Can a former Arkansas public employee block release of her termination letter under FOIA, and can she get her own personnel and evaluation records from her former employer?

Plain-English summary

Sheila Pauley, a former Arkansas public employee with the Arkansas Psychology Board, asked AG Dustin McDaniel for two FOIA opinions:

Question 1: Someone whose name and contact information were never given to Pauley submitted a FOIA request for her "personnel file." The custodian planned to release a termination letter and unspecified unemployment information. Pauley objected on the basis of an unrelated "personal, open legal issue" that she believed gave her a constitutional privacy interest superseding disclosure. Was the planned release consistent with FOIA?

Question 2: Pauley herself submitted a FOIA request for her own personnel file and for a "personal file" she had kept in her office (containing overtime documentation). She received only a few documents and never got the "personal file." Was that decision consistent with FOIA?

The AG could not answer Question 1. The records had already been released by the time the AG got the request. The procedural rule under A.C.A. § 25-19-105(c)(3)(B)(i) is that an opinion request must be made before the custodian releases the documents, and the custodian must wait for the AG opinion before releasing. With the records already out the door, the AG cannot evaluate the decision. The AG cited Op. 2002-177 for the same proposition: this office is "unable to respond" to a request when the records have already been released, "thus rendering" the request "moot."

On Question 2, the AG spoke more generally. A.C.A. § 25-19-105(c)(2) (Supp. 2013) provides: "Any personnel or evaluation records exempt from disclosure under this chapter shall nonetheless be made available to the person about whom the records are maintained or to that person's designated representative." So Pauley, as a former public employee, was entitled to copies of her own personnel and evaluation records. The AG noted he couldn't confirm whether the custodian had complied with this rule because he hadn't seen the actual records. He also flagged that there are occasions when information must be redacted before providing an employee her own records (see Op. 2000-058), but he lacked facts to apply that doctrine to the situation. As for the "personal file" Pauley kept in her office, the AG assumed for purposes of the opinion that its contents qualified as "personnel records" within A.C.A. § 25-19-105(b)(12), without ruling on the classification.

The practical takeaways: timing matters. A subject of records who wants to block release through AG review has to request the AG's opinion before the custodian releases the records. And public employees, current or former, have a statutory right to their own personnel and evaluation records under FOIA.

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

Can a former Arkansas public employee get their own personnel records under FOIA?
At the time of this opinion, yes. A.C.A. § 25-19-105(c)(2) gives current and former public employees the right to receive their own personnel and evaluation records, even ones that would be exempt from disclosure to a third party.

Can the subject of a personnel-record request block disclosure?
The subject can ask the AG to review the custodian's decision under A.C.A. § 25-19-105(c)(3)(B)(i), but the request must be made before the custodian releases the records. Once the records are out the door, the AG cannot review the decision.

What's the custodian's duty when an AG opinion request is pending?
The custodian must wait for the AG opinion before releasing the records that are subject to the request. Releasing prematurely deprives the subject of the AG-review process.

What if the custodian doesn't tell the employee who is requesting their records?
Practically, this can be an issue. In Pauley's case, she was told the request existed but not the name, organization, or contact information of the requester. FOIA does not require the custodian to disclose the requester's identity to the subject of the records.

Can an employee's "personal file" kept in their office be public under FOIA?
Possibly, if the file contains records relating to the employee's public employment and meets the definition of "personnel records." Whether a given personal file qualifies depends on its contents. The AG didn't rule on Pauley's specific personal file.

Does the subject sometimes need to receive a redacted version of their own personnel record?
Yes. The AG cited Op. 2000-058 for the proposition that there are occasions when information must be redacted before providing an employee her own personnel or evaluation records. Examples might include identifying information about third parties or law enforcement investigative information not directly about the employee.

Background and statutory framework

The Arkansas FOIA framework for personnel records provides multiple distinct rights:

• Third-party access (A.C.A. § 25-19-105(b)(12)): personnel records released unless "clearly unwarranted invasion of personal privacy."
• Third-party access to evaluation records (A.C.A. § 25-19-105(c)(1)): four-part test (suspension/termination + final resolution + records form basis + compelling public interest).
• Subject access (A.C.A. § 25-19-105(c)(2)): current and former public employees may receive their own personnel and evaluation records on request, regardless of public-disclosure exemptions.
• AG review (A.C.A. § 25-19-105(c)(3)(B)(i)): custodian, requester, or subject may ask the AG for an opinion on whether the custodian's decision is consistent with FOIA. Must be requested before release.

The procedural rule that AG review is only available pre-release is implicit in the statute's structure: the AG opinion is meant to guide the custodian's decision, not to evaluate decisions already made. Op. 2002-177 made this explicit. Once records are released, the issue is moot.

Constitutional privacy claims (McCambridge v. City of Little Rock, 298 Ark. 219, 1989) can sometimes override FOIA disclosure obligations. The custodian makes the initial fact-bound determination and balances the public interest in disclosure against the privacy interest. The 2014 opinion didn't reach this question because the records were already released.

The Op. 2000-058 issue is a separate doctrine: even when a subject has the right to receive their own records under § 25-19-105(c)(2), the custodian can redact certain categories of information before providing the records. The 2014 opinion noted this rule but didn't apply it to Pauley's facts.

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)(2) (Supp. 2013) (subject access to own personnel and evaluation records)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• Op. Att'y Gen. 2002-177 (AG cannot review already-released records)
• Op. Att'y Gen. 2011-051 (personnel and evaluation records definitions and disclosure rules)
• Op. Att'y Gen. 2000-058 (redaction may be required even for subject's own 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. 2014-047
May 2, 2014

Ms. Sheila E. Pauley
c/o Arkansas Psychology Board
101 East Capitol Avenue, Suite 415
Little Rock, Arkansas 72201

Ms. Pauley:

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 you are seeking my opinion on the custodian's
response to two FOIA requests for your employment records. The first request was
from someone, as you say, whose "name, organization, or contact information"
you were never given. That requester seeks a copy of your "personnel file." You
say that the custodian communicated to you that she intends to disclose a copy of
your "termination letter" and unspecified "unemployment information." You
object to the release of these documents because you say that you have a
"personal, open legal issue not related to [your] employment," and you think this
legal issue gives rise to a constitutional right to privacy that would "supersede any
disclosure" obligation.

The other FOIA request for your employment records was made by you. You say
that you are a former public employee who made a FOIA request for your
"personnel file" and for a "personal file" that you maintained in your office. The
"personal file" contained "documentation" relating to overtime you worked. You
say that you received only a few documents from your personnel file and that you
never received the "personal file." You ask whether these decisions are consistent
with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Because I have not seen any of the records at issue, I cannot opine about
the release of any specific documents. Further, because the termination letter and
"unemployment information" have already been released to the requester, I cannot
evaluate that decision. When an authorized person under 25-19-105(c)(3)(B)(i)
requests my opinion, that request must take place before the custodian releases the
documents and the custodian must wait to release the records until my opinion has
been issued. Therefore, a review of the custodian's decision regarding the first
request is beyond the scope of this opinion.

I can, however, speak generally about the custodian's decision regarding your own
request. The FOIA authorizes current and former public employees to receive their
own personnel and evaluation records: "Any personnel or evaluation records
exempt from disclosure under this chapter shall nonetheless be made available to
the person about whom the records are maintained or to that person's designated
representative." Therefore, you are entitled to copies of your personnel records
and your evaluation records. Because I have not seen the records at issue, I cannot
say whether the custodian has complied with the FOIA when releasing these
records to you.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/RO:cyh