Can a state agency release an employee's termination letter to a FOIA requester if the letter explains the reasons for firing?

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Plain-English summary

Tammy Ortega, a Department of Veterans Affairs employee, asked the Attorney General to review whether releasing her termination letter in response to a FOIA request was consistent with the FOIA, after the custodian said she intended to release it but hadn't explained how she'd classified the letter or why she believed release was required.

The Attorney General reviewed the letter directly and found it release-appropriate. Because the letter recounted the actual reasons for the termination rather than just stating the bare fact that Ortega had been terminated, it qualified as an "employee evaluation or job performance record," a more protected category than an ordinary personnel record, subject to a four-part test: discipline (suspension or termination) occurred, the disciplinary proceeding reached final resolution, the record formed the basis for that decision, and there's a compelling public interest in disclosure. The opinion found the first three elements clearly satisfied, and concluded, given the nature of the underlying infraction, that a compelling public interest in disclosure existed as well, making the letter's release consistent with the FOIA.

Background and analysis (as of 2013)

The opinion distinguished between two categories of personnel-adjacent records under Arkansas's FOIA: a bare termination letter stating only the fact of termination is an ordinary "personnel record," subject to the general clearly-unwarranted-invasion-of-privacy exemption; a termination letter that recounts the reasons for the termination, by contrast, is an "employee evaluation or job performance record" subject to a stricter, four-part disclosure test. Because Ortega's letter fell into the second category, the opinion applied that stricter test directly: an established Attorney General opinion history treats a termination letter written contemporaneously with the termination as itself "forming a basis" for the decision, satisfying that element, and the opinion found the remaining suspension/termination and finality elements plainly met on the facts presented. That left only the "compelling public interest" element, which the opinion resolved in favor of disclosure based on the nature of the underlying infraction described in the letter.

Citations and references

Statutes (as they stood in 2013):

• A.C.A. § 25-19-105(c)(3)(B)(i), authorizing a custodian, requester, or record subject to seek an Attorney General opinion on a disclosure decision
• A.C.A. § 25-19-105(b)(12), the general personnel-records privacy exemption, applicable to bare termination letters lacking explanatory detail
• A.C.A. § 25-19-105(c)(1), the four-part test for disclosing employee evaluation or job performance records

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2013-155

December 20, 2013

Tammy Ortega

c/o Kelly Ferguson, ADVA Public Affairs Officer
Department of Veterans Affairs

2200 Fort Roots Drive, Bldg. 65, Rm 119

North Little Rock, Arkansas 72114-1756

Dear Ms. Ortega:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp.
2013). This subsection authorizes the custodian, requester, or the subject of
personnel or employee-evaluation records to seek an opinion from this office
stating whether the custodian's decision regarding the release of such records is
consistent with the FOIA.

Your correspondence indicates that someone has submitted an FOIA request for
your termination letter. While the custodian intends to release it, she has failed to
explain whether she has classified the letter as a personnel record or as an
employee-evaluation record. Nor has the custodian explained why she thinks the
FOIA requires the letter to be released.

You ask for my opinion on whether the letter's disclosure is consistent with the
FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the attached letter of termination, I have determined
(1) that the letter's contents make it an employee-evaluation record; and (2) that
the letter's release is consistent with the FOIA.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

Tammy Ortega
Opinion 2013-155
Page 2

DISCUSSION

A document must be disclosed in response to a FOIA request if all three of the
following elements are met. First, the FOIA request must be directed to an entity
subject to the act. Second, the requested document must constitute a public record.
Third, no exceptions allow the document to be withheld. Because the first two
elements are clearly met in this case, I will confine my analysis to the third
element.

This office has opined that letters of termination constitute employee-evaluation
records if they contain the reasons for the suspension or termination.1 If, however,
the letter merely reflects the fact of termination, without elaboration, this office
has opined that the letter is properly classified as a "personnel record" under
A.C.A. § 25-19-105(b)(12) and is subject to release under the separate test
discussed in an earlier opinion.2 Because your termination letter recounts the
reasons for the termination, the letter qualifies as an employee-evaluation record.

Accordingly, it can only be released if the following four-part test for the
disclosure of employee-evaluation records has 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., basis); and

4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).3

1 E.g., Op. Att'y Gen. 2001-276 (and opinions cited therein).
2 E.g., Op. Att'y Gen. 2006-147

3 A.C.A. § 25-19-105(c)(1) (Supp. 2013); Op. Att'y Gen. 2008-065.

Tammy Ortega
Opinion 2013-155
Page 3

The first three elements have clearly been met.4 Thus, the only question regarding
the release of this termination letter is whether there is a "compelling public
interest" in its disclosure. Given the nature of the infraction, I believe there is a
compelling public interest in the letter's disclosure. Therefore, in my opinion, the
custodian's decision is consistent with the FOIA.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby
approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/RO:cyh

4 With regard to the "formed a basis" prong, a termination letter, although written contemporaneously
with the termination, has been classified as forming a basis for the termination. See Op. Att'y Gen. 2006-
026 and 2005-030, fn. 3.