I'm a journalist asking for state employee termination notices. Why won't the agency release them?

Plain-English summary

The Arkansas Advocate requested resignation letters and termination notices for Division of Environmental Quality employees. The agency released the resignation letters, initially withheld three termination notices, then released redacted notices before saying they had been disclosed by mistake. The editor asked the AG to review the final decision to withhold them.

The AG agreed with the custodian. Each notice stated the grounds for termination, so he classified the three notices as employee-evaluation records. Such records may be released only if the employee was suspended or terminated, the proceeding reached final administrative resolution, the record formed a basis for that decision, and the public has a compelling interest in disclosure.

The AG found termination and relevance for all three notices. Finality appeared satisfied for the January 2023 notice; he lacked enough information to decide finality for the January and June 2025 notices. He found no compelling public interest for any of them: the described conduct did not amount to gross incompetence or breach of public trust, there was no related public controversy, and the employees appeared to hold lower-ranking, non-managerial jobs. Because the compelling-interest element failed, the custodian's withholding was consistent with FOIA.

What this means for you

If you request termination notices

The reason for termination matters to the FOIA analysis. These notices stated grounds and were treated as employee evaluations. The AG rejected the claim that every public employee dismissal automatically creates a compelling public interest. He considered the conduct, any related public controversy, and the employees' positions. This opinion does not decide how to classify a notice that gives no grounds.

If you are a records custodian

Classify the actual record first. For a termination notice stating the grounds, apply all four employee-evaluation release conditions. The AG found the first and third conditions met here, could not establish finality for two notices, and found no compelling public interest for any of them. An initial mistaken disclosure did not change his conclusion about the custodian's later withholding decision.

Common questions

Why were these termination notices employee evaluations?

They recounted the reasons for terminating each employee. The AG said a termination letter stating grounds qualifies as an employee-evaluation record.

Are termination notices always confidential?

The opinion does not establish that rule. It applies the employee-evaluation test to the three notices he reviewed, which stated grounds for termination. He did not analyze a notice without grounds.

Did the AG decide whether all three terminations were administratively final?

No. The January 2023 termination appeared final, but he said he had insufficient information on the January and June 2025 terminations. His compelling-public-interest conclusion was enough to uphold withholding all three notices.

Does public interest in government employee dismissals satisfy the test?

No, according to the AG. A general interest in employee performance or the mere fact of termination does not by itself meet the statutory compelling-public-interest requirement. He considered the nature of the conduct, related controversy, and position held.

Background and statutory framework

A.C.A. § 25-19-105(c)(1) requires termination or suspension, administrative finality, relevance to the disciplinary decision, and compelling public interest before employee-evaluation records may be released. The opinion quotes commentary identifying the nature of the infraction, related public controversy, and employee position as factors for the last requirement. It evaluates these three notices under that test, not under the separate personnel-record privacy test.

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 Cnty. 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

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

Original opinion text

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.

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

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Opinion No. 2025-106
Page 2

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 Division of Environmental Quality, which is a public entity subject to the FOIA. And the records at issue appear to be public records.2 Because these records are held by a public entity, they are presumed to be public records,3 although that presumption is rebuttable.4 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 files5 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.6 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.7

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

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2
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). 3 Id.
4
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)). 5 “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). 6 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
7
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-

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Opinion No. 2025-106
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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. 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.8 And this office has consistently opined that a termination letter qualifies as an evaluation record when it states the grounds for the termination. 9 Therefore, the three termination notices at issue qualify as employee evaluations.

3. Test for release. Employee-evaluation records 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).10

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

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. 8 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
9
E.g., Ark. Att'y Gen. Ops. 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171.
10
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

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Opinion No. 2025-106
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within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement.11

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.12 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.13

4. 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 ….”14

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.

11
Watkins, et al., supra note 5, at 238–39; see also Ark. Att’y Gen. Ops. 2016-084, 2015-108.

Watkins, et al., supra note 5, at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present 12

when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue.”). 13 E.g., Ark. Att’y Gen. Op. 96-168.
14
Watkins, et al., supra note 5, at 235; see also Ark. Att’y Gen. Ops. 2009-021, 2008-046, 2006-106, 2005-032.

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Opinion No. 2025-106
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Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General