of the "decertification records" as employee-evaluation or job-performance records, he or she must apply the above test for release (or withholding).

4. Inapplicable exemptions.

For certain FOIA exemptions, I have sufficient information before me to conclude that they do not apply to "decertification records" held by CLEST: the undisclosed investigation exemption; the personnel records exemption; and the personal contact information exemption.

4.1. Undisclosed investigations. The exemption for "undisclosed investigations … of suspected criminal activity" under A.C.A. § 25-29-105(b)(6) does not apply to records held by CLEST because CLEST proceedings are administrative, not criminal.

4.2. Personnel records. Records held by CLEST concerning a law enforcement officer subject to a decertification request are not personnel records because they concern an employee of another entity, not an employee of CLEST.

4.3. Personal contact information. Certain personal contact information of public employees is exempt from release under the FOIA only if that information is "contained in employer records." Because CLEST is not the employer of the law enforcement officer subject to decertification, A.C.A. § 25-19-105(b)(13)'s exemption for personal contact information does not apply.

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

Sincerely,
TIM GRIFFIN
Attorney General

1. Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
2. Id.
3. Id.
4. See, e.g., A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (including “a public official or employee” or “a governmental agency”).
5. 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(14)(A), as amended by Act 505 of 2025, § 1.
6. 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)).
7. A.C.A. § 25-19-105(b)(1); see also Ark. Att’y Gen. Op. 91-093 (opining that the state income tax exemption “is broad enough to encompass the amount of tax withheld from an employee’s paycheck to satisfy state income tax liability”).
8. Id. § 25-19-105(b)(2); Ark. Att’y Gen. Op. 2025-105 (listing additional opinions concerning medical records and worker’s compensation records).
9. A.C.A. § 25-19-105(b)(4).
10. Id. § 25-19-105(b)(8); see also Ark. Att’y Gen. Op. 2004-074 (opining that the Comprehensive Criminal Record Sealing Act of 2013—incorporated by reference into the FOIA—may exempt release of a sealed record).
11. Id. § 25-19-105(b)(10)(A); Ark. Att’y Gen. Op. 96-005 (noting that the exemption does not apply to former undercover officers who are no longer employed).
12. Id. § 25-19-105(b)(11); see also Ark. Att’y Gen. Ops. 2003-064 (credit card account numbers are exempt), 2008-137 (numbers that “provide access to computerized data” are exempt).
13. Id. § 25-19-105(b)(15).
14. Id. § 25-19-105(b)(18).
15. Id. § 25-19-105(b)(24).
16. See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147; Watkins, et al., The Arkansas Freedom of Information Act 202 (6th ed. 2017).
17. A.C.A. § 25-19-105(c)(1).
18. Ark. Att’y Gen. Ops. 2024-018, 2023-120, 2023-071, 2023-013, 2014-129, 2006-026.
19. See, e.g., Ark. Att’y Gen. Op. 92-145 (opining that teacher-employment contracts maintained in the office of county treasurer are not the teachers’ personnel records).
20. A.C.A. § 25-19-105(b)(13).