I'm a journalist asking for state employee termination notices. Why won't the agency release them?
Plain-English summary
The Arkansas Advocate filed a FOIA request with the Department of Energy and Environment's Division of Environmental Quality for resignation letters and termination notices for employees from January 2023 through the date of the request. The agency released the resignation letters and initially released redacted termination notices for three employees (excluding names and personnel numbers), then reversed course and withheld the notices entirely as employee-evaluation records that had been "mistakenly disclosed."
Editor-in-Chief Sonny Albarado challenged the reversal, arguing that "the dismissal of a public employee, regardless of the reason, is of public interest, and records associated with that dismissal should be disclosable under the FOIA."
The AG sides with the agency. Termination notices that state the grounds for termination are employee-evaluation records under FOIA. Those records can be released only if all four elements of the (c)(1) test are met:
- Suspension or termination ✓ (here, all three employees were terminated)
- Administrative finality ✓ for the January 2023 termination, possibly for the others
- Relevance ✓ (each notice recounts the reasons for termination)
- Compelling public interest ✗ (the conduct does not rise to gross incompetence or breach of public trust; no related public controversy; employees held lower-ranking, non-managerial positions)
Because element four fails, the records stay confidential.
The AG explicitly rejects the Advocate's broader argument: "The mere fact that an employee has been suspended or terminated does not mean that the records should be made public; if that were the case, the 'compelling public interest' phrase would be redundant." Watkins commentary, quoted in the opinion.
Compelling-public-interest framework. Three factors:
1. The nature of the infraction (especially violations of public trust or gross incompetence).
2. Whether there is a related public controversy.
3. The employee's position within the agency (high-rank vs rank-and-file).
A general interest in employee performance is not enough. There must be a specific link between a public controversy, an agency, and an employee whose breach of trust matters to that controversy.
What this means for you
If you are a journalist seeking termination records of state employees
Frame your request around specific public-interest factors:
- High-ranking officials (compelling public interest more easily found)
- Conduct related to a documented public controversy
- Allegations of gross incompetence, public-trust violations, criminal activity, or sexual misconduct
A bare "show me all terminations from 2023-2025" request will get you stopped at the compelling-public-interest element for routine terminations of rank-and-file employees.
If you are a records custodian
The four-element test is hard. Walk through it carefully:
1. Was the employee actually terminated (or did they resign before formal termination)?
2. Is the termination administratively final (no pending appeal)?
3. Do the records explain the grounds for termination?
4. Is there a specific compelling public interest tied to a controversy or rank?
If you can't check all four, the records stay confidential. Document your analysis in writing for the inevitable challenge.
If you are a state employee facing potential termination
Standard termination notices stating the grounds for the termination are kept confidential under FOIA unless the four-element test is met. For most rank-and-file employees, the test is not met because element four (compelling public interest) is not satisfied by routine misconduct. Higher-ranking officials, public-trust violations, and incidents tied to controversy are more likely to result in disclosure.
If you are a public-records advocate
The opinion confirms that Arkansas's compelling-public-interest standard is a real bar, not a rubber stamp. Advocacy strategies:
- Push for documentation of the conduct so that "public trust" and "incompetence" framing can attach.
- Look at whether the employee's role is high-rank.
- Identify documented public controversies (news stories, legislative hearings, lawsuits) that tie the termination to public concern.
- Push for narrow targeted requests rather than broad agency sweeps.
If you are a state agency attorney
Don't panic when an initial release was made and you later determine it was wrong. The opinion notes the agency walked back its initial release, and the AG validates that the second decision (withhold) is consistent with FOIA. Document the reasons clearly and put the analysis in the file.
Common questions
Why is a termination notice an evaluation record?
Because it states the grounds for termination, which is an evaluation of the employee's performance or conduct. AG Opinions 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171 all hold that termination letters with grounds qualify as evaluation records.
What if the termination notice does not state the grounds?
Then it may be a personnel record (subject to the Young v. Rice balancing test) rather than an evaluation record. Bare-form termination notices are typically releasable.
What is "compelling public interest"?
Not defined by statute. The AG and leading commentary identify three factors: nature of the infraction (public trust, gross incompetence?), existence of a related public controversy, and the employee's rank. A "general interest in the performance of public employees" is not compelling because that interest is theoretically always present.
Can the press establish public interest just by writing about the case?
The mere existence of a news story is not the test. The test is whether there is a public controversy that ties to the agency in a specific way and to a specific employee whose breach of trust matters. A targeted news investigation tied to alleged misconduct is closer to satisfying the test than generic press interest.
What about high-ranking employees?
Higher rank weighs in favor of compelling public interest because high-rank employees handle more public trust. But rank alone does not satisfy the test; rank is one factor of three.
Is this a content-based test?
Yes. The compelling public interest analysis is fact-specific and content-driven. A custodian must look at what the records actually say and tie it to the three factors.
Background and statutory framework
FOIA's three release elements. Request to a covered entity, public-record status, no exemption applies. The Division of Environmental Quality is a covered entity.
Personnel records vs. employee-evaluation records. Personnel records are subject to the Young v. Rice balancing test. Employee-evaluation records are subject to the stricter (c)(1) four-element test.
(c)(1) four-element test:
- Suspension or termination
- Administrative finality
- Relevance (record formed the basis)
- Compelling public interest
Termination notices as evaluation records. AG Opinions 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171 establish that termination letters stating grounds qualify as evaluation records.
Compelling public interest framework. Watkins commentary at 238-39 (collecting AG opinions) identifies the three factors. Watkins at 235 makes the explicit point that the mere fact of suspension or termination is not enough, citing AG Opinions 2009-021, 2008-046, 2006-106, 2005-032.
Confidentiality purpose. "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." AG Op. 96-168.
Citations
Statutes:
- A.C.A. § 25-19-103 (FOIA definitions)
- A.C.A. § 25-19-105 (exemptions; (c)(1) employee-evaluation release; (c)(3) AG review)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- Pulaski County 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
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466
Commentary:
- John J. Watkins et al., The Arkansas Freedom of Information Act 235, 237-39 (6th ed. 2017)
Other AG opinions referenced:
- 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171 (termination letters as evaluation)
- 2016-084, 2015-108 (compelling public interest factors)
- 2009-021, 2008-046, 2006-106, 2005-032 (rejecting per se public interest in termination)
- 96-168 (confidentiality purpose)
- 2008-065 (public interest)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-106
October 3, 2025
Sonny Albarado
Editor-in-Chief
Arkansas Advocate
Via email only: [email protected]
Dear Mr. Albarado:
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 your correspondence, the Arkansas Advocate requested resignation letters and termination notices for employees of the Division of Environmental Quality from January 1, 2023, through the date of the request. The records custodian released the resignation letters but withheld termination notices for three employees, citing privacy concerns. After the Advocate challenged the denial, redacted termination notices, excluding employee names and personnel numbers, were released, dated January 19, 2023; January 13, 2025; and June 12, 2025. The Advocate then contested the redactions, arguing that the names are of public interest. On September 26, 2025, a spokesperson for the Department of Energy and Environment, which oversees the Division, responded that the notices are evaluation records, were mistakenly disclosed, and are not subject to disclosure under the FOIA.
You have now requested that I review the custodian's decision to determine whether it is consistent with the FOIA. You argue that "[t]he dismissal of a public employee, regardless of the reason, is of public interest, and records associated with that dismissal should be disclosable under the FOIA."
RESPONSE
In my opinion, the custodian's decision regarding the classification and withholding of termination notices is consistent with the FOIA.
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 Division of Environmental Quality, 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. Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the documents' 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.
-
Classification of termination notices. 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. Therefore, the three termination notices at issue qualify as employee evaluations.
-
Test for release. Employee-evaluation records 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 exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers.
- Application. Upon review, the first and third prongs are satisfied for all the records: all three employees were terminated, and each notice recounts the reasons for termination, making the records relevant to the disciplinary decisions.
The second prong, administrative finality, is satisfied for at least one record and possibly all three. The January 19, 2023 termination appears to be administratively final. But there is insufficient information to determine whether the January 13, 2025 and June 12, 2025 terminations have reached final administrative resolution.
As for the fourth prong, compelling public interest, the conduct described in the termination notices does not rise to the level of gross incompetence or breach of public trust. There is no related public controversy, and the employees appear to have held lower-ranking, non-managerial positions.
You argue that the "dismissal of a public employee, regardless of the reason, is of public interest, and records associated with that dismissal should be disclosable under the FOIA." But this Office and the leading commentators on the FOIA have consistently rejected that view: "[T]he mere fact that an employee has been suspended or terminated does not mean that the records should be made public; if that were the case, the 'compelling public interest' phrase would be redundant ...."
In my opinion, that reasoning remains sound, and the custodian's determination that no compelling public interest exists in the release of the termination notices is consistent with the FOIA.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General