When an Arkansas custodian releases a law enforcement officer's termination letter under FOIA, can the custodian redact the terminated employee's name?

Plain-English summary

Washington County Attorney George Butler, acting on behalf of the county's records custodian, asked AG Dustin McDaniel for a FOIA opinion under A.C.A. § 25-19-105(c)(3)(B)(i). A requester had asked for "termination records of all employees terminated from April 1, 2014 through the present." The custodian had one law enforcement officer's termination letter that fell within the request. The custodian wanted to release the letter but proposed to redact the terminated officer's name and address. The letter also referenced a second person whom the custodian did not plan to shield.

The AG split the answer into three pieces:

Classifying the record as an employee evaluation record: Correct. A termination letter that recounts the reasons for termination is an "employee evaluation or job performance record" under A.C.A. § 25-19-105(c)(1). If the letter were just a notice of termination without elaboration, it would be a "personnel record" under § 25-19-105(b)(12), which uses a different test.

Applying the four-part test for release of an employee evaluation record: Correct. The test asks (1) was the employee suspended or terminated? (2) was there a final administrative resolution? (3) did the records form a basis for the decision? and (4) does the public have a compelling interest in disclosure? Three of the four elements were uncontested. On the compelling interest factor, the AG drew from Watkins & Peltz's leading commentary: nature of the infraction (here, a public-trust violation in law enforcement), public controversy, and the employee's position. The first and third factors clearly weighed in favor of disclosure even though the second was absent. The AG specifically noted that "the public has a great interest in the [job] performance of police officers and other law enforcement officials, and in this case the 'cop on the beat' is just as important as the chief of police."

Redacting the subject's name: Inconsistent with FOIA. The exception for employee evaluation records has no provision for redacting names. The AG quoted his earlier Op. 2009-026: "the identity of the individual would seem central to the determination of whether a compelling public interest exists. Accordingly, redacting the name of the subject of the record would seemingly largely negate the public's interest." If the test for release is met, the document goes out in full.

Identity of the other person referenced in the letter: Likely needs redaction on constitutional grounds. Under McCambridge v. City of Little Rock, 298 Ark. 219 (1989), the constitutional right of privacy can override FOIA disclosure when the information (1) the individual wants to keep confidential, (2) can be kept confidential but for the disclosure, and (3) would be harmful or embarrassing to a reasonable person. The third-party identity in the termination letter likely met that test. The custodian was the initial finder of fact on this and should consider redacting the third party's name even though FOIA itself would not require it.

Currency note

This opinion was issued in 2014. 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.

Common questions

Under Arkansas FOIA, can a records custodian redact the name of an employee whose termination letter is being released?
At the time of this opinion, no. The Arkansas FOIA's exception for employee evaluation records has no name-redaction mechanism. If the four-part test for release is met, the record goes out in full. Redacting the name would defeat the public-interest rationale for releasing the record at all.

What's the four-part test for releasing an employee evaluation record under Arkansas FOIA?
(1) The employee was suspended or terminated. (2) There was a final administrative resolution of the disciplinary proceeding. (3) The records in question formed a basis for the disciplinary decision. (4) The public has a compelling interest in their disclosure. All four must be met. A.C.A. § 25-19-105(c)(1).

What does "compelling public interest" mean in this context?
The Arkansas FOIA doesn't define it. Watkins & Peltz's leading commentary suggests three factors: nature of the infraction (especially public-trust violations or gross incompetence), public controversy related to the agency, and the employee's position. The AG has used those factors in many opinions. A "general interest in the performance of public employees" is not enough; you need a specific connection between the misconduct, the agency, and the public.

Does the "public has a high interest in police officers" rule mean all police misconduct records are releasable?
Not automatically. The records still have to meet the four-part test. But for the compelling-interest factor, even rank-and-file officers (not just the chief) can satisfy the test when their misconduct undermines the public trust.

What if a third party is named in the termination letter?
Under McCambridge v. City of Little Rock, the third party may have a constitutional right of privacy that overrides FOIA's disclosure requirements. The custodian needs to weigh whether (1) the third party wants the information kept confidential, (2) it can be kept confidential, and (3) disclosure would be harmful or embarrassing to a reasonable person. If yes, the custodian can redact the third party's identity even though FOIA itself wouldn't require it.

What's the difference between a "personnel record" and an "employee evaluation record" under Arkansas FOIA?
A "personnel record" (A.C.A. § 25-19-105(b)(12)) covers documents like employment applications, payroll documents, transcripts, and notices that don't evaluate performance. They are released unless disclosure would be a "clearly unwarranted invasion of personal privacy." An "employee evaluation or job performance record" (A.C.A. § 25-19-105(c)(1)) covers documents created to evaluate the employee, like performance reviews, internal investigation records, and termination letters that state the reasons for termination. These have the four-part test for release.

Background and statutory framework

The Arkansas Freedom of Information Act, codified at A.C.A. §§ 25-19-101 et seq., includes two related but distinct exceptions for employee files:

• A.C.A. § 25-19-105(b)(12): "Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Default rule is release with limited privacy carve-outs.
• A.C.A. § 25-19-105(c)(1): Employee evaluation or job performance records are released only on a final administrative resolution where the record formed the basis for suspension or termination and the public has a compelling interest in disclosure.

The four-part test for releasing evaluation records reflects a legislative judgment that the formal evaluation process needs more protection than ordinary personnel paperwork. AG opinions repeatedly stress this purpose: protecting "the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship" (Op. 96-168).

The 2014 opinion identifies Thomas v. Hall, 2012 Ark. 66, as the Arkansas Supreme Court's authoritative formulation of the evaluation-record definition: 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 Watkins & Peltz treatise (5th ed., 2009) is the leading commentary on Arkansas FOIA. The AG quotes pp. 217-18 for the three-factor compelling-interest analysis. The treatise also discusses the special context of law enforcement at pp. 216-17, including the "cop on the beat" point.

The constitutional privacy doctrine comes from McCambridge v. City of Little Rock, 298 Ark. 219 (1989). The McCambridge test asks whether the information (1) the individual wants to keep confidential, (2) can be kept confidential but for the government action, and (3) would be harmful or embarrassing to a reasonable person if disclosed. The Arkansas Supreme Court has held this constitutional privacy can supersede the specific disclosure requirements of FOIA.

The procedural mechanism for getting an AG FOIA opinion is A.C.A. § 25-19-105(c)(3)(B)(i): the custodian, requester, or the subject of personnel or employee-evaluation records can ask the AG to state whether the custodian's decision is consistent with FOIA. The opinion is advisory; it does not bind the custodian.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (procedural mechanism for AG FOIA opinion)
• A.C.A. § 25-19-105(c)(1) (Supp. 2013) (four-part test for evaluation records)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989) (constitutional privacy can override FOIA)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Ark. Law Press, 5th ed. 2009), pp. 216-18 (compelling-interest factors and law enforcement)
• Op. Att'y Gen. 2001-276 (termination letter with reasons is an evaluation record)
• Op. Att'y Gen. 2006-026, 2005-030 (termination letter forms a basis for termination)
• Op. Att'y Gen. 2006-147 (bare-fact termination notice is a personnel record)
• Op. Att'y Gen. 2005-233 (no name-redaction provision in evaluation-record exception)
• Op. Att'y Gen. 2009-026 (redaction would negate public interest)
• Op. Att'y Gen. 2007-001, 2006-141, 2001-122 (custodian must apply McCambridge balancing)

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. 2014-052
May 21, 2014
Mr. George E. Butler, Jr.
Washington County Attorney
Washington County Courthouse
280 North College, Suite 501
Fayetteville, Arkansas 72701

Dear Mr. Butler:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian's attorney, 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.

The record at issue is a letter of termination. You have provided a copy of the
letter with the subject's name redacted. You state that the custodian has
determined that this record is subject to disclosure under the FOIA's test for the
release of job evaluation records. I assume this means the custodian intends to
release the termination letter as redacted.

RESPONSE

As indicated above, my statutory duty under A.C.A. § 25-19-105 (c)(3)(B)(i) is to
state whether a custodian's decision regarding the disclosure of certain employee-
related records is consistent with the FOIA. In my opinion, the custodian's
decision in this instance is partly consistent with the FOIA. The decision to
classify this particular termination letter as an employee evaluation record is
consistent with the act. And I agree that the letter meets the test for release of such
a record. But in my opinion, the decision to redact the subject's name is
inconsistent with the FOIA. Additionally, I note that the custodian apparently
does not intend to shield the identity of the other person referenced in the letter.
But in my opinion, that information is in all likelihood protected on constitutional
grounds.

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 termination. Because the termination
letter in question recounts the reasons for the termination, the letter qualifies as an
employee-evaluation record, in my opinion.

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).

The first three elements have been met. Thus, the only question regarding the
release of this termination letter is whether there is a "compelling public interest"
in its disclosure. The FOIA does not define the key phrase "compelling public
interest," but two 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, for that concern is, at least theoretically, always present.
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 "the status of the employee" or "his rank
within the bureaucratic hierarchy" may be relevant in determining whether a
"compelling public interest" exists. But this conclusion is tempered in the
context of law enforcement: "the public has a great interest in the [job]
performance of police officers and other law enforcement officials, and in this
case the 'cop on the beat' is just as important as the chief of police."

Turning to the record at issue, it appears that of the three factors identified above,
the first and third are met. As for the second, you have noted that there is no
public controversy. But in my opinion, the first and third factors are sufficient
under the circumstances to conclude that the public has a compelling interest in
the termination letter. The letter reflects that this law enforcement officer's
termination occurred as a result of the violation of rules aimed at conduct which
manifestly could undermine the public trust. Based on the specific facts of the
incident giving rise to the termination letter, I conclude that there is a compelling
public interest in the letter's disclosure. Therefore, in my opinion, the custodian's
decision to release it is consistent with the FOIA.

In my opinion, however, the decision to redact the subject's name is inconsistent
with the FOIA. The exception for employee evaluation and job performance
records makes no provision for redacting individuals' names. Indeed, as I have
previously observed:

[T]o the contrary, the identity of the individual would seem central
to the determination of whether a compelling public interest exists.
Accordingly, redacting the name of the subject of the record would
seemingly largely negate the public's interest and frustrate the
purpose of the requirement to release qualified employee evaluations
and job performance records. Consequently, if the ... documents
meet the test for the disclosure of evaluation/job performance
records, then the records must likely be disclosed in their entirety
with no redactions.

It must also be noted, however, that the constitutional right to privacy can
conceivably be implicated with respect to evaluation and job performance
records. Specifically, parties who may be identified from such employee-related
records can have a constitutionally-protected privacy interest in those records.
The Arkansas Supreme Court has recognized that the constitutional right of
privacy can supersede the specific disclosure requirements of the FOIA, at least
with regard to the release of documents containing constitutionally protectable
information. The McCambridge court held that a constitutional privacy-interest
applies to matters that: (1) an individual wants to and has kept confidential; (2) can
be kept confidential but for the challenged governmental action in disclosing the
information; and (3) would be harmful or embarrassing to a reasonable person if
disclosed. The question whether certain information is constitutionally protected
under the right to privacy is a highly factual decision the custodian of records must
initially make. If the custodian determines that the records contain constitutionally
protectable information (i.e., information that meets the McCambridge test), then
the custodian must consider whether the governmental interest in disclosure (i.e.,
the public's legitimate interest in the matter) outweighs the privacy interest in
withholding them. As always, the person claiming the right will have the burden
of establishing it.

While this is ultimately a factual determination for the custodian, I believe the
McCambridge test for protectable constitutional privacy is likely met in this
instance insofar as the identity of the other person referenced in the termination
letter is concerned. In my opinion, that person's identity is in all likelihood
protected on constitutional grounds and thus should probably be redacted prior to
the record's release.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion,
which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh