Can an Arkansas agency release a police officer's disciplinary suspension record under FOIA?

Plain-English summary

A community-correction officer with the Arkansas Department of Corrections, who had been suspended, asked the Attorney General to review the custodian's decision to release his "Disciplinary Action" file in response to a FOIA request. The officer objected. Attorney General Tim Griffin concluded the custodian got it right: the form is an employee-evaluation record, and the strict test for releasing that kind of record was satisfied, so releasing the redacted record is consistent with the Arkansas Freedom of Information Act.

Under the FOIA, records in a public employee's file usually fall into two buckets with very different disclosure rules. "Employee-evaluation or job-performance records" (records the employer created to evaluate the employee) can only be released when a four-part test is met: the employee was suspended or terminated; that discipline is administratively final; the record formed a basis for the discipline; and there is a compelling public interest in disclosure. The AG found all four met here. The suspension was final because it happened more than two years earlier, the record laid out the grounds for the suspension, and because law enforcement officers carry a significant public trust, there is usually a compelling public interest in records showing violations of office policy. The custodian's redactions (the officer's personnel number and apparently the identities of private citizens) were either consistent with the FOIA or outside what the AG was asked to review.

What this means for you

Law enforcement officers and other public employees who are the subject of records

Based on this opinion, once your suspension or termination is administratively final and the record that documents it is requested, that record can be released if there is a compelling public interest, and the AG treats the public interest in police disciplinary records as usually compelling. Your personnel number and unrelated private-citizen identities may still be redacted.

Records custodians

The opinion illustrates the sequence a custodian should follow: first classify the record (personnel vs. employee-evaluation), then apply the correct test. For an evaluation record it treated the four-part test (discipline, finality, relevance, compelling interest) as the controlling standard, and treated a suspension notice that states its grounds as an evaluation record.

FOIA requesters and journalists

For a disciplinary record of a law-enforcement officer that led to a final suspension, this opinion supports release once the discipline is final, subject to redaction of narrow identifiers. The "compelling public interest" prong is where the analysis turns, and the AG weighed the officer's public-trust role heavily.

Common questions

Q: What is the difference between a "personnel record" and an "employee-evaluation record"? A: A personnel record is one that pertains to an employee but was not created to evaluate them; it is open unless disclosure would be a "clearly unwarranted invasion of personal privacy." An employee-evaluation or job-performance record is one the employer created to evaluate the employee and that details their performance; it is closed unless the four-part test is met.

Q: What is the four-part test for releasing an evaluation record? A: The employee must have been suspended or terminated; the discipline must be administratively final; the record must have formed a basis for the discipline; and there must be a compelling public interest in disclosure. All four must be satisfied.

Q: Why did the officer's law-enforcement role matter?
A: The AG has long concluded 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. That is what tipped the "compelling public interest" prong toward disclosure here.

Q: Can the agency still redact anything before releasing the record? A: Yes. The custodian redacted the officer's personnel number, which the AG said is consistent with the FOIA, and apparently redacted the identities of private citizens. The AG did not rule on those additional redactions because the officer had not objected to them and his review authority is limited to the custodian's personnel and evaluation-record decisions.

Background and statutory framework

Arkansas's FOIA lets the subject, requester, or custodian of certain employee-related records ask the Attorney General whether a custodian's release decision is consistent with the law (A.C.A. § 25-19-105(c)(3)(B)(i)). Records held by a public entity are presumed public (A.C.A. § 25-19-103(15)(A); Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)), and the general disclosure test comes from Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511.

The two-track framework for employee files (personnel records under A.C.A. § 25-19-105(b)(12) versus employee-evaluation or job-performance records under A.C.A. § 25-19-105(c)(1)) and the definition of evaluation records were shaped by the Attorney General's office and approved by the courts (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). The purpose of the evaluation-record exception is to protect the confidentiality of the formal job-evaluation process so employees and employers can be candid.

Citations and references

Statutes:

• A.C.A. § 25-19-105(c)(3)(B)(i) (subject/requester/custodian may seek an AG opinion)
• A.C.A. § 25-19-105(c)(1) (employee-evaluation/job-performance records; four-part test)
• A.C.A. § 25-19-105(b)(12) (personnel records; unwarranted-privacy-invasion exemption)
• A.C.A. § 25-19-105(b)(11) (redaction of certain identifying information)
• A.C.A. § 25-19-103(15)(A) (definition of public record)

Cases:

• Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511, general FOIA disclosure test
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), rebuttable public-record presumption
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of evaluation records
• Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466, court approval of the evaluation-record test

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. 2026-045
May 18, 2026
Agent Brandon Henry
Community Supervision Officer III
Division of Community Correction
Arkansas Department of Corrections
Dear Agent Henry:
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 record, 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 the records custodian, the Arkansas Department of Corrections received a FOIA request for your “Disciplinary File” and for “[e]mployee evaluation records and/or job performance records forming the basis of [your] suspension.” The custodian has provided me with a redacted copy of a three-page record titled “Disciplinary Action.” The custodian has classified this record as an employee-evaluation record, and she intends to release it with redactions. You object to the release of the record, and you ask if the custodian’s decisions are consistent with the FOIA. RESPONSE In my opinion, the custodian has correctly classified the disciplinary action form as an employee-evaluation record. And because the four-part test for release of employee-evaluation records appears to be met, the custodian’s decision to release the record is also consistent with the FOIA.

Agent Brandon Henry
Opinion No. 2026-045
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 Arkansas Department of Corrections—a public entity subject to the FOIA. And the record at issue appears to be a public record.2 Because the record is held by a public entity, it is presumed to be a public record,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 document’s 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.

Agent Brandon Henry
Opinion No. 2026-045
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 “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. Because the record at issue here is an employee evaluation, I will restrict my analysis to that category of records.

2. Employee-evaluation records. The exception for “employee evaluation or job performance
   records” 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:
3. The employee was suspended or terminated (i.e., level of discipline);
4. There has been a final administrative resolution of the suspension or termination
   proceeding (i.e., finality);
5. The records in question formed a basis for the decision made in that proceeding to
   suspend or terminate the employee (i.e., relevance); and
6. 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 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).

Agent Brandon Henry
Opinion No. 2026-045
Page 4
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,12 which is always a question of fact that must be determined, in the first instance, by the custodian after considering 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. In my opinion, the custodian has correctly classified the record as an employeeevaluation record. The record, titled “Disciplinary Action,” was created by the employer to
   evaluate you, and it details your performance or lack of performance on the job. Further, the record notifies you of a suspension. This Office has consistently opined that a suspension notice qualifies as an evaluation record when it states the grounds for the suspension.15 Because the record recounts the specific reasons for your suspension, it qualifies as an employee-evaluation record. As an employee evaluation, the record cannot be released unless each element of the four-part test described above is satisfied. Based on the information provided, it is my opinion that the first and second prongs of the test have been met: you were suspended, and the suspension is final because it occurred more than two years ago. The third prong is also met because the record details the grounds for your suspension. As to the final prong, this Office has long concluded that law enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as this one, that reflect violations of office policy.16 Accordingly, the custodian’s decision to release this record is consistent with the FOIA.17 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 E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension is an “employee evaluation/job performance record” when the letter details “the incidents that gave rise to the discipline”), 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies as a ‘job performance record”’), 1998-075 (analyzing a list containing law-enforcement officer disciplinary action). 16 Ark. Att’y Gen. Ops. 2026-029, 2023-050, 2014-129. 17 As noted above, the custodian has redacted certain information from the record. One redaction removes your personnel number, which is consistent with the FOIA. See A.C.A. § 25-19-105(b)(11); Ark. Att’y Gen. Ops. 2022- 032, 2014-094, 2007-070. Although I do not know the precise content of the remaining redactions, they appear to relate to the identities of private citizens involved in the incident described in the form. I do not address the custodian’s decision to redact this additional information because 1) you have not objected to these redactions; 2) the exact information redacted is unclear; and 3) my authority under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to reviewing a custodian’s decisions concerning personnel records and employee-evaluation or job-performance records. See Ark. Att’y Gen. Op. 2024-077.

Agent Brandon Henry
Opinion No. 2026-045
Page 5
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General