Can a prosecutor's office release a 'Brady list' spreadsheet of officer misconduct, plus emails from law enforcement about Brady issues, to a FOIA requester?
Subject
Whether the Pulaski County Prosecuting Attorney's office can release: (a) emails between prosecutors and law enforcement about potential Brady information on a state's witness, and (b) three spreadsheets of substantiated misconduct allegations against named officers, with proposed redactions for officers whose cases did not result in suspension or termination. AG Tim Griffin concluded the release plan is consistent with FOIA, with one important fact-specific caveat: officers who resigned in lieu of termination may count as constructively terminated and trigger release.
Plain-English summary
The Pulaski County Prosecuting Attorney's office got two FOIA requests. The first wanted prosecutor-to-law-enforcement emails about potential Brady information (exculpatory or impeachment material that prosecutors must disclose to criminal defendants under Brady v. Maryland) on a particular state's witness. The second wanted "any and all records regarding substantiated allegations of misconduct or violations of internal department policy or criminal law by specific law enforcement officers" produced to the prosecutor's office by police agencies.
The custodian (Will Jones, Sixth Judicial District prosecutor) identified three spreadsheets and three accompanying emails as responsive. He proposed releasing the emails, releasing portions of the spreadsheets pertaining to officers who had been suspended or terminated through a final administrative process, and redacting the portions about officers whose alleged misconduct did not result in that level of discipline. He also proposed redacting some columns as not responsive to the requests at all.
The AG broke this into pieces.
Emails: personnel records, releasable. The emails are "mixed records" that touch on identified officers. They were not created by or at the behest of the employer to evaluate the officers (they are inter-agency communications about Brady information for a witness in a criminal case), so they fall on the personnel-record side of the FOIA two-track. Under the Young v. Rice balancing test, the AG concluded there is nothing in the emails that, if released, would constitute a clearly unwarranted invasion of personal privacy. Release is consistent with FOIA.
Spreadsheets: evaluation records, mixed treatment. The spreadsheets list officer names, dates, allegations, findings (substantiated or not), and current employment status. The AG analogized them to suspension/termination letters that explain the basis for discipline, where the AG has long held that a letter that just states the fact of discipline is a personnel record but a letter that explains the basis is an evaluation record. The spreadsheets explain the basis (the underlying allegations and the employer's findings), so they are evaluation records.
For evaluation records, all four elements of the FOIA test must be met for release: (1) suspension or termination, (2) administratively final, (3) records formed a basis for the decision, (4) compelling public interest. For officers who were suspended or terminated through a final administrative process, all four elements are met. Element 4 is particularly easy here: AG opinions consistently treat law-enforcement officers as invested with significant public trust, so violations of office policy by those officers usually create a compelling public interest in disclosure. The portions of the spreadsheets about those officers must be released.
For officers whose alleged misconduct did not result in suspension or termination, elements 1 and 2 fail at the threshold. The evaluation records about those officers stay confidential. The custodian's plan to redact those portions is consistent with FOIA.
The constructive-termination caveat. The AG flagged a fact-specific issue. Some officers on the spreadsheets resigned while their misconduct investigations were still pending. Resignations come in two flavors: voluntary and "in lieu of termination." If an officer was facing certain, impending termination and resigned to avoid it, that is a "constructive termination" and satisfies element 1 of the four-part test. AG opinions have held this consistently (Op. 2024-045, 2023-077, 2012-019). The custodian must look at each pending-investigation resignation and decide whether it was truly voluntary or was a constructive termination. If voluntary, withhold. If constructive termination, evaluate the other three elements; if all met, release.
Non-responsive column redactions. The custodian proposed redacting some columns as not responsive to the FOIA requests. The AG declined to opine on those redactions because determining responsiveness is the custodian's call, not the AG's. A.C.A. § 25-19-105(c)(3)(B)(i) only authorizes the AG to review whether the disclosure decision is consistent with FOIA, not whether the request was correctly scoped.
What this means for you
If you are a prosecutor handling a similar Brady or law-enforcement-misconduct request
Three practical points. First, sort responsive records into the two FOIA tracks: inter-agency emails about Brady information are usually personnel records (releasable under Young v. Rice), and substantiated-misconduct spreadsheets that explain the basis for findings are usually evaluation records (release requires all four elements). Second, on the constructive-termination question, document your factual analysis. If you have evidence the resignation was offered in the face of certain, impending termination (e.g., a pre-disciplinary notice was issued, the chief had recommended termination, the resignation came within days of a sustained-misconduct finding), treat it as a constructive termination. If the officer resigned at a much earlier stage with no clear path to termination, treat it as voluntary. Third, do not overreach on responsiveness redactions. The AG declined to backstop responsiveness calls because they are within the custodian's discretion, but if you are wrong about responsiveness, you have effectively created a new FOIA exemption that does not exist.
If you are a journalist or transparency advocate filing for police misconduct records
This opinion is your roadmap for what you can get. Substantiated misconduct against suspended-or-terminated officers (or constructively terminated officers) must be released, with the four-part test satisfied for police misconduct in nearly every case. What you cannot get under this opinion: misconduct allegations against officers whose discipline never reached suspension or termination. If an officer was disciplined with a written reprimand, demotion, or remedial training, the evaluation record stays confidential under FOIA's four-part test. If you want that information, your routes are different (e.g., officer-personnel-file legislation, court orders in criminal cases requiring Brady disclosure to defendants).
The constructive-termination angle is worth pushing. If you suspect an officer "resigned" in the face of certain termination, ask the custodian whether they applied the constructive-termination analysis from Op. 2024-045, 2023-077, and 2012-019. The answer should be yes, with documented reasoning.
If you are a police chief or law-enforcement records custodian
When a Brady-related spreadsheet leaves your custody and lands at the prosecutor's office, you have lost direct control over how it is processed under FOIA. The prosecutor will apply the four-part test. To preserve flexibility, two practices help: (1) keep separate documentation of the discipline outcome (sustained, unsustained, exonerated, unfounded) so the prosecutor can quickly map each officer to the four-part test, and (2) document the procedural posture of any resignation in lieu of termination so the prosecutor can apply the constructive-termination analysis with confidence rather than guessing.
If you are an officer on a substantiated-misconduct spreadsheet
Whether your name comes out depends on the discipline outcome. Sustained allegation that resulted in administratively final suspension or termination: name comes out. Sustained allegation that resulted in lesser discipline (reprimand, training, demotion): name stays confidential. Resignation while under investigation: depends on whether you would have been terminated had you stayed (constructive-termination analysis). If you believe the constructive-termination test should not apply to your departure, the custodian is the decisionmaker; you can document your view but cannot block release if the custodian concludes constructive termination.
If you are a criminal defendant or defense attorney needing Brady material
This opinion is a FOIA opinion, not a criminal-discovery opinion. Brady disclosure obligations to a criminal defendant operate under the U.S. Constitution, Arkansas criminal procedure, and rules of court, not under FOIA. The fact that a record is FOIA-confidential does not relieve a prosecutor of a constitutional Brady obligation. If the prosecutor refuses to disclose Brady material on FOIA-confidentiality grounds, file a motion in the criminal case for in camera review.
Common questions
Q: Why are inter-agency emails about Brady information classified as personnel records rather than evaluation records?
A: They were not created by or at the behest of the officer's employer (the police department) to evaluate the officer. They were created by the prosecutor and the police department for a different purpose: tracking what Brady-impeachment material exists on a witness who may testify in a criminal case. That purpose makes them personnel records under the Thomas v. Hall framework.
Q: Why are the spreadsheets evaluation records?
A: They go beyond identifying who was investigated for what. They include the underlying allegations and the employer's findings about whether each allegation was sustained. That makes them analogous to a termination letter that "details the incidents that gave rise to the discipline" (Op. 2001-276), which is the template for the evaluation-record category under Thomas v. Hall (2012).
Q: What's a "constructive termination" and why does it matter here?
A: An officer who resigns "in the face of certain, impending termination" is treated as constructively terminated for purposes of the four-part FOIA test (AG Ops. 2024-045, 2023-077, 2012-019). It matters because it can flip an officer from "redacted" (no formal termination, evaluation record stays confidential) to "released" (constructively terminated, evaluation record subject to release if other three elements are met).
Q: Why does the public have a "compelling interest" in police misconduct records?
A: AG opinions consistently treat law-enforcement officers as invested with significant public trust because they exercise the state's coercive power. When that trust is violated through misconduct, especially substantiated misconduct, the public has a compelling interest in knowing about it (Ops. 2023-071, 2023-013, 2014-129, 2006-026 cited in this opinion). The compelling-interest analysis is easier for police misconduct than for many other public-employee categories.
Q: Can the prosecutor release the spreadsheets without redactions to defense attorneys?
A: This opinion does not address that. The FOIA framework controls public release. Defense attorneys may have separate access through criminal discovery rules and Brady. The two regimes operate independently.
Q: What happens if the prosecutor releases a spreadsheet that contains an officer who was actually a constructive termination, and treats it as a voluntary resignation?
A: The officer could complain through the request-side AG opinion mechanism, but only if the officer is the "subject" of the records. More likely, the requester (or anyone with standing) could challenge the redaction in court under FOIA. The remedy in court is an order to produce, not damages.
Q: Can the prosecutor refuse to compile the spreadsheet from raw data?
A: A.C.A. § 25-19-105(d)(2)(C) says custodians are not required to "compile information or create a record." But that defense was unavailable here because the spreadsheets already existed. They had been produced to the prosecutor's office by police agencies. The prosecutor was not creating them in response to the request.
Background and statutory framework
Arkansas FOIA's two-track framework distinguishes personnel records (open with redactions for clearly unwarranted invasions of personal privacy under Young v. Rice) from employee-evaluation/job-performance records (open only when all four elements are met under A.C.A. § 25-19-105(c)(1)).
The four-part test for evaluation records: suspension or termination, administrative finality, relevance (records formed a basis for the decision), compelling public interest. Element 4 is fact-specific. AG opinions identify three recurring factors: nature of the infraction (illegal conduct, public-trust violation, gross incompetence, sexual harassment, public-safety risk); existence of public controversy; employee's rank.
For law-enforcement officers, the compelling-interest element is generally easier because of the public-trust nature of the position. Ops. 2023-071, 2023-013, 2014-129, and 2006-026 establish a working presumption that violations of office policy by police create a compelling public interest in disclosure.
A document analogous to a termination letter that explains the basis for discipline is an evaluation record (Op. 2001-276). A document that just records the fact of discipline (without explanation) is a personnel record.
Constructive termination: a resignation offered "in the face of certain, impending termination" satisfies element 1 of the four-part test (Ops. 2024-045, 2023-077, 2012-019).
Mixed records (those that contain both personnel and evaluation content, or evaluation content for multiple individuals) require the custodian to apply the relevant test to each portion (Op. 2020-037 series).
The custodian's responsibility under A.C.A. § 25-19-105(a)(2)(C) is to determine which records are responsive to the request and whether the request is sufficiently specific to enable a reasonable-effort search. Determining responsiveness is the custodian's call, not the AG's. The AG's review under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to whether the disclosure decision is consistent with FOIA.
Citations and references
Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions and procedures)
Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation record definition)
- Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
- Pulaski County v. Arkansas Democrat-Gazette, 370 Ark. 435, 260 S.W.3d 718 (2007)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2026-020
February 12, 2026
Mr. Will Jones
Prosecuting Attorney
Sixth Judicial District
224 South Spring Street
Little Rock, Arkansas 72201
Dear Mr. Jones:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the custodian 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 Pulaski County Prosecuting Attorney's Office received two FOIA requests. The first request asks for emails between members of your office and law enforcement "about potential Brady information associated with a State's law enforcement witness, including attachments." The second request seeks "any and all records regarding substantiated allegations of misconduct or violations of internal department policy or criminal law by specific law enforcement officers that has been produced to [the Pulaski County Prosecuting Attorney's Office] by law enforcement agencies."
You have identified three spreadsheets and three accompanying emails as responsive to this request, and you have provided them for my review, along with proposed redactions to the spreadsheets. You ask whether your decision to release the records with the proposed redactions is consistent with the FOIA.
RESPONSE
In my opinion, the records you have provided for my review are mixed records. The emails are personnel records of the listed employees, and there is nothing in them that, if released, would constitute a clearly unwarranted invasion of personal privacy. Therefore, your decision to release the emails is consistent with the FOIA.
The spreadsheets are the evaluation records of the listed employees. You propose releasing the evaluation records for those employees who have met the four-part test for release of evaluation records. And you propose withholding the evaluation records of employees who have not met the four-part test for release of evaluation records. In my opinion, this decision is also consistent with the FOIA.
Finally, you propose redacting certain columns from the spreadsheet because they are not responsive to the FOIA requests. Determining which records are responsive to a FOIA request falls outside the scope of my statutory 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 Pulaski County Prosecuting Attorney's Office, 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." 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.
2. Personnel 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. 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 pieces of information that must be redacted. For instance, the FOIA exempts the personal contact information of public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.
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.
If a document qualifies as an employee-evaluation record, the document 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).
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. Mixed records. Some employee-related records are "mixed records," which means they are (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record. When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.
5. Classification and disclosure of the emails. The emails are best classified as the personnel records of the employees they mention because they pertain to the employees but were not created by or at the behest of the employer to evaluate those employees. Further, the emails contain no information that, if disclosed, would constitute "a clearly unwarranted invasion of personal privacy." Thus, your decision to release the emails is consistent with the FOIA.
6. Classification and disclosure of the spreadsheets. The spreadsheets are mixed records because they contain the evaluation records of more than one officer. The spreadsheets list officer names, dates, allegations of misconduct, findings regarding the allegations, and the current employment status of officers.
These spreadsheets are analogous to letters of suspension or termination. As this Office has consistently opined, a suspension or termination letter may qualify as either a personnel record or as an evaluation record, depending on the letter's contents. When a suspension or termination letter contains no explanation of the grounds for disciplinary action, it constitutes a personnel record. But when it sets forth the grounds for the suspension or termination, it qualifies as an evaluation record.
Here, the spreadsheets do more than identify the officers involved in alleged misconduct. Rather, they include the underlying allegations and the employer's determinations as to whether the allegations were sustained. These spreadsheets are akin to letters of suspension or termination that explain the basis for the disciplinary action taken. As such, the spreadsheets are properly classified as evaluation records.
Therefore, your decision to classify the spreadsheets as the evaluation records of the named employees is consistent with the FOIA. Their release must therefore be analyzed under the FOIA's four-part test for disclosure of employee-evaluation records.
For some of the employees, all four elements of the test have been met: (1) the employees were suspended or terminated; (2) the suspension or termination is administratively final; (3) the records are relevant because they detail the grounds for suspension or termination; and (4) the public has a compelling interest in the disclosure of the records. For other employees, however, the alleged misconduct did not result in suspension or termination, so the first two elements of the test have not been satisfied. As a result, the evaluation records for those employees are not subject to disclosure. Accordingly, your decision to release only the portions of the spreadsheets pertaining to those employees who meet the four-part test, and to redact the portions pertaining to those who do not, is consistent with the FOIA.
I will note, however, that some of the employees listed appear to have resigned while the investigations were still pending. You have proposed withholding their information on the basis that the allegations did not result in suspension or termination. This raises the question of whether those employees 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," it qualifies as a "constructive termination" and satisfies the first element of the four-part test for disclosure of evaluation records.
If, based on the facts available to you, you determine that the resignations were truly voluntary, then your decision to withhold the portions of the spreadsheets pertaining to those employees is consistent with the FOIA. But if you determine that any of the resignations amounted to constructive terminations, then you must proceed to the remaining elements of the four-part test. And if all those elements are met, the portions of the spreadsheets pertaining to those employees should be released. But because I am not a factfinder when issuing opinions, I cannot determine whether any of the employees in question were constructively terminated.
7. Redactions to nonresponsive information. Finally, you have explained that you have redacted certain columns from the spreadsheets because they contain information that is not responsive to the FOIA requests. Determining which records are responsive to a particular FOIA request falls outside the scope of my statutory authority under A.C.A. § 25-19-105(c)(3)(B)(i). Accordingly, I offer no opinion on whether those redactions are consistent with the FOIA.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General