What does Arkansas's AG say when an ADH employee objects to a FOIA release of his termination records?

Plain-English summary

This opinion is part of the Arkansas Department of Health (ADH) FOIA cluster also addressed in Op. Att'y Gen. 2020-036, 2020-038, 2020-039. ADH had received a single broad FOIA request for "all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020." Multiple employees objected to release of records about themselves. The AG handled each in a separate opinion.

In this opinion, the AG looked at the face of the records and concluded the custodian's decision to release them was not inconsistent with the FOIA. The records appeared to be public records and no exemption appeared to shield them from disclosure.

The AG did not write a detailed application section here, treating the answer as fact-bound and the records as adequately analyzed by the custodian. Within the standard Arkansas FOIA framework (personnel records under § 25-19-105(b)(12) subject to Young v. Rice balancing; evaluation records under § 25-19-105(c)(1) subject to the four-prong test), termination records typically meet the four-prong test: the employee was terminated (level of discipline), the termination was administratively final (finality), the records formed the basis for the termination (basis), and termination of a public employee with surrounding documentation can give rise to compelling public interest in disclosure.

For the records subject, the practical takeaway is that termination records about a public employee are generally releasable under the four-prong test, with standard redactions of personal information.

Currency note

This opinion was issued in 2020. 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 is the AG's analysis here shorter than in Op. Att'y Gen. 2020-038 (Planey)?
The Planey opinion involved three records and a more complex classification analysis (one personnel record, one mixed personnel/evaluation record, one evaluation record), with a careful walk through the compelling-interest factors. This opinion appears to have presented a cleaner question on its face. The AG's framework is the same; only the application varies.

What does 'no exemption appears to shield them from disclosure' mean?
That the AG, looking at the records the custodian provided, did not see any of the standard FOIA exemptions applying to keep them out of public view. Personnel records would have to fail the Young balancing test (which is hard given the public-interest tilt). Evaluation records would have to fail the four-prong release test. Neither happened here.

What if the records subject thinks the AG got it wrong?
The records subject can pursue civil litigation in circuit court under Ark. Code Ann. § 25-19-107. The AG opinion is advisory and persuasive but not binding. A judge could reach a different conclusion in a contested release proceeding.

Are there standard redactions that still apply?
Yes. Even when the overall record is releasable, the custodian must redact: personal contact information, employee personnel numbers, marital status and dependent information, dates of birth, social security numbers, medical information, undercover-officer identifying information, driver's license numbers and copies, insurance coverage, tax/withholding, payroll deductions, and banking information.

What's different between this opinion and 2020-039 (Wylie)?
The Wylie opinion noted that no records had been submitted, so the AG could only recite the standards. This opinion, by saying "based on the face of the records in question," indicates the AG did look at records (or at least at the custodian's classification of them on the face of the request). The substantive conclusions track but the procedural posture differs.

Background and statutory framework

Same as the other 2020 ADH FOIA opinions (2020-036, 2020-038, 2020-039) and the broader Arkansas FOIA case law. Ark. Code Ann. § 25-19-105(b)(12) for personnel records, § 25-19-105(c)(1) for evaluation records, with the four-prong release test for evaluation records. Young v. Rice and Thomas v. Hall control the substantive analysis. Pulaski County v. Arkansas Democrat-Gazette establishes the rebuttable public-record presumption. Stilley v. McBride puts the burden on the resisting party.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019)
• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• 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. 2020-035
July 21, 2020
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019).

Your correspondence indicates that the Arkansas Department of Health ("ADH") has received a request under the FOIA for records of all investigations, complaints or disciplinary actions in which employees of ADH were suspended or terminated from January 1, 2019 to July 10, 2020. The custodian has identified records relating to your termination as responsive and intends to release them with redactions of personal information. You object.

RESPONSE

Based on the face of the records in question, I cannot say the custodian's decision in this instance is inconsistent with the FOIA. The requested records appear to be public records and no exemption appears to shield them from disclosure.

DISCUSSION

[Sections I and II of the original opinion reproduce the same general FOIA disclosure standards, the personnel-records exception, the redaction-categories list, and the employee-evaluation exception standards as detailed in Op. Att'y Gen. 2020-048. The same statutory citations and the same cases (Pulaski County v. Arkansas Democrat-Gazette, Young v. Rice, Stilley v. McBride, Thomas v. Hall) apply.]

Sincerely,

LESLIE RUTLEDGE
Attorney General