A school district investigated an employee, the employee resigned, and now the district refuses to release the investigation files. Can they?

Plain-English summary

Mr. Cavin filed a FOIA request to the Beebe School District for investigation files, complaints, Title IX complaints, mandated-reporting records, suspension notices, and the personnel file of a former employee. The district released the personnel file and resignation letter, withheld the mandated-reporting records under specific child-maltreatment confidentiality statutes, and withheld the rest as employee-evaluation records on the theory that since the employee resigned (no suspension or termination), the four-element release test fails.

The AG explains the analytical framework rather than reaching a conclusion (he has not seen the records), but the framework includes a critical point: constructive termination. If a resignation is "forced" or "offered in the face of certain, impending termination," it qualifies as a constructive termination and satisfies the first element of the four-element evaluation-records test. So the district's reflexive "no termination = no release" stance may be too quick.

Three categories of records and how they are classified:

1. Unsolicited complaints from third parties. Personnel records, not employee-evaluation records, even if a later investigation occurs. Subject to release under the Young v. Rice balancing test.

2. Employer's investigation records. Employee-evaluation records (created by or at the behest of the employer to evaluate the employee). Subject to the four-element release test.

3. Suspension notices. Can be either personnel records or employee-evaluation records, depending on contents:
   - Standard form documenting only the fact of suspension: personnel record.
   - Notice that explicitly states the suspension is administrative or non-disciplinary (used pre-investigation): personnel record.
   - Notice that evaluates the employee's conduct and details performance: employee-evaluation record.

4. School police department records. Three subcategories:
   - Investigation done at the school district's behest: employee-evaluation record.
   - Independent criminal investigation that the school later obtained: depends on classification.
   - Independent criminal investigation never adopted by the school: outside (c)(3)(B)(i) review scope, treat as a criminal investigation.

Mandated-reporting records. The custodian withheld these under A.C.A. §§ 12-18-104 and -909 (Child Maltreatment Act confidentiality). The AG does not separately review this withholding because mandated-reporting records have their own confidentiality regime.

What this means for you

If you are a school district records custodian

Don't reflexively withhold investigation records on a "no suspension/termination" basis when the employee resigned. Walk through the constructive termination analysis:
- Was the employee suspended pending investigation?
- Was termination imminent and certain?
- Did the employee resign in the face of that?

If yes to all three, the resignation is constructive termination and element one of the four-element test is met. Then evaluate the remaining three elements.

If you are a FOIA requester for school employee records

Frame your follow-up around constructive termination: "If the employee resigned during a suspension after being told termination was likely, that resignation may qualify as a constructive termination, satisfying element one of the four-element test. Please reconsider the withholding."

If you are a school employee resigning during an investigation

Your resignation may not protect the investigation file from FOIA release if the resignation qualifies as a constructive termination under AG opinions. Get legal counsel before you sign anything.

If you are a journalist or parent advocate

Three ways to seek school accountability:
1. Unsolicited complaints (personnel records) directly via FOIA.
2. Investigation records via the constructive-termination angle when an employee resigns during investigation.
3. Title IX records via Title IX-specific procedures (separate from FOIA in some respects).

If you are a school attorney

The constructive termination doctrine is real and well-established (AG Opinions 2024-045, 2023-077, 2012-019). Don't assume "resigned = exempt." Build the analysis: was the resignation in lieu of imminent termination? If the answer is yes, plan for release.

Common questions

What is "constructive termination"?
A resignation that is forced or offered "in the face of certain, impending termination." AG opinions treat such a resignation as a termination for purposes of element one of the (c)(1) test.

Why did the AG decline to give a yes/no answer?
Because he has not seen the records. He cannot determine if they are personnel records, evaluations, or neither without reviewing them, and he is not a factfinder.

What are mandated-reporting records under §§ 12-18-104, -909?
Records related to mandated reporting of child maltreatment under the Child Maltreatment Act. They have their own confidentiality regime, separate from the FOIA exemptions.

What about Title IX complaints?
Subject to the same personnel-vs-evaluation analysis depending on whether they are unsolicited (personnel) or part of a school's investigation (evaluation). Federal Title IX confidentiality may also apply.

Are school police department records criminal investigation records?
Sometimes. If the school police investigated the employee independently and the school district did not adopt the investigation as part of the employee evaluation, the records may be best classified as criminal investigation records, which sit outside the AG's (c)(3)(B)(i) review.

Can a former employee force the district to withhold records about themselves?
No. The subject's preference is irrelevant under FOIA. The Young v. Rice test is objective; the subject's view of "personal privacy" does not control.

Background and statutory framework

Personnel records vs. evaluation records. Personnel records use the Young v. Rice balancing test under (b)(12). Evaluation records use the four-element (c)(1) test.

Constructive termination. AG Opinions 2024-045, 2023-077, 2012-019 treat resignations made under certain, impending termination as constructive terminations satisfying element one.

Suspension notice classification. AG Opinion 2025-060 (purely administrative documenting fact of suspension), 2023-077 (administrative non-disciplinary), 2003-276 (evaluative), 2001-276, 2001-244, 1998-075 (evaluation records when grounds stated).

Unsolicited complaints. AG Opinions 2001-123, 2000-166, 1998-130, 1998-001, 1996-257 (personnel records, not transformed by subsequent investigation).

School police department investigation classification. AG Opinion 2023-077 (custodian must determine whether investigator notes were predominantly internal administrative investigation or standard criminal investigation).

Mandated-reporting confidentiality. A.C.A. § 12-18-104 (Child Maltreatment Act records); § 12-18-909 (specific reporting confidentiality).

Citations

Statutes:
- A.C.A. § 12-18-104 (Child Maltreatment Act records exemption)
- A.C.A. § 12-18-402 (mandated reporting requirement, referenced in request)
- A.C.A. § 12-18-909 (mandated-reporting confidentiality)
- A.C.A. § 25-19-103 (FOIA definitions)
- A.C.A. § 25-19-105 (exemptions; (b)(12), (b)(13), (c)(1), (c)(3))

Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466

Other AG opinions:
- 2024-045, 2023-077, 2012-019 (constructive termination)
- 2025-060, 2003-276, 2001-276, 2001-244, 1998-075 (suspension classification)
- 2001-123, 2000-166, 1998-130, 1998-001, 1996-257 (unsolicited complaints)
- 2003-257 (solicited statements as evaluations)
- 1996-168 (purpose of evaluation confidentiality)

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. 2025-099
September 24, 2025
Mr. Jimmie Cavin
Via email only: [email protected]
Dear Mr. Cavin:
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 you provided our office, you sent a FOIA request to the Beebe
School District for the following information regarding a former employee:
• All Beebe School District PD investigation files.
• All Beebe School District PD incident reports.
• All complaints.
• Title IX complaints.
• Mandated reporting required under AR Code 12-18-402.
• Suspension notices.
• Application for employment.
• Personnel file/records.
• Resignation letter/notice.
The records custodian provided you with the former employee’s personnel file and resignation
letter. But the custodian declined to release the mandated reporting records under A.C.A.
§§ 12-18-104 and -909. The custodian also withheld the remaining records, classifying them as
employee evaluations. According to the custodian, the employee-evaluation exception applies
“[b]ecause the employee resigned and no suspension or termination proceedings occurred[.]” I
have not been provided any of the withheld records. You have asked whether the custodian’s
decision to withhold those records under the employee-evaluation exemption is consistent with the
FOIA. Mr. Jimmie Cavin
Opinion No. 2025-099
Page 2
RESPONSE
Without reviewing the records at issue, I cannot determine if they are employee evaluations or if
the four-part test for release of employee-evaluation records has been met. Thus, I cannot
definitively say whether the custodian’s decision to withhold the records is consistent with the
FOIA. Instead, I offer a general overview of the types of records commonly generated during
investigations into a public employee’s conduct, how such records are best classified, and the
conditions under which they are subject to disclosure.
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.1
The first two elements appear to be met. The request was made to the Beebe School District—a
public entity subject to the FOIA.2 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 documents’ disclosure.
For FOIA purposes, documents in a public employee’s file can usually be divided into two distinct
groups: “personnel records”6 and “employee evaluation or job performance records.”7 Personnel
records are records that pertain to an individual employee that were not created by or at the behest
1 Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2 E.g., Ark. Att’y Gen. Ops. 2024-096, 2021-054, 2020-008.
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(14)(A), as amended by Act 505 of 2025, § 1.
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 A.C.A. § 25-19-105(b)(12) (“It is the specific intent of this section that the following shall not be deemed to be made
open to the public under the provisions of this chapter … [p]ersonnel records to the extent that disclosure would
constitute a clearly unwarranted invasion of personal privacy”).
7 Id. § 25-19-105(c)(1) (“[A]ll employee evaluation or job performance records, including preliminary notes and other
materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination
proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a
compelling public interest in their disclosure”). Mr. Jimmie Cavin
Opinion No. 2025-099
Page 3
of the employer to evaluate the employee.8 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.9
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.
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.”10 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.11 The balancing test, which takes place “with the scale tipped in favor of public
access,” has two steps.12
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 minimal privacy interest.13 If
the privacy interest is minimal, then disclosure is required. Second, if the information gives rise to
a greater than minimal privacy interest, then the custodian must determine whether that privacy
interest is outweighed by the public’s interest in disclosure.14
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 interests.15 The fact that the subject of the records may consider release of the records an
8 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 1999-147.
9 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, 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.
10 A.C.A. § 25-19-105(b)(12).
11 308 Ark. 593, 826 S.W.2d 252 (1992).
12 John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
13 Young, 308 Ark. at 598, 826 S.W.2d at 255.
14 Id.
15 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). Mr. Jimmie Cavin
Opinion No. 2025-099
Page 4
unwarranted invasion of personal privacy is irrelevant to the analysis because the test is
objective.16
Even if a document, when considered as a whole, meets the test for disclosure, it may contain
discrete pieces of information that must be redacted.17 For instance, the FOIA exempts the personal
contact information of certain public employees from disclosure, including their personal
telephone numbers, personal email addresses, and home addresses.18
3. Employee-evaluation records. The second relevant exception is for “employee evaluation or
job performance records,” which 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.19 “This exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct.”20
If a document qualifies as an employee-evaluation record, the document cannot be released unless
all the following elements have been met:
1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination
proceeding (i.e., finality);
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).21
As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But
the leading commentators on the FOIA, referring to this office’s opinions, have offered the
following guidelines:
16 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 1994-198; Watkins et al., supra note 122, at 207.
17 A.C.A. § 25-19-105(f).
18 See id. § 25-19-105(b)(13).
19 Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren School Dist., 2019 Ark.
App. 466, 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, 1995-351, and 1993-055.
20 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
21 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065. Mr. Jimmie Cavin
Opinion No. 2025-099
Page 5
[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 because that concern, at least
theoretically, always exists. 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.22
These commentators also note that “[t]he status of the employee” or “his or her rank within the
bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest”
exists,23 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.24 The primary purpose of this exception
is to preserve the confidentiality of the formal job-evaluation process in order to promote honest
exchanges between employees and their employers.25
4. Classification of records. Because I have not reviewed the records at issue, I cannot definitively
opine on whether the records constitute personnel records, employee evaluations, or neither.
Instead, I will provide an overview of the types of records that are often generated as part of an
investigation into a public employee’s conduct. Ultimately, the contents of these documents and
the circumstances under which they were created are questions of fact to be determined by the
custodian, as I am not a factfinder when issuing opinions.
4.1 Unsolicited complaints. First, an unsolicited complaint about a public employee that is
created by a third party is a personnel record.26 It is not transformed into an employee-evaluation
record by virtue of a subsequent investigation.27 If the unsolicited complaint relates to the former
employee but was not created by or at the behest of the employer to evaluate the former employee,
then that complaint is a personnel record. As a personnel record, an unsolicited complaint must be
disclosed unless that “disclosure would constitute a clearly unwarranted invasion of personal
privacy.”
22 Watkins et al., supra note 122, at 238–39.
23 Id. 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”).
24 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
25 E.g., Ark. Att’y Gen. Op. 1996-168.
26 See, e.g., Ark. Att’y Gen. Op. 2001-123, 1998-001.
27 Ark. Att’y Gen. Ops. 2001-123, 2000-166, 1998-130, 1998-001, 1996-257. Mr. Jimmie Cavin
Opinion No. 2025-099
Page 6
4.2 Employer’s investigation records. Second, records created as part of an employer’s
investigation into complaints about an employee’s conduct are employee-evaluation records.28
These investigation records are created by the employer or at the behest of the employer to evaluate
the employee, so they are employee evaluations. As employee-evaluation records, they can be
released only if (1) the employee was suspended or terminated; (2) the suspension or termination
is administratively final; (3) the records detail the grounds for suspension or termination; and
(4) there is a compelling public interest in disclosure of the records in question.
4.3 Suspension notices. Third, suspension notices can be either personnel records or employee
evaluations. A suspension notice is a personnel record in two situations. In the first type, the notice
is a standard form that merely documents the suspension and does not evaluate the employee or
detail the employee’s performance or lack of performance on the job.29 The notice may also
provide information so that the employee can appeal the action detailed in the notice.30
With the second type of suspension notice that is a personnel record, the suspension notice itself
states that the suspension is administrative or non-disciplinary.31 This type of notice is generally
issued prior to an employer starting the investigation,32 and it may detail the alleged conduct for
which the employee will be investigated.33 Because the suspension notice does not include the
results of the investigation—the employee’s performance or lack of performance on the job—the
suspension notice is a personnel record.
But a suspension notice is an employee evaluation when the notice is disciplinary.34 In other words,
the notice evaluates the employee and details the employee’s performance or lack of performance
on the job.35 The notice then provides the discipline—suspension—based on those findings. This
28 Ark. Att’y Gen. Ops. 2003-257 (opining that “statements that were solicited by the employer and were created as a
part of the employer’s investigation into the officer’s conduct constitute ‘employee evaluation/job performance
records’”); 1998-001 (opining that “statements taken as a part of an investigation into an allegation of sexual
harassment, transcripts of such investigation proceedings, records which reflect administrative action in response to
or in connection with such an allegation, and other ancillary documents created as a part of the investigation[]
constitute ‘employee evaluation/job performance records[]’ rather than ‘personnel records’”).
29 Ark. Att’y Gen. Op. 2025-060.
30 Id.
31 Ark. Att’y Gen. Op. 2023-077 (opining that the suspension notice at issue was purely administrative because it
stated, “The suspension neither makes you guilty nor serves as a disciplinary action”).
32 See id.
33 Id. (opining that “[i]f an employer memorializes an administrative suspension in a letter and states the grounds for
the administrative suspension, the suspension is still administrative in nature—not evaluative or disciplinary”).
34 See id.
35 Ark. Att’y Gen. Op. 2003-276. Mr. Jimmie Cavin
Opinion No. 2025-099
Page 7
office has consistently opined that a suspension notice qualifies as an employee-evaluation record
when it states the grounds for the suspension.36
Once the custodian has classified the suspension notice as either a personnel record or employee
evaluation, then the custodian can apply the correct test for disclosure.
5. Beebe School District Police Department. The critical question regarding the investigation
files and incident reports prepared by the Beebe School District Police department is the
documents’ classification: Are they employee evaluations, personnel records, or neither? As noted
previously, I have not reviewed these records, and I am not a factfinder when issuing opinions. So
I will provide only an outline of the relevant law.
5.1 Employee evaluations. If the police department investigated the former employee at the
behest of the school district, then those records are employee evaluations.37 Based on the
custodian’s response to your FOIA request, this is likely how she has classified the records.
5.2 Personnel records. But if the police department investigated the former employee
independently and the school district later obtained a copy of the records to include in the former
employee’s file, then the records are personnel records. They relate to the former employee but
were not created by the employer or at the behest of the employer to evaluate the former
employee.38
5.3 Neither. If the police department investigated the former employee independently and the
school district neither asked for the records nor placed a copy of them in the former employee’s
file, then those records are best classified as a criminal investigation. If the records are best
classified as a criminal investigation, the records fall outside the scope of this opinion.39
6. Constructive termination. Other than the mandated reporting records, the custodian has
withheld the remaining records you requested under the employee-evaluation exception, noting
that the former “employee resigned and no suspension or termination proceedings occurred[.]” As
discussed above, employee evaluations cannot be released unless the four-part test is met. The first
36 E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension is an “employee evaluation/job performance
record” when the letter details “the incidents that gave rise to the discipline”); 2001-244 (opining that “any document
reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies
as a ‘job performance record”’); 1998-075 (analyzing a list containing law-enforcement officer disciplinary action).
37 Ark. Att’y Gen. Op. 2023-077 (opining that a custodian “must determine whether—based on all the facts—the
[investigator] notes were predominately the result of an internal, administrative investigation or of a standard, criminal
investigation”).
38 See Ark. Att’y Gen. Ops. 2023-077 (explaining that investigator notes can be classified as employer evaluations,
personnel records, or neither); 1998-001 (noting that any record concerning the employee is a personnel record).
39 Ark. Att’y Gen. Op. 2023-077 (opining that “[i]f the [investigator] notes are best characterized as a criminal
investigation, then propriety of [the custodian’s] decision to withhold them from disclosure is outside the scope of an
opinion under A.C.A. § 25-19-105(c)(3)(B)(i)”). Mr. Jimmie Cavin
Opinion No. 2025-099
Page 8
question, then, is whether the former employee was suspended or terminated. From the records
you provided, it appears that the former employee was suspended and later resigned before the
suspension could become administratively final.
So there is a question about whether the former employee resigned in lieu of termination.
This office has long concluded that if a resignation is forced—i.e., if it is offered in the face of
“certain, impending termination”—then it qualifies as a “constructive termination” that
meets the first element of disclosure of evaluation records.40 If the custodian determines
that the former employee’s resignation was voluntary, then the employee evaluations must
be withheld from release because the first element is not met. But if the custodian
determines that the former employee’s resignation amounted to a constructive termination,
the custodian proceeds to the remaining elements of the four-part test.
Because I am not a factfinder when issuing opinions, I cannot determine whether the elements of
the four-part test have been met here.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
40 See generally Ark. Att’y Gen. Ops. 2024-045, 2023-077, 2012-019.