I resigned in lieu of termination from a state job. Can my former employer release my voluntary separation form, resignation letter, and the email and memo about the events that led to my forced resignation?

Plain-English summary

The Arkansas Department of Transportation received a FOIA request for records related to David Neal's employment. The custodian planned to release five records:

1. A voluntary separation form (with one redaction).
2. Neal's resignation letter.
3. An email stating that Neal was given the opportunity to resign or face termination.
4. A memorandum detailing the events that led to a disciplinary hearing and Neal's resignation.
5. Information printed from the Arkansas Department of Finance and Administration website.

Neal, as the subject, asked the AG to review under A.C.A. § 25-19-105(c)(3)(B)(i). Attorney General Tim Griffin found the custodian's decision consistent with FOIA and walked through each record:

Records 1 and 2 (separation form and resignation letter): personnel records, release with redactions. They pertain to Neal but were not created by the employer to evaluate Neal's performance. The redaction of Neal's employee identification number is correct under (b)(11). Releasing these records does not constitute an unwarranted invasion of privacy.

Records 3 and 4 (email and memorandum): evaluation records. The email was created by the employer and evaluates Neal's performance. The memorandum was generated while investigating allegations of misconduct.

The four-part test for releasing evaluation records:

1. Suspension or termination. Neal was not suspended, but he resigned in lieu of termination. The AG applies the "constructive termination" doctrine: a resignation offered in the face of "certain, impending termination" qualifies as a termination for FOIA purposes (citing Ops. 2023-077, 2012-019, 2011-084). Met.
2. Finality. The AG inferred from the materials that no appeals were pending. Met (assuming finality).
3. Relevance. The email and memorandum detail the events that formed the basis for Neal's forced resignation. Met.
4. Compelling public interest. The AG concluded this is met because Neal was a law enforcement officer; the AG has consistently held that "law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect policy violations and a breach of the public trust." Met.

So the email and memorandum are releasable.

Record 5 (DFA website printout): outside the scope. The website printout is neither a personnel record nor an evaluation record, so the AG cannot review the custodian's decision under § 25-19-105(c)(3)(B)(i). The custodian can release it on the general FOIA disclosure rule.

What this means for you

If you resigned in lieu of termination from a public-sector job

Your forced resignation is treated as "constructive termination" for FOIA purposes. That means the documents the agency relied on to push you toward resignation can become public if the four-part test is satisfied. Specifically:

• A factually-clear "resign or face termination" choice (in writing or on the record) makes the constructive-termination prong easy to meet.
• If the disciplinary process is final (no appeals pending), the finality prong is met.
• If documents in your file detail what went wrong, the relevance prong is met.
• For law enforcement, the compelling-public-interest prong is presumed.

Practical takeaway: when a forced resignation involves law enforcement misconduct, the disciplinary file becomes public. That's a substantive shift from the rule-of-thumb assumption that resignation insulates personnel records.

If you're a FOIA custodian at a state agency

Resignation in lieu of termination is constructive termination. Don't treat resignations as automatically blocking the four-part test. Look for:

• A documented choice between resignation and termination (email, memo, "resign in lieu of termination" notation on a separation form).
• The investigation file that drove the choice.
• Any final-decision documents.

If the employee was law enforcement, the compelling-public-interest prong is essentially built in. For non-law-enforcement employees, that prong is more fact-specific (severity of infraction, public-trust implications, position in the agency).

If you're a journalist filing FOIA requests on government employee misconduct

This opinion is favorable for you in two ways:

1. Constructive termination is a real category. Don't accept "the employee resigned, so the file is sealed."
2. Law enforcement gets the compelling-public-interest presumption. That's a substantial lift on the four-part test.

For non-law-enforcement employees, you'll need to show the compelling public interest based on the specific facts. The Watkins commentary cited by the AG identifies three factors: (a) nature of the infraction (especially public-trust violations), (b) existence of a public controversy related to the agency, (c) the employee's position within the hierarchy.

If you're an employment attorney for a state employee

The constructive-termination doctrine cuts both ways. Yes, your client's separation file gets released if the documents detail misconduct. But that doesn't mean the agency can release everything. Specifically:

• Personal identifying information (employee ID, DOB, SSN, driver's license) must still be redacted (b)(11), (b)(13).
• Personnel-record portions still get the Young v. Rice balancing test.
• Evaluation portions get released only after the four-part test, including a finding of finality.

If the client wants to challenge release, the strongest arguments are around finality (still on appeal) or the compelling-public-interest prong (especially for non-law-enforcement employees).

Common questions

Q: What's "constructive termination"?
A: A resignation offered under threat of imminent firing. The Arkansas AG has consistently held that when an employee is given a choice between resigning and being terminated, and the employee chooses to resign to avoid the termination, the resignation counts as a termination for FOIA purposes. Ops. 2023-077, 2012-019, 2011-084.

Q: How is "compelling public interest" determined?
A: The leading commentary (Watkins on FOIA) identifies three factors:

1. The nature of the infraction (with particular concern for violations of public trust or gross incompetence).
2. The existence of a public controversy related to the agency.
3. The employee's position (high-ranking employees usually involve more compelling interest than rank-and-file).

Q: Are law enforcement officers always treated as having a compelling public interest in their misconduct records?
A: Effectively yes, when the misconduct involves policy violations or breach of public trust. The AG line of opinions (2024-074, 2023-071, 2014-129, 2009-146, 2006-158) supports this presumption.

Q: What if I appeal the disciplinary action?
A: An open appeal defeats the finality prong. While the appeal is pending, the records stay sealed under § 25-19-105(c)(1).

Q: My agency redacted my employee ID number. Can I object?
A: No. Employee personnel/identification numbers are exempt under (b)(11) because they "presumably provide access to computerized data." Redaction is required, not discretionary.

Q: What happens to the website printout?
A: It's a publicly available record from a state agency website. It's not a personnel record, not an evaluation record, and not within the scope of the (c)(3)(B)(i) review. The custodian can release it.

Background and statutory framework

Arkansas FOIA's two-bucket framework for employee-related records:

• Personnel records (§ 25-19-105(b)(12)): pertain to the employee, not created by employer for evaluation. Released subject to Young v. Rice balancing test.
• Evaluation records (§ 25-19-105(c)(1)): created by or at employer's behest, to evaluate, detailing performance. Sealed unless four-part test met.

The four-part test:

1. Suspension or termination (including constructive termination).
2. Administrative finality.
3. Records formed basis for the decision.
4. Compelling public interest.

The constructive-termination doctrine bridges the gap between resignation and termination. Without it, public employees could insulate their disciplinary records by accepting a resignation deal. The AG has built up the doctrine over multiple opinions to prevent that loophole.

The compelling-public-interest analysis comes mostly from the leading commentary (Watkins et al., The Arkansas Freedom of Information Act, 6th ed.). The AG defers to commentary because the FOIA itself doesn't define the phrase. The factors are designed to distinguish "general public interest in any government employee's conduct" (not compelling) from "specific public interest in misconduct affecting public trust" (compelling).

Citations and references

Statutes:
- A.C.A. § 25-19-103, definitions
- A.C.A. § 25-19-105: exemptions and (c)(3)(B)(i) review

Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012), three-element FOIA disclosure test
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), rebuttable public-record presumption
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), personnel-records balancing test
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), substantial privacy in intimate detail
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012), evaluation-record three-element definition
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (2019), Court of Appeals adopting AG's definition

AG opinion line on constructive termination:
- Op. 2023-077
- Op. 2012-019
- Op. 2011-084

AG opinion line on compelling public interest in law-enforcement misconduct:
- Op. 2024-074
- Op. 2023-071
- Op. 2014-129
- Op. 2009-146
- Op. 2006-158

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. 2025-127

December 16, 2025

Mr. David Neal
Via email only: [email protected]

Dear Mr. Neal:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the subject 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.

You report that someone made a FOIA request to the Arkansas Department of Transportation for certain records, and the custodian determined that some records related to your employment were responsive to this request. The custodian has provided you with copies of the five records he intends to release: (1) a voluntary separation form with one redaction; (2) your letter of resignation; (3) an email stating that you were given the opportunity to resign or face termination; (4) a memorandum detailing the events that led to a disciplinary hearing and your resignation; and (5) information printed from the Arkansas Department of Finance and Administration's website. You ask if the custodian's decision to release these records is consistent with the FOIA.

RESPONSE

The voluntary separation form and resignation letter are best classified as personnel records, and the email and memorandum are best classified as employee-evaluation records. In my opinion, the custodian's decision to release these records is consistent with the FOIA. The record containing information printed from the Arkansas Department of Finance and Administration's website appears to be neither a personnel record nor an employee-evaluation record. Thus, it falls outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B)(i).

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.

The first two elements appear to be met. The request was made to the Arkansas Department of Transportation, 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. Accordingly, given that I have no information to suggest that the presumption can be rebutted, I will focus on whether any exceptions prevent the documents' disclosure.

The FOIA contains two exemptions for two groups of documents normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two distinct groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly. When custodians assess whether either of these exceptions applies to a particular record, they must first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2. Personnel records. While the FOIA does not define the term "personnel records," this office has consistently opined that personnel records are all records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee. A personnel record is open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 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. The balancing test, which takes place "with the scale tipped in favor of public access," has two steps.

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 de minimis privacy interest. If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public's interest in disclosure.

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 interest. The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

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, such as personal contact information of public employees; employee personnel numbers or identification codes; dates of birth of public employees; social security numbers; and driver's license numbers.

3. Employee-evaluation records. Although the FOIA itself does not define the phrase "employee evaluation or job performance" record, the Arkansas Supreme Court has adopted this office's view that such records are (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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA 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 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.

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, 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.

4. Separation form and letter. The voluntary separation form and resignation letter are best classified as your personnel records. They pertain to you but were not created by or at the behest of your employer to evaluate your performance. Releasing these records would not constitute an unwarranted invasion of privacy under the balancing test. Furthermore, the custodian has properly redacted your employee identification number from the voluntary separation form.

5. Email and memorandum. The email is an evaluation record because it was created by your employer, and it evaluates your performance or lack of performance on the job. Likewise, the memorandum is an evaluation record because it was generated while investigating allegations of your misconduct, and it details the incidents that gave rise to those allegations.

Employee-evaluation records cannot be released unless the above four-part test for release is met. The first question, then, is whether you were suspended or terminated. You were not suspended, but you did resign in lieu of termination. This is evident from the email, which states that you were given the opportunity to resign or face termination, and the voluntary separation form, which says that you resigned "in lieu of termination." This office has consistently held that if a resignation is forced, that is, if it is offered in the face of "certain, impending termination," then it qualifies as a "constructive termination" that meets the first element for the disclosure of evaluation records.

Because you resigned in lieu of termination, the test proceeds to the second element: determining whether the suspension or termination is final. Although not explicitly stated in your correspondence, I gather from the information you have provided that there are no appeals pending, and your resignation is final. If that understanding is correct, the second element of the test is met.

The third element is also met because the contents of the email and the memorandum detail the events that formed the basis for your forced resignation.

The final element of the test for release of an employee-evaluation record is whether the public has a compelling interest in the disclosure of the record. The existence of a "compelling public interest" in disclosure necessarily depends on all the surrounding facts and circumstances. But I believe that the final element has been met in this case because, as this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect policy violations and a breach of the public trust.

6. Website printout. The final record you have provided for my review is a printout from a page on the Department of Finance and Administration's website. This printout appears to be a public record that is neither a personnel record nor an employee-evaluation record. Thus, it falls outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B)(i).

Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General