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

Subject

Garland County Sheriff's Office received a FOIA request for a former employee's termination records. The custodian classified two sets of records (a written statement by the former employee on sheriff's office letterhead, and an "Employee Corrective Action" set of records) as employee evaluations and intended to release them. The county attorney asked the AG. AG Griffin agreed: the four-part test for release of employee-evaluation records was met because the resignation was forced (a constructive termination), and the records detail misconduct by a law enforcement officer, where compelling public interest is presumed.

Plain-English summary

The recurring question across the FOIA opinions in this series is whether a particular set of records can be released under the four-part test for evaluation records: (1) suspension or termination, (2) finality, (3) relevance, (4) compelling public interest. Opinion 2026-025 saw a clean termination. Opinion 2026-026 saw an officer who was not disciplined, so the test failed at the first prong. This opinion adds the wrinkle of a forced resignation.

The Garland County Sheriff's Office had two sets of records about a former deputy: a written statement on sheriff's office letterhead, and an "Employee Corrective Action" packet. Both sets were generated as part of an investigation into allegations of employee misconduct and detailed the incidents giving rise to the allegations. So both qualify as employee-evaluation records under the standard Thomas v. Hall test (created by or at the behest of the employer, to evaluate the employee, detailing performance or lack of performance).

The wrinkle is that the deputy did not formally get terminated. He resigned. Under the AG's prior opinions, a "forced or coerced" resignation, where the employee resigns "in the face of certain, impending termination," is treated as a "constructive termination." That satisfies the level-of-discipline element of the four-part test.

Whether the resignation was actually forced is a fact question for the custodian, subject to judicial review. The custodian here represented that the resignation was forced, and the AG accepted that representation.

The remaining prongs follow:

• Finality. The constructive termination is final. The deputy is no longer with the sheriff's office.
• Relevance. The investigation into misconduct allegations formed the basis for the constructive termination.
• Compelling public interest. 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 office policy."

All four prongs met. Release is consistent with the FOIA.

What this means for you

If you are a deputy or police officer who resigned under pressure

If your resignation was, in the eyes of the records custodian, a "forced resignation in the face of certain, impending termination," your investigation file and any "Employee Corrective Action" records may be released to a FOIA requester. The legal effect of a forced resignation is the same as a termination for FOIA purposes. Whether your resignation qualifies as forced is a fact question, and you may have grounds to dispute the custodian's characterization in court.

If your resignation was genuinely voluntary, with no impending termination on the table, that is a different category. In that situation, the level-of-discipline prong of the four-part test would not be met, and your evaluation records would generally remain confidential.

If you are a sheriff, police chief, or county attorney

When a deputy or officer resigns during an investigation, document carefully whether the resignation was voluntary or forced. The "constructive termination" characterization triggers FOIA disclosure obligations. Three factors typically frame the analysis: was termination imminent, was the resignation submitted under explicit threat of termination, and did the employee have a meaningful choice. The records custodian's factual determination is reviewable, so document the basis for it.

For records of an officer constructively terminated, the four-part test will usually be met. Release the records with the standard mixed-records redactions for other officers, and the categorical redactions for personal contact info under § 25-19-105(b)(13).

If you are a FOIA requester or journalist

The deputy or officer's resignation does not automatically defeat your request. Ask the custodian whether the resignation was "forced or coerced in the face of impending termination." If yes, the four-part test for evaluation records is generally met for a law enforcement officer, and the records are releasable. If the custodian represents that the resignation was voluntary, ask for the basis. The factual determination is reviewable.

If you are a county attorney handling a sensitive resignation

The phrase "forced resignation" carries specific FOIA consequences. Before formalizing a deputy's resignation, think about whether that resignation will be characterized as forced (triggering eventual disclosure of the underlying records) or as voluntary (preserving confidentiality of evaluation records). The framing in the resignation paperwork matters. So does the contemporaneous record of what discipline was on the table.

Background and statutory framework

The Arkansas FOIA framework is laid out in Opinion 2026-025 and the other opinions in this series. Recap:

A document must be disclosed if (1) the request was directed to a public entity, (2) the document is a public record under § 25-19-103(15)(A), and (3) no exemption applies. Public records held by a public entity are presumed public, rebuttable per Pulaski Cnty. v. Ark. Democrat-Gazette (2007).

Records in a public employee's file are usually personnel records (under § 25-19-105(b)(12)) or employee-evaluation or job-performance records (under § 25-19-105(c)(1)). Evaluation records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance. Thomas v. Hall (2012); Davis v. Van Buren Sch. Dist. (2019).

The four-part test for release of evaluation records:

1. Level of discipline: suspension or termination.
2. Finality: final administrative resolution.
3. Relevance: records formed the basis for the decision.
4. Compelling public interest in disclosure.

For the compelling-public-interest prong, leading commentators identify three factors: nature of the infraction (with particular concern for violations of public trust or gross incompetence), public controversy related to the agency, and the employee's position in the agency. 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" (Op. 2024-095, 2024-021, 2023-071, 2023-013, 2014-129, 2006-026).

The constructive termination doctrine. A "forced or coerced" resignation, where an employee resigns "in the face of certain, impending termination," operates as a constructive termination that satisfies the level-of-discipline prong (Op. 2023-050, 2014-103). The factual question is for the custodian, subject to judicial review (Op. 2023-050, 2014-103, 2007-061).

Application here:

• The written statement on sheriff's office letterhead was created as part of an investigation into misconduct allegations, and it details incidents giving rise to the allegations. It is an evaluation record.
• The "Employee Corrective Action" set of records was also created as part of the misconduct investigation and details the incidents. It too is an evaluation record.
• The deputy's resignation, per the custodian's representation, was forced in the face of impending termination. That is a constructive termination, satisfying the level-of-discipline prong.
• The constructive termination is final.
• The investigation records formed the basis for the constructive termination.
• The deputy is a law enforcement officer, so compelling public interest is presumed for misconduct records.

Release is consistent with the FOIA.

Common questions

What is a "constructive termination" in Arkansas FOIA law?

A forced or coerced resignation, where the employee resigns in the face of certain, impending termination. The AG's office has treated this as equivalent to a termination for purposes of the four-part test for release of employee-evaluation records.

Who decides whether a resignation was forced?

The records custodian, in the first instance, makes a factual determination based on the surrounding circumstances. The determination is subject to judicial review.

What evidence supports a "forced" finding?

Typically: (1) the employer had decided to terminate the employee, (2) the employee was given the choice between resignation and termination, and (3) the resignation was submitted under that explicit choice. Contemporaneous documentation matters: the disciplinary record, communications about the impending termination, the timing of the resignation relative to disciplinary actions.

What if the employee voluntarily quit before any discipline?

Then the level-of-discipline prong is not met, and the evaluation records remain confidential. Voluntary departures, where the employee was not facing impending termination, do not trigger constructive termination.

Why is a sheriff's deputy treated the same as a city police officer?

Both are law enforcement officers vested with significant public trust. The AG's office has applied the compelling-public-interest presumption to all law enforcement officers, regardless of the specific employer.

Are the records of a deputy who resigned under investigation always releasable?

Not always. The four-part test must be met. If the resignation was genuinely voluntary, the level-of-discipline prong fails. If the resignation was forced, the test moves to finality, relevance, and compelling public interest, and the law enforcement officer presumption typically takes care of the fourth prong.

Does the AG's office independently review the custodian's "forced resignation" finding?

The AG accepts the custodian's factual representation but the determination remains a fact question for the custodian, subject to judicial review. If a court later disagrees with the custodian's "forced" finding, the FOIA release may have been improper.

What if the records also reference other deputies?

Standard mixed-records analysis applies. The custodian must run the personnel-record or evaluation-record test for each non-subject deputy mentioned and redact accordingly.

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

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

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. Because these records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. 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" 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. 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.

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.

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."

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, 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.

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.

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." A forced resignation operates as a constructive termination that satisfies the level-of-discipline element. Whether the resignation was, in fact, forced is a highly factual determination that can only be made by the custodian, subject to judicial review. 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. Accordingly, the custodian's decision to release these records is consistent with the FOIA.

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

Sincerely,
TIM GRIFFIN
Attorney General