Can a city withhold a fired employee's termination letter and investigative file under Arkansas FOIA?

Plain-English summary

Russ Racop asked the City of Little Rock for a fired employee's termination letter and investigative file. The custodian classified those as employee-evaluation records and refused to release them because the employee's termination was not yet administratively final. Racop asked the Attorney General whether that refusal was consistent with the Arkansas Freedom of Information Act, and Attorney General Tim Griffin gave a conditional answer.

Because he had not seen the records, the AG could not personally confirm that they really were employee-evaluation records, and he lacked the facts to say whether the termination had become final. But he laid out the governing rule: employee-evaluation or job-performance records stay closed unless a four-part test is met, and one part is that the discipline must be administratively final. If the records are in fact evaluation records and the termination is not yet final, then that test cannot be satisfied and the custodian must withhold them. On that assumption, the withholding is consistent with the FOIA. In other words, the timing of the termination appeal is doing the work here: the same records could become releasable later, once the firing is final and the remaining parts of the test (relevance and a compelling public interest) are also met.

What this means for you

FOIA requesters and journalists

Based on this opinion, a pending or unresolved termination appeal is a legitimate reason to withhold evaluation records, at least until the discipline becomes final. If the records you want relate to a firing that is still being appealed, expect them to stay closed for now; the same request may succeed after the proceeding concludes.

Records custodians

The opinion supports withholding evaluation records while a termination is not administratively final, because the four-part test cannot be met without finality. It also shows the limits of an AG opinion: when the custodian does not provide the records for review, the AG can only describe the rule and apply it conditionally, not verify the classification.

Public employees who are the subject of records

For an employee whose termination is being appealed, this opinion treats the records documenting that discipline as protected until the appeal is resolved, after which the compelling-public-interest analysis would decide whether they open up.

Common questions

Q: Why couldn't the Attorney General give a definite yes or no?
A: He had not been given the records to review, so he could not confirm the custodian's classification, and he did not have enough information to decide whether the termination was administratively final. He could only state the rule and apply it conditionally.

Q: What makes a termination "administratively final"?
A: Finality generally means the internal or administrative process for challenging the discipline has run its course. Until that point, an evaluation record cannot satisfy the four-part release test, so it stays closed.

Q: Could these same records be released later?
A: Potentially. If the records are evaluation records, they may become releasable once the termination is final and the remaining parts of the test (that the record formed a basis for the discipline and that there is a compelling public interest) are met.

Q: What if the records were actually personnel records instead of evaluation records?
A: Then a different test would apply: personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." The AG could not classify the records here because he had not seen them.

Background and statutory framework

Arkansas's FOIA lets the subject, requester, or custodian of certain employee-related records ask the Attorney General to review a custodian's release decision (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.

Employee files split into personnel records (A.C.A. § 25-19-105(b)(12)) and employee-evaluation or job-performance records (A.C.A. § 25-19-105(c)(1)), each with its own test. The evaluation-record definition and its four-part release test have been recognized 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). Administrative finality of the underlying discipline is the element that controlled this opinion.

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. § 25-19-103(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. 2026-050
May 27, 2026
Mr. Russ Racop
Via email only: [email protected]
Dear Mr. Racop:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information
Act (FOIA). Your request, which is made as the requester 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.
You submitted a FOIA request to the City of Little Rock for copies of “the termination letter and
investigative file of [an employee].” The custodian has classified these records as
employee-evaluation records and intends to withhold them because the employee’s termination is
not yet administratively final. You ask if the custodian’s decisions are consistent with the FOIA.
RESPONSE
Because I have not reviewed the records at issue, I cannot definitively state whether the custodian
has correctly classified them as employee-evaluation records. Additionally, I do not have sufficient
information to determine whether the employee’s termination has reached administrative finality.
However, if the records are employee-evaluation records and the termination is not yet
administratively final, then the custodian’s decision to withhold the records is 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.

Mr. Russ Racop
Opinion No. 2026-050
Page 2
The first two elements appear to be met. The request was made to the City of Little Rock—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 “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 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. Russ Racop
Opinion No. 2026-050
Page 3
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
contact information of certain public employees from disclosure, including their personal
telephone numbers, personal email addresses, and home addresses.17
3. Employee-evaluation records. 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);
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 11, at 207.
16 A.C.A. § 25-19-105(f).
17 See id. § 25-19-105(b)(13).

Mr. Russ Racop
Opinion No. 2026-050
Page 4
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).18
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.19
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,20 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.21 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.22
4. Application. This Office has consistently opined that a termination letter may qualify as either
a personnel record or an evaluation record, depending on its contents. When a termination letter
18 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
19 Watkins et al., supra note 111, at 238–39.
20 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”).
21 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
22 E.g., Ark. Att’y Gen. Op. 1996-168.

Mr. Russ Racop
Opinion No. 2026-050
Page 5
contains no explanation of the grounds for disciplinary action, it constitutes a personnel record.23
But when it states the grounds for the termination, it qualifies as an evaluation record.
24 Similarly,
this Office has long concluded that records in an investigative file that were generated by or at the
behest of the employer during an investigation of an employee constitute evaluation records.
25
Because the records have not been provided to me, I cannot definitively determine whether the
custodian has properly classified the termination letter and investigative file as
employee-evaluation records. However, if they are properly classified as such, the next question
is whether they may be released under the FOIA’s four-part test for evaluation records. As
explained above, such records may only be released if all four elements are satisfied:
(1) suspension or termination; (2) administrative finality; (3) relevance of the records to the
decision; and (4) a compelling public interest in disclosure.
Whether a termination has reached administrative finality is a question of fact for the custodian.
The Arkansas Court of Appeals recently “explained that a final administrative resolution occurs
when the disciplinary decision has been made and the employing entity’s internal administrative
process has been completed.”26 Consistent with this principle, this Office has often indicated that
if the employee has administrative remedies available, the termination is not administratively
final.
27
In summary, I lack sufficient information to determine whether the responsive records are properly
classified as employee-evaluation records or whether the employee’s termination has reached
administrative finality. However, if the records are employee-evaluation records and the
23 E.g., Ark. Att’y Gen. Ops. 2023-077, 2023-069, 2015-053.
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 Pulaski Cnty. Special Sch. Dist. v. Racop, 2026 Ark. App. 220, 4.
27 E.g., Ark. Att’y Gen. Ops. 2006-171 (opining that if the employee still has time to appeal her termination, then the
termination is not administratively final), 2002-158 (opining that if an employee appeals his termination, the
employee’s termination records cannot be disclosed until an administrative decision that upholds the termination). See
also Watkins et al., supra note 111, at 232 (“Records remain exempt if the employee has administrative remedies
available or if a decision to … terminate him or her has been overturned”).

Mr. Russ Racop
Opinion No. 2026-050
Page 6
termination is not yet administratively final, the custodian’s decision to withhold the records is
consistent with the FOIA.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General