Can a city release the termination letter of a former firefighter under Arkansas FOIA when the letter explains why he was fired?

Plain-English summary

Cabot's city attorney asked the AG whether the city could release a former firefighter's termination letter in response to a FOIA request, given that the firefighter and his attorney objected. Attorney General Leslie Rutledge said yes.

A termination letter that contains the reasons for the discipline is an "employee-evaluation record" under Ark. Code Ann. § 25-19-105(c)(1), not a "personnel record" under § 25-19-105(b)(12). Evaluation records are releasable only if four conditions are all met: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution; (3) the records formed a basis for the discipline; and (4) the public has a compelling interest in disclosure. The first three were obviously satisfied. The fourth turned on the firefighter's role: like a police officer, a firefighter holds a position of public trust where the public has a strong interest in knowing about misconduct. The AG concluded the policy violations described in the termination letter "likely reflect a degree of misconduct sufficient to generate a compelling public interest in disclosure."

So the city's release decision was consistent with FOIA.

What this means for you

If you are a public employee, especially in safety-sensitive roles

Based on this opinion, if you are terminated and the termination letter spells out the reason, that letter is fairly likely to be releasable under Arkansas FOIA, particularly if your role is in public safety (firefighter, police, similar). The four-prong test for evaluation records puts a strong thumb on disclosure once the discipline is final. A "compelling public interest" can come from your rank, from the kind of misconduct (especially anything that could undermine public trust or threaten public safety), or from a documented public controversy. None of those need to all be present at once.

If you want to challenge release, the cleanest fact pattern is one where the misconduct is genuinely disconnected from your job duties (true off-duty conduct that does not affect public trust). Even there, the AG's recent opinions show release is the default for firefighters and police.

If you are a records custodian or city attorney

When evaluating a termination letter under FOIA:

1. Determine the document type. If the letter explains why the action was taken, it is an employee-evaluation record under § 25-19-105(c)(1). A bare "you are terminated effective X" with no reason is treated differently as a personnel record under § 25-19-105(b)(12).
2. Run the four-part evaluation-record test: suspension or termination, final administrative resolution, records that formed the basis, compelling public interest.
3. For the compelling-interest prong, look at: (a) the nature of the infraction (does it involve breach of public trust or gross incompetence?); (b) any public controversy connected to the agency; and (c) the employee's rank. The AG's view, consistent across many opinions, is that for police and firefighters the public-safety dimension itself can supply the compelling interest, even without a public controversy.

If you are a journalist or FOIA requester

Termination letters of public-safety personnel are usually obtainable, especially when the letter spells out the misconduct. If the custodian denies, frame your appeal around the four-part test in § 25-19-105(c)(1) and the AG's consistent reading that policy violations involving public safety create a compelling public interest in disclosure (the opinion cites Op. Att'y Gen. 2017-063 and others). The opinion gives you both the analytical framework and the concrete result.

Common questions

Q: Why is a termination letter different from a personnel record?
A: Because it is created by the employer to evaluate the employee and details the employee's performance or lack of performance on the job. Under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, that combination defines "employee evaluation or job performance records." The four-part release test under § 25-19-105(c)(1) applies, and the analysis differs from the Young v. Rice balancing test used for personnel records.

Q: What is a "compelling public interest"?
A: Not the general interest in how government employees perform (which always exists). Something tied to the specific situation: the nature of the infraction (breach of public trust, gross incompetence), an associated public controversy, or the employee's role. The AG and the leading commentators (Watkins, Peltz-Steele & Steinbuch) have built up a body of factors over decades.

Q: Are firefighter records always disclosable?
A: Not automatically, but the AG repeatedly says firefighters and police officers occupy public-safety roles where misconduct generates a compelling public interest. The presence of public-safety stakes can satisfy the fourth prong even without an active public controversy.

Q: What about confidentiality of the formal job-evaluation process?
A: It is a real concern, and the leading commentators identify it as the primary purpose of the evaluation-records exception. But the four-part release test is itself the legislature's calibration. Once those four elements are met, the legislature has decided release wins.

Q: What if the employee says release will damage their reputation?
A: The test is objective. Subjective effects on the employee's reputation do not by themselves defeat release. The AG cited Op. Att'y Gen. 2018-087 and others for this rule.

Background and statutory framework

The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 et seq., presumes records held by public bodies are open. Two exceptions to that openness target employee files:

1. Personnel records under § 25-19-105(b)(12): exempted "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Test is the Young v. Rice two-step balancing.
2. Employee evaluation or job performance records under § 25-19-105(c)(1): releasable only after final administrative resolution of suspension or termination "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."

Under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, an "employee evaluation or job performance record" is one (1) created by or at the behest of the employer (2) to evaluate the employee (3) that details the employee's performance or lack of performance on the job. The Arkansas Supreme Court adopted the AG's longstanding three-prong definition.

The custodian-opinion procedure in § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject seek a written AG opinion within strict time limits.

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Op. Att'y Gen. 2020-061; Op. Att'y Gen. 2008-065; Op. Att'y Gen. 2017-063 (compelling interest)
• Ops. Att'y Gen. 2009-020, 2008-065, 2005-175 (firefighter analogous to police for public-safety analysis)

Source

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

Original opinion text

Opinion No. 2021-089
October 25, 2021
Ben Hooper, City Attorney
c/o Jessica Looper, Paralegal
Cabot City Attorney's Office
101 North Second Street
Cabot, AR 72023
Dear Mr. Hooper:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian of the records, is based
on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2021). This subdivision
authorizes the custodian, requester, or the subject of certain employee-related
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 the City of Cabot ("City") has received a request
under the FOIA and has determined that a notice of termination issued to an
employee is among the records that are responsive to the request. The City has
decided that the notice is subject to release, and the subject of the records and his
attorney object to its release. You have attached the record in question and you ask
whether the City's decision to release it is consistent with the FOIA.

RESPONSE

Having reviewed the record at issue, it is my opinion, based on the relevant
definition and standards discussed below, that the custodian has properly classified
the record as the former employee's evaluation record. The custodian has
determined that this evaluation record meets the applicable test for disclosure; and
from the face of the record, this decision appears to be consistent with the FOIA.

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. The request was made to the City, which
is a public entity and is subject to the FOIA. Moreover, the request appears to
pertain to public records. Because the records are held by a public entity, they are
presumed to be public records, although that presumption is rebuttable.
Accordingly, given that I have no information to suggest that the presumption can
be rebutted, the analysis proceeds to the third element, that is, whether any
exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in
employees' personnel files. For purposes of the FOIA, these items can usually be
divided into two mutually exclusive groups: "personnel records" or "employee
evaluation or job performance records." 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 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.

In the instant case, the custodian has determined that the record at issue is an
employee-evaluation record. In my opinion, that determination is consistent with
the FOIA. Accordingly, I will limit my discussion to the definitions and standards
for records of that type.

The FOIA itself does not define "employee evaluation or job performance records."
But the Arkansas Supreme Court has adopted this office's view that the term 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 performance or lack of performance on the
job. This exception includes records generated while investigating allegations of
employee misconduct that detail incidents that gave rise to an allegation of
misconduct. This office has also long-opined that it includes letters notifying
employees of disciplinary action if the letters include the reason(s) for the action.

If a document meets the above definition, 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);
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).

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.

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, 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.

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.

III. Application.

The custodian has determined that the record intended for release is an employee-
evaluation record. This office has previously opined that letters notifying
employees of disciplinary action constitute employee-evaluation records if they
contain the reasons for the action. Because the notice of termination at issue here
contains the reason for the employee's termination, the custodian, in my opinion,
has properly classified it as an employee-evaluation record. Therefore, the
disclosure of the record must be evaluated under the above four-part test.

In this instance, it seems clear that the first three elements are met. As for the
fourth, the "compelling interest" element, various factors bear on the analysis,
including the employee's rank in the hierarchy and the existence of a public
controversy. But the very fact that the employee at issue is a firefighter creates a
relatively strong public interest in his conduct. This office has previously observed
that firefighters constitute a category of public servant very similar to policemen in
terms of their direct importance to the general public. Accordingly, consistent with
previous opinions of this office, I believe consideration must be given to the
potential public impact of the misconduct at issue, regardless of the employee's rank
within the fire department.

Additionally, the absence of public controversy in some circumstances establishes
little with respect to whether a compelling public interest in disclosure exists. It
is far more pertinent to the analysis that disciplinary action resulted from a violation
of policies and rules aimed at conduct that could undermine the public trust,
compromise public safety, or both. This office has consistently opined that the
violation of such a rule in itself gives rise to a compelling public interest in
disclosure of employee-evaluation records.

Although the nature of the infraction in this instance does not appear to be one
normally thought of as central to public safety, it may be described as involving a
breach of the public trust. Thus, while the existence of a compelling public interest
in the release of a particular record is always a question of fact that must be
determined in light of all the surrounding circumstances, I believe the policy
violations detailed in the record at issue likely reflect a degree of misconduct
sufficient to generate a compelling public interest in disclosure. Accordingly, I
cannot say the custodian's decision to release the record in this instance is
inconsistent with the FOIA.

In sum, based on the face of the record, it appears that the conditions under section
25-19-105(c)(1) for release of employee-evaluation records have been met, and the
custodian's decision to release the record at hand is in all likelihood consistent with
the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General