Can my city release a police officer's termination letter and internal affairs file to a FOIA requester in Arkansas?

Subject

City of Cabot received a FOIA request for the "termination/resignation letter, internal affairs investigation, and complaints" pertaining to Officer Son Le. The custodian wanted to release a termination letter, a letter of reprimand, and an investigation file. Officer Le objected. AG Griffin, applying the FOIA four-part test for employee-evaluation records, concluded the release was consistent with the Arkansas FOIA, but other officers' names should be reviewed for redaction.

Plain-English summary

This is a textbook FOIA application opinion. Someone asked the City of Cabot for records about Officer Son Le's termination, the related internal affairs investigation, and any complaints. The records custodian had unredacted copies of three documents (a termination letter, a letter of reprimand, and an internal affairs investigation file) and decided they were releasable. Officer Le objected. Both the officer and the city attorney asked the AG to weigh in under A.C.A. § 25-19-105(c)(3)(B)(i), which lets custodians, requesters, or subjects of employee-related records request an AG opinion on whether a release decision is consistent with the FOIA.

The AG agreed with the custodian.

The Arkansas FOIA classifies employee-related records into two main groups, with very different release standards.

Personnel records are records that pertain to the employee but were not created by or at the behest of the employer to evaluate the employee. They are open to public inspection except where disclosure would constitute a "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court in Young v. Rice applied a balancing test, with the scale tipped in favor of public access: first, is the privacy interest more than minimal; if so, is it outweighed by public interest in disclosure.

Employee-evaluation or job-performance records 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. They are NOT released unless all four of these are true: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed a basis for that decision, and (4) there is a compelling public interest in disclosure.

For Officer Le's records, the AG concluded all four prongs were met. The officer was terminated. The termination was final. The records detailed the grounds for termination. And the public has a compelling interest because law enforcement officers are vested with significant public trust, and the AG's office has consistently held that there is "usually a compelling public interest in records that reflect violations of departmental policy" by officers.

The opinion also addresses the "mixed records" issue. Some employee-related records contain references to multiple employees. When that happens, the custodian must apply the personnel-record or evaluation-record tests separately for each employee whose information appears. So before releasing the records, the custodian needs to look at each mention of another officer and decide whether that officer's name (or other information about them) should be redacted.

The opinion also explains that a releasable personnel record may contain discrete information requiring redaction, such as public employees’ personal contact information under A.C.A. § 25-19-105(b)(13).

What this means for you

Officer Le and FOIA requesters

The AG found that the termination letter, reprimand and internal-affairs investigation file are evaluation records. On the facts presented, the four-part release test appears satisfied for Officer Le, and the custodian's decision to release those disciplinary records is consistent with FOIA. The opinion does not decide that every record about a terminated officer meets that test.

Records custodians

The opinion applies a separate disclosure test to each employee's information in a mixed record. These records mention other officers as well as Officer Le. The AG said the custodian should review whether those other officers' names are subject to release under the applicable tests or should be redacted. He did not order every other name removed.

Background and statutory framework

The Arkansas FOIA's general rule is that public records are subject to disclosure unless an exception applies. The first two elements of the disclosure test, drawn from Harrill & Sutter, PLLC v. Farrar (2012), are that the request must be directed to an entity subject to the FOIA and the requested document must be a public record. A "public record" under § 25-19-103(15)(A) is a writing or other record that constitutes a record of the performance or lack of performance of official functions carried out by a public official or employee. Records held by a public entity are presumed public, though that presumption is rebuttable per Pulaski Cnty. v. Ark. Democrat-Gazette (2007).

The third element is whether an exemption applies. For employee-related records, two categories matter:

Personnel records (§ 25-19-105(b)(12)). Records that pertain to an individual employee but were not created by or at the behest of the employer to evaluate the employee. Open to public inspection except where disclosure would constitute a clearly unwarranted invasion of personal privacy. Young v. Rice (1992) supplies the balancing test: the privacy interest must be more than minimal; if so, it must be weighed against public interest, with the scale tipped toward public access. The person resisting disclosure bears the burden under Stilley v. McBride (1998). The subjective objection of the employee whose records are at issue is irrelevant; the test is objective.

Employee-evaluation or job-performance records (§ 25-19-105(c)(1)). 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. Thomas v. Hall (2012); Davis v. Van Buren Sch. Dist. (2019). Not subject to release unless all four prongs are met:

1. Level of discipline: the employee was suspended or terminated.
2. Finality: there has been a final administrative resolution of the suspension or termination proceeding.
3. Relevance: the records formed a basis for the decision in that proceeding.
4. Compelling public interest: the public has a compelling interest in disclosure.

For the compelling-public-interest prong, leading commentators identify three factors: the nature of the infraction (with particular concern for violations of public trust or gross incompetence), the existence of a public controversy related to the agency, and the employee's position within the agency. A general interest in employee performance is not enough. But a link between a public controversy, an agency, and an employee committing a serious breach of public trust is.

The AG's office has consistently held that "law enforcement officers are invested with a significant public trust," so there is "usually a compelling public interest in records that reflect violations of departmental policy" by an officer. The AG found a compelling public interest for the disciplinary records at issue here.

Application to Officer Le's records. The termination letter qualifies as an evaluation record because it stated the grounds for termination. The letter of reprimand qualifies because it was created by the employer to evaluate the officer and detailed his performance. The internal affairs investigation file qualifies because it was created by the employer to evaluate the officer and detailed his performance.

The four-part test was met: terminated, final, relevant, and compelling public interest. So all three documents are releasable.

Mixed records. Some employee-related records reference more than one employee. The custodian must apply the appropriate test for each employee's information. Where a record contains the statements or conduct of other officers, the custodian must run the analysis for each named officer separately.

Possible redactions. The opinion explains that even a record meeting the applicable release test can contain information requiring redaction, such as public employees’ personal contact information under § 25-19-105(b)(13).

Common questions

Did the AG approve release of Officer Le's disciplinary records?

Yes. The AG said the four-part test appeared met for Officer Le and that the custodian's decision to release the termination letter, reprimand and investigation file was consistent with FOIA.

Are other officers' names automatically redacted?

No. The AG said these records also mention other officers and may be mixed records. The custodian should review whether each other officer's name is releasable under the applicable test or should be redacted.

Does termination alone make an evaluation record public?

No. The proceeding must be administratively final, the record must have formed a basis for the decision, and the public must have a compelling interest in disclosure. The AG found those elements appeared satisfied for these records concerning Officer Le.

Citations

• Arkansas FOIA statutes: A.C.A. § 25-19-103(15)(A) (definition of public records); § 25-19-105(b)(12) (personnel records); § 25-19-105(b)(13) (personal contact info redaction); § 25-19-105(c)(1) (employee-evaluation four-part test); § 25-19-105(c)(3)(B)(i) (AG opinion request authority); § 25-19-105(f) (additional redactions).
• General FOIA 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).
• Personnel records 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).
• Evaluation records cases: 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.

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2026-025

March 11, 2026

Officer Son Le
c/o Cabot City Attorney
101 North Second Street
Cabot, Arkansas 72023

Mr. Ben Hooper
Cabot City Attorney
101 North Second Street
Cabot, Arkansas 72023

Dear Officer Le and Mr. Hooper:

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 and the custodian of 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 received from the records custodian, the City of Cabot received a FOIA request for the “termination/resignation letter, internal affairs investigation, and complaints” pertaining to Officer Le. The custodian provided this Office with unredacted copies of three records he intends to release: a termination letter, a letter of reprimand, and an investigation file. The custodian has classified these documents as employee-evaluation records subject to release, but Officer Le objects to their disclosure. You ask whether the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian has correctly classified the termination letter, the letter of reprimand, and the investigation file as employee-evaluation or job-performance records. And because the four-part test for release of such records appears to be met, the custodian’s decision to release the records is also consistent with the FOIA. As discussed below, however, the names of other officers may need to be redacted from the records before release.

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Officer Son Le
Mr. Ben Hooper, Cabot City Attorney
Opinion No. 2026-025
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 City of Cabot—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 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” 5 and “employee evaluation or job performance records.” 6 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. 7 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. 8

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(15)(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 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”). 6 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”). 7 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 1999-147.
8
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, 1995-351, 1993-055. Officer Son Le Mr. Ben Hooper, Cabot City Attorney Opinion No. 2026-025 Page 3

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.” 9 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. 10 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 11

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. 12 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. 13

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. 14 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. 15

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. 16 For instance, the FOIA exempts the personal

9
A.C.A. § 25-19-105(b)(12).
10
308 Ark. 593, 826 S.W.2d 252 (1992).
11
John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
12
Young, 308 Ark. at 598, 826 S.W.2d at 255.
13
Id.
14
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
15
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 1994-198; Watkins et al., supra note 111, at 207.
16
A.C.A. § 25-19-105(f).
Officer Son Le
Mr. Ben Hooper, Cabot City Attorney
Opinion No. 2026-025
Page 4

contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses. 17

3. Employee-evaluation records. The second relevant exception includes “records generated
   while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 18

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). 19

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:

[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. 20

17
See id. § 25-19-105(b)(13).
18
E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
19
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
20
Watkins et al., supra note 111, at 238–39.
Officer Son Le
Mr. Ben Hooper, Cabot City Attorney
Opinion No. 2026-025
Page 5

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, 21 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. 22 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. 23

4. Application. This Office has consistently opined that a termination letter qualifies as an
   evaluation record when it states the grounds for the termination. 24 Similarly, the custodian has correctly classified the letter of reprimand as an employee evaluation because it was created by the employer to evaluate Office Le, and it details his performance or lack of performance on the job. Finally, this Office has long held that an internal-affairs investigation file is an evaluation record because it was created by the employer to evaluate an employee, and it details the employee’s performance or lack of performance on the job. 25

The four-part test for release of these employee-evaluation records also appears to be met because (1) Officer Le was terminated; (2) the termination appears to be final; (3) the records detail the grounds for termination; and (4) there is a compelling public interest in disclosure of the records in question. Regarding the fourth element, this Office has consistently opined that because law enforcement officers are invested with a significant public trust, there is usually a compelling public interest in records that reflect violations of departmental policy. 26 Therefore, the custodian’s decision to release these disciplinary records is consistent with the FOIA.

5. Other employees’ names. While these records are releasable as to Officer Le, the records also
   reference the identities, statements, and conduct of other officers. This Office has consistently

21
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”). 22 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
23
E.g., Ark. Att’y Gen. Op. 1996-168.
24
E.g., Ark. Att’y Gen. Ops. 2026-020 (opining that a termination letter is an employee evaluation “when it sets forth the grounds for the … termination”), 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against [an employee], regardless of when the document was created, qualifies as a ‘job performance record’”), 1998-075 (analyzing a list containing disciplinary action taken against law enforcement officers). 25 E.g., Ark. Att’y Gen. Ops. 2025-063 (opining that “records in an internal affairs file that have been generated by or at the behest of the employer while investigating a complaint against an employee (evaluating the employee and detailing performance or lack of performance on the job) constitute employee-evaluation or job-performance records”), 2020-028 (opining that “records in an internal investigation file that have been generated at the behest of an employer in the course of investigating alleged employee misconduct constitute ‘employee evaluation/job performance records’”), 2010-055 (opining that employee evaluations include “internal investigation records that have been generated at the behest of the employee’s supervisor in the course of investigating the employee’s conduct”). 26 Ark. Att’y Gen. Ops. 2024-095, 2024-021, 2023-071, 2023-013, 2014-129, 2006-026.
Officer Son Le
Mr. Ben Hooper, Cabot City Attorney
Opinion No. 2026-025
Page 6

noted that some employee-related records are “mixed records,” which means they constitute (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. 27 This situation commonly arises when a record includes statements from several employees, some of whom are being evaluated and some of whom are merely witnesses. Because some of these records are mixed records, the custodian should review them to determine whether the other officers’ names are subject to release under the tests described above or whether they should be redacted.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

27
E.g., Ark. Att’y Gen. Op. 2015-057.