Does an Arkansas sheriff's deputy's forced resignation count as a 'termination' for FOIA disclosure of misconduct records?

Subject

Whether the Garland County Sheriff's Office may release a former employee's written statement and Employee Corrective Action records following a resignation the custodian described as forced.

Plain-English summary

A requester sought a former sheriff's office employee's termination records. The custodian classified a written statement on sheriff's office letterhead and a set of Employee Corrective Action records as employee evaluations and proposed releasing them. The AG agreed with that classification: both sets were created during an investigation of alleged misconduct and detailed incidents giving rise to the allegations.

FOIA permits release of evaluation records only if the employee was suspended or terminated, the proceeding has a final administrative resolution, the records formed a basis for the decision, and the public has a compelling interest in disclosure. A resignation forced in the face of certain, impending termination counts as a constructive termination for the first condition. Whether a resignation was in fact forced is a factual determination for the custodian, subject to judicial review.

The AG relied on the custodian's representation that this resignation was forced. He found the constructive termination final and the investigation the basis for it. He also found a compelling public interest in these records, explaining that law enforcement officers have significant public trust and that records like these reflecting violations of office policy usually carry a compelling public interest. He concluded that releasing the two sets of records was consistent with FOIA.

What this means for you

Records custodians

For a resignation, the first evaluation-record release condition depends on whether the employee resigned in the face of certain, impending termination. The custodian makes that factual determination. In this case, the AG accepted the custodian's account of a forced resignation and found all four conditions satisfied for the records reviewed.

Former employees and FOIA requesters

The AG's approval concerns these two sets of investigation records and the facts supplied by this custodian. Resignation alone does not establish a constructive termination. The decision whether it was forced is factual and subject to judicial review. The opinion does not address redactions or other employees' records.

Common questions

Q: When can a resignation count as a termination under Arkansas FOIA? A: When an employee resigns in the face of certain, impending termination, the resignation is a constructive termination and satisfies the first condition for release of evaluation records.

Q: Who decides whether the resignation was forced?
A: The custodian makes that factual determination in the first instance, subject to judicial review. Here the AG relied on the custodian's representation that the resignation was forced.

Q: Why were these records releasable?
A: The AG found constructive termination, finality, a connection between the investigation and the termination decision, and a compelling public interest in these law-enforcement records. All four conditions were met for the two sets of records reviewed.

Background and statutory framework

The opinion distinguishes personnel records under A.C.A. § 25-19-105(b)(12) from employee-evaluation records under § 25-19-105(c)(1). The latter are records created by or at the behest of the employer to evaluate the employee and detail job performance. The AG classified both sets here as evaluation records and applied only that category's four-part release test. He explained that the compelling-interest determination is fact specific and is made by the custodian after considering the relevant information.

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(c)(1) (employee-evaluation four-part test); § 25-19-105(c)(3)(B)(i) (AG opinion request authority).
• 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).
• 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.
• Prior AG opinions on constructive termination: Op. 2023-050, 2014-103, 2007-061.
• Prior AG opinions on law enforcement compelling public interest: Op. 2024-095, 2024-021, 2023-071, 2023-013, 2014-129, 2006-026.

Source

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

Original opinion text

Opinion No. 2026-029

March 20, 2026

Mr. John Howard
Garland County Attorney
501 Ouachita Avenue
Hot Springs National Park, Arkansas 71901

Dear Mr. Howard:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the attorney for 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 correspondence we received from you, the Garland County Sheriff’s Office received a FOIA request for a former employee’s termination records. You have provided me with unredacted copies of two sets of records. The custodian has classified these records as employee evaluations and intends to release them to the requester. You ask if the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian has correctly classified both sets of records as employee evaluations. And because the four-part test for release of employee-evaluation records is met, the custodian’s decision to release the records is also consistent with the FOIA.

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

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Mr. John Howard
Garland County Attorney
Opinion No. 2026-029
Page 2

The first two elements appear to be met. The request was made to the Garland County Sheriff’s Office—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

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
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. Mr. John Howard Garland County Attorney Opinion No. 2026-029 Page 3

Because the records at issue here are employee evaluations, I will restrict my analysis to that category of records.

2. Employee-evaluation records. This exception includes records “generated while investigating
   allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 9

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). 10

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. 11

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”

9
E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
10
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
11
John J. Watkins et al., The Arkansas Freedom of Information Act 238–39 (6th ed. 2017).
Mr. John Howard
Garland County Attorney
Opinion No. 2026-029
Page 4

exists, 12 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. 13 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. 14

3. Application. The first document appears to be a written statement by the former employee on
   the sheriff’s office letterhead. This document was created as part of an investigation into allegations of employee misconduct, and it details incidents that gave rise to an allegation of misconduct. The second set of records begins with a document labeled “Employee Corrective Action.” These records were also created as part of an investigation into allegations of employee misconduct, and they detail incidents that gave rise to an allegation of misconduct. Thus, both sets of records are employee evaluations.

As employee evaluations, these records cannot be disclosed unless each element of the foregoing four-part test is met. Based on the facts you have provided, it is my opinion that the first prong of the test has been met. When the former employee resigned his position, that resignation was not voluntary. For purposes of the FOIA, a “forced or coerced” resignation occurs when an employee resigns “in the face of certain, impending termination.” 15 A forced resignation operates as a constructive termination that satisfies the level-of-discipline element. 16 Whether the resignation was, in fact, forced is a highly factual determination that can only be made by the custodian, subject to judicial review. 17 Based on the custodian’s representation that the resignation was forced, I conclude that the first prong is met.

The remaining prongs are also met. The constructive termination is final, and the investigation into allegations of employee misconduct formed the basis for the constructive termination. The final prong is also met 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 violations of office policy. 18 Accordingly, the custodian’s decision to release these records is consistent with the FOIA.

12
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”). 13 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
14
E.g., Ark. Att’y Gen. Op. 1996-168.
15
Ark. Att’y Gen. Ops. 2023-050, 2014-103.
16
Ark. Att’y Gen. Ops. 2023-050, 2014-103.
17
Ark. Att’y Gen. Ops. 2023-050, 2014-103, 2007-061.
18
Ark. Att’y Gen. Ops. 2023-050, 2023-013, 2014-129.
Mr. John Howard
Garland County Attorney
Opinion No. 2026-029
Page 5

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

Sincerely,

TIM GRIFFIN
Attorney General