Can a state agency withhold law-enforcement officer decertification records under FOIA before the Commission has voted on the decertification?
Plain-English summary
The Commission on Law Enforcement Standards and Training (CLEST) holds decertification proceedings against police officers under the Administrative Procedures Act. Colonel Hagar, Secretary of the Arkansas Department of Public Safety, asked whether the records custodian should withhold decertification records before the Commission has voted on whether to decertify the officer.
The AG's answer focuses on three FOIA exemptions the Department might invoke and explains why none of them generally apply:
1. Undisclosed-investigations exemption (A.C.A. § 25-19-105(b)(6)) does not apply. That exemption covers "undisclosed investigations … of suspected criminal activity." CLEST proceedings are administrative, not criminal. Decertification removes a person's professional credentials; it does not file charges.
2. Personnel-records exemption (A.C.A. § 25-19-105(b)(12)) does not apply. Personnel records are about an entity's own employees. The officer subject to decertification is employed by another agency (a city police department, county sheriff's office, or similar). Records held by CLEST about that officer are not CLEST's personnel records.
3. Personal contact information exemption (A.C.A. § 25-19-105(b)(13)) does not apply. That exemption is limited to information "contained in employer records." CLEST is not the officer's employer, so the exemption does not reach personal contact information held by CLEST.
What might still apply:
- State income tax records (b)(1)
- Certain medical, adoption, and education records (b)(2)
- Grand jury minutes (b)(4)
- Records sealed by court order (b)(8)
- Identities of undercover officers (b)(10)(A)
- Network security records, including passwords and PIN-style identifiers (b)(11)
- Certain military discharge records (b)(15)
- Concealed-carry handgun license records (b)(18)
- Identities of confidential informants where disclosure could endanger them or family (b)(24)
Employee-evaluation records. Even though personnel records are not at issue, employee-evaluation records can apply. If a record was created by the officer's employer (not CLEST) at the employer's behest to evaluate the officer's performance, that record is an employee-evaluation record. Employee-evaluation records have a high release bar: suspension or termination, administrative finality, the record formed the basis for the decision, and a compelling public interest. The AG notes that for law-enforcement officers, "there is usually a compelling public interest" in records reflecting policy violations.
What this means for you
If you are a CLEST records custodian
Three takeaways:
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Do not assume the easy exemptions ((b)(6), (b)(12), (b)(13)) cover decertification records. They do not, for the reasons above. Each record needs an exemption-by-exemption review.
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Watch for employer-created evaluation records. Police departments often forward internal-affairs files to CLEST as part of a decertification request. Those files may be the employing agency's employee-evaluation records, requiring all four release elements.
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Document why each withheld record is withheld. "Undisclosed investigations" and "personnel records" labels do not survive AG review. Specific exemption citations and a record-by-record analysis are required.
If you are a law-enforcement officer facing decertification
Your CLEST file is more openly subject to disclosure than you might think. The personnel-records exemption that protects records in your employing agency's hands does not extend to records in CLEST's hands. Conversely, the employee-evaluation records that your employing department generated and sent to CLEST may be more protected, because they retain their evaluation-record character.
If you are a journalist or police-accountability advocate
This opinion is a meaningful expansion of public access to police decertification records. The categorical claim that "decertification records are exempt because the proceedings are not yet final" does not hold. Specific records may still be exempt under narrower exemptions (sealed orders, undercover identities), but the default posture is disclosure subject to record-by-record review. The AG's note about a "compelling public interest" in officer policy-violation records also tilts the analysis toward release for any employee-evaluation records that emerge from suspension or termination decisions.
If you are a city or county attorney advising a police department about a CLEST referral
Records you generate at the department level for evaluation purposes retain their employee-evaluation status. Records you transmit to CLEST become CLEST's records too, but the underlying classification follows. If the officer is suspended or terminated as a result, the four-element release test applies and the public-interest element is presumptively met.
Common questions
Why are CLEST proceedings "not criminal" for FOIA purposes?
Decertification removes professional credentials. It does not file criminal charges or adjudicate criminal liability. The Administrative Procedures Act governs the hearing. So § 25-19-105(b)(6)'s "undisclosed criminal investigations" exemption does not fit.
Could the records still be "investigative"?
Possibly, but only if they meet the three-element test from Hengel v. City of Pine Bluff: investigative records, of an open and ongoing investigation, by an agency authorized to investigate criminal activity. CLEST's role does not produce criminal investigations.
What if the records came from the officer's employing agency in the first place?
Then their original character can carry through. An internal-affairs file produced by the employing department to evaluate the officer is an employee-evaluation record both in the department's hands and in CLEST's hands. Those records are subject to the four-element release test.
Does the public interest in police accountability matter?
Yes. The AG explicitly notes that "law-enforcement officers are vested with significant public trust, so there is usually a compelling public interest in records that reflect policy violations." That tips the fourth element of the employee-evaluation release test toward release.
Are sealed court orders an exception?
Yes. § 25-19-105(b)(8) exempts records protected from release by court order. The AG points to this as one example among several specific exemptions that may apply on a record-by-record basis.
What about concealed-carry license information?
Exempt under (b)(18). If decertification records reference a concealed-carry license, that information stays out of any release.
Background and statutory framework
A.C.A. § 25-19-105 FOIA exemption structure. The statute lists several specific exemptions in subsection (b), incorporates other statutes' confidentiality provisions, and provides a separate (c)(1) test for employee-evaluation/job-performance records.
The undisclosed-investigations exemption (b)(6). Three elements: investigative records; of a criminal investigation that is open and ongoing; by an agency authorized to investigate suspected criminal activity. CLEST proceedings fail the second element because they are administrative, not criminal.
The personnel-records exemption (b)(12). Open except where disclosure would be a clearly unwarranted invasion of personal privacy. The Young v. Rice balancing test applies. But the exemption is about records of the employer's own employees. CLEST is not the employer.
The personal-contact-information exemption (b)(13). Categorical for nonelected employees. Limited to information "contained in employer records." Same employer-relationship limitation.
Employee-evaluation/job-performance records (c)(1). Three-element definition (created by or at the behest of the employer; to evaluate the employee; detailing performance). Four-element release test (suspension or termination; administrative finality; record formed the basis; compelling public interest).
Compelling public interest in police records. AG Opinions 2024-018, 2023-120, 2023-071, 2023-013, 2014-129, 2006-026 establish a default presumption that police-accountability records meet the compelling-public-interest element.
Citations
Statutes:
- A.C.A. § 25-19-103 (FOIA definitions)
- A.C.A. § 25-19-105 (exemptions; subsections (b)(1) through (b)(24); (c)(1) employee-evaluation release test)
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)
Other AG opinions:
- 2024-018, 2023-120, 2023-071, 2023-013, 2014-129, 2006-026 (compelling public interest in police records)
- 92-145 (records held outside the employer are not personnel records)
Source
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.
- 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.
- 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.
- 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).
- 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