Can a Fort Smith Police Department internal investigation file be released under FOIA when the officer resigned before the investigation finished, but the department says he was terminated?

Plain-English summary

Someone made a FOIA request to the Fort Smith Police Department for "[a]ll records related to the investigation" of Jarrod Taylor, a Department employee. Taylor objected to the planned release, saying the investigation was "incomplete due to [his] resignation." The Department's custodian apparently took a different view: that Taylor was terminated, and that release was therefore proper. Taylor asked the AG to settle the dispute.

AG Leslie Rutledge declined. The four-element test for releasing employee evaluation records under Ark. Code Ann. § 25-19-105(c)(1) starts with "the employee was suspended or terminated." If Taylor genuinely resigned, the first element fails and the records stay closed. If he was terminated, the first element is met and the rest of the four-element test gets applied. But which one happened is a question of fact, and AG opinions do not resolve factual disputes.

The AG laid out the legal standards but left the application to the custodian, with explicit guidance: "It is the responsibility of the custodian to properly classify the records and apply the appropriate test for their disclosure, taking into consideration all of the relevant facts and surrounding circumstances." If Taylor wanted the dispute resolved, he would need to take it to court.

Currency note

This opinion was issued in 2018. 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

Why does it matter whether Taylor resigned or was terminated?

Because the four-element test for releasing employee evaluation records starts with "the employee was suspended or terminated." A resigning employee never gets to that first element. So records of an investigation that ended by resignation rather than termination remain closed, even if the substantive record is the same.

Can an employee defeat FOIA by resigning?

Sometimes, yes. If an investigation is in progress and the employee resigns before any final administrative action, the resulting records are evaluation records that do not satisfy the four-element test (no termination, no final administrative resolution of a termination proceeding). They stay closed. This is sometimes called the "resignation loophole" and has been the subject of legislative reform discussions in Arkansas and elsewhere.

What if the resignation was forced?

A "resignation in lieu of termination" is a gray area. If the agency was actively moving to terminate and the employee resigned to avoid the termination on the record, courts have sometimes treated the resignation as functionally a termination. Whether the elements of "termination" under § 25-19-105(c)(1) are met depends on the actual administrative record, not the label the parties use.

Why won't the AG resolve the factual dispute?

Because AG opinions do not have fact-finding power. The opinion process under § 25-19-105(c)(3)(B)(i) gives the AG authority to opine on whether a custodian's classification and release decision are consistent with the FOIA. It does not give the AG authority to weigh evidence, make credibility determinations, or resolve disputes about underlying personnel actions. Those are court functions.

What should Taylor have done next?

Filed a court action to enjoin the release. Arkansas FOIA disputes go to circuit court. The court can hear evidence, determine whether Taylor resigned or was terminated as a factual matter, and apply the FOIA test based on its findings.

Background and statutory framework

The four-element test for releasing employee evaluation records under Ark. Code Ann. § 25-19-105(c)(1):

1. The employee was suspended or terminated.
2. There has been a final administrative resolution of the proceeding.
3. The record formed the basis for the discipline.
4. There is a compelling public interest in disclosure.

If element (1) fails (e.g., because the employee resigned, not terminated), the analysis stops and the record stays closed.

Thomas v. Hall defines what counts as an evaluation record (employer-created, evaluating the employee, detailing performance).

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion procedure)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Source

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

Original opinion text

Opinion No. 2018-039
April 12,2018
Jarrod Taylor
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Lieutenant Doug Brooks
Office of Professional Standards
Fort Smith Police Department
100 South 10th Street
Fort Smith, AR 72901
Dear Mr. Taylor:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i)
(Supp. 2017). 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.
According to the correspondence you have provided, someone has requested "[a]ll
records related to the investigation" of you by the City of Fort Smith Police
Department (the "Department"). You state that the investigation "was incomplete
due to [your] resignation." It appears the custodian has determined that you were
terminated; and the custodian apparently intends to release the records on that
basis. However, you state that you were not terminated, but that you "resigned
from the ... Department on [your] own terms .... "
I gather from the information provided that there is a dispute as to whether you in
fact resigned or were terminated. You ask whether the custodian's decision to
disclose the records in this instance is consistent with the FOIA.
323 CENTER SrnEET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 2
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. I lack sufficient facts to definitively determine whether the custodian's
decision to release the records is consistent with the FOIA. The issue of whether
you resigned your position or whether you were terminated by the Department is a
question of fact that I am unable to resolve in the scope of an Attorney General's
opinion. I will, however, lay out the general standards regarding employee-related
records and the appropriate tests governing their disclosure.
DISCUSSION
I. General standards governing disclosure.
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.
The first two elements appear to be met in this case. First, the request was made
to the Fort Smith Police Department, which is a public entity subject to the FOIA.
Second, the request appears to pertain to public records. 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 which constitute a record of the performance or lack of
performance of official functions ... carried out by a public official or employee
.... " 1 There is a rebuttable presumption that documents kept by an entity subject
to the FOIA are public records.2
Based on the information you have provided, the documents appear to have been
created or collected prior to or during an internal investigation. Accordingly, in
my opinion, the attached documents reflect the performance or lack of
performance of an official function during your employment with the Department.
Therefore, these documents are public records and must be disclosed unless some
specific exception provides otherwise.
1 Ark. Code Ann.§ 25-19-103(7)(A)(Supp. 2017).
2 See Op. Att'y Gen. 2010-044. Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 3
II. Exceptions to disclosure.
Under certain conditions, the FOIA exempts two groups of items normally found
in employees' personnel files.3 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records"4 or "employee
evaluation or job performance records."5 The test for whether these two types of
documents may be released differs significantly.
When custodians assess whether either of these exceptions applies to a particular
record, they must make two initial determinations. First, they must determine
whether the record meets the definition of either exception. Second, assuming the
record does meet one of the definitions, the custodian must apply the appropriate
test to determine whether the FOIA requires that record be disclosed.
a. Personnel-records exception.
The first of the two most relevant potential exceptions is the one for "personnel
records," which the FOIA does not define. But this office has consistently opined
that "personnel records" are all records other than employee-evaluation and job-
performance records that pertain to individual employees.6 Whether a particular
record meets this definition is, of course, a question of fact that can only be
3 This office and the leading commentators on the FOIA have observed that personnel files
usually include: employment applications; school transcripts; payroll-related documents such as
information about reclassifications, promotions, or demotions; transfer records; health and life
insurance forms; performance evaluations; recommendation letters; disciplinary-action records;
requests for leave-wit.hout-pay; certificates of advanced training or education; and legal
documents such as subpoenas. E.g. Op. Att'y Gen. 97-368; John J. Watkins, Richard J. Peltz-
Steele & Robe11 Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
4 Ark. Code Ann. § 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."
5 Ark. Code Ann. § 25-19-105( c )( 1 ): "Notwithstanding subdivision (b )(12) of this section, all
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."
6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 4
definitively determined by reviewing the record itself. If a document meets this
definition, then it is open to public inspection and copying except "to the extent
that disclosure would constitute a clearly unwarranted invasion of personal
privacy."7
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,8 has provided
some guidance. To determine whether the release of a personnel record would
constitute a "clearly unwarranted invasion of personal privacy," the Court applies
a balancing test that weighs the public's interest in accessing the records against
the individual's interest in keeping them private. The balancing takes place with
the scale tipped in favor of disclosure.9
The balancing test elaborated by Young v. Rice has two steps. 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 de minimis
privacy interest. 10 If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure.11 Because exceptions to the FOIA must be narrowly
construed, the person resisting disclosure bears the burden of showing that, under
the circumstances, his privacy interests outweigh the public's interests.12 The fact
that the subject of any such records may consider release of the records an
unwarranted invasion of personal privacy is irrelevant to the analysis because the
test is objective. 13
7 Ark. Code Ann. § 25-19-105(b )(12).
8 308 Ark. 593, 826 S.W.2d 252 (1992).
9 Watkins, et al., at 208.
10 Young, 308 Ark. at 598, 826 S.W.2d at 255.
II Id.
12 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 5
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact.14
Even if a document, when considered as a whole, meets the test for disclosure, it
may contain discrete pieces of information that have to be redacted. Some items
that must be redacted include:
• Personal contact information of public employees, including personal
telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann.§ 25-19-105(b)(13));
• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• Marital status of employees and information about dependents (Op. Att'y
Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently
working undercover (Ark. Code Ann. § 25-19-105(b )(1 O));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-3 85);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).
b. Employee-evaluation exception.
The second potentially relevant exception is for "employee evaluation or job
performance records," which the FOIA likewise does not define. But the
Arkansas Supreme Court has adopted this office's view that "employee evaluation
or job performance records" refers to any records (1) created by or at the behest of
the employer (2) to evaluate the employee (3) that detail the employee's
14 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Jarrod Taylor
c/o Lt. Doug Brooks
Opinion No. 2018-039
Page 6
performance or lack of performance on the job.15 This exception includes records
generated while investigating allegations of employee misconduct that detail
incidents that gave rise to an allegation of misconduct. 16
If a document meets the above definition, the document cannot be released unless
all of 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., basis); and
4. The public has a compelling interest in the disclosure of the records
   in question (i.e., compelling interest).17
   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: (I) 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
   15 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004,
   2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055.
   16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
   17 Ark Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065. Jarrod Taylor
   c/o Lt. Doug Brooks
   Opinion No. 2018-039
   Page 7
   trust should be sufficient to satisfy the "compelling public interest"
   • 18 reqmrement.
   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.19 Whether a "compelling public interest"
   exists is always a question of fact that the custodian must determine in the first
   instance, after considering 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 in the
   employee/employer relationship.20
   III. Application.
   As discussed above, when custodians receive FOIA requests for employment-
   related records, they must make two initial determinations, taking into account all
   of the relevant facts and circumstances. The first determination is whether the
   record being requested meets the definition of either a personnel record or an
   employee-evaluation record, and the second is whether the record should be
   disclosed after applying the appropriate test for that type of record. 21
   As I understand it, the custodian believes the records should be disclosed. I am
   18 Watkins, et al., at 238-39 (footnotes omitted).
   19 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.").
   2° Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
   21 In some cases dealing with employee-related records, certain records can be what we describe
   as "mixed records." A record is considered "mixed" when it can be classified as (1) more than
   one employee's evaluation record, (2) more than one employee's personnel record, or (3) at least
   one employee's evaluation record and at least one employee's personnel record. See Op. Att'y
   Gen. 2015-057. Thus a single document that names or discusses multiple employees can be
   classified in multiple ways. In such cases, the custodian must review the record, classify it as it
   relates to each individual employee, and apply the appropriate test for disclosure for each
   employee. This can lead to a case where a record that must be disclosed regarding one employee
   cannot be disclosed regarding another employee. If that happens, redactions to the record
   shielding the identity of the other employee must be made. Jarrod Taylor
   c/o Lt. Doug Brooks
   Opinion No. 2018-039
   Page 8
   unaware, however, of the basis for that decision. I have no information regarding
   the custodian's classification of the records. Properly classifying a record is
   critical so that the appropriate test for disclosure can be applied. I therefore cannot
   definitively opine on whether the custodian's decisions with respect to the records
   at issue are consistent with the FOIA.
   If the custodian has determined that the records are your employee-evaluation
   records, then they cannot be released unless all four prongs of the test for the
   disclosure of employee-evaluation records listed above are met.22 With that in
   mind, there appears to be a dispute as to whether the first prong, the "level of
   discipline," has been satisfied in this case.
   As explained above, a suspension or termination is a key element that must be
   present for the release of employee-evaluation or job-performance records under
   the FOIA. An employee's resignation ordinarily will not meet the "level of
   discipline" prong of the test for an employee-evaluation record's disclosure.23
   This office has on numerous occasions stated that "a voluntary resignation in the
   face of a disciplinary challenge does not equate to a suspension or termination."24
   On the other hand, this office has opined that, under certain circumstances, a
   resignation tendered in the face of a certain, impending termination could be
   deemed to be forced or coerced-in other words, a "constructive termination" for
   the purposes of the FOIA.25 Making this significant determination, however,
   requires fact finding that I cannot undertake in the course of an Attorney General's
   opm1on.
   In conclusion, I lack sufficient information to determine whether the custodian's
   decision to release the records at issue is consistent with the FOIA. It is the
   22 Supra text accompanying note 17.
   23 See Op. Att'y Gen. 2011-078.
   24 Id. See also Ops. Att'y Gen. 2018-024 and 2008-044 (and opinions cited therein).
   25 Op. Att'y Gen. 2011-078. Accord Ops. Att'y Gen. 2014-103, 2013-016, 2011-078, 2008-044,
   2007-322; Watkins, et al., at 231. To date, neither of Arkansas's appellate courts has addressed
   the issue of constructive termination with respect to the release of employee-evaluation records
   under the FOIA. Jarrod Taylor
   c/o Lt. Doug Brooks
   Opinion No. 2018-039
   Page 9
   custodian's responsibility to properly classify the records and apply the
   appropriate test for their disclosure, taking into consideration all of the relevant
   facts and surrounding circumstances. 26
   Sincerely,
   ~~
   Attorney General
   26 If the custodian's ultimate decision is to disclose the records, certain redactions from the
   records will have to be made prior to their release. This includes public employees' personal
   contact information (Ark. Code Ann. § 25-19-105(b)(l3) (Supp. 2017)) and other information
   from personnel records of employees or former employees, the release of which would constitute
   a clearly unwarranted invasion of personal privacy (Ark. Code Ann. § 25-19-105(b )( 12); also see
   the bulleted list contained herein, supra p. 5).