When a Little Rock complainant FOIAs her own internal complaint file, what does the city release and what does it withhold?

Plain-English summary

A complainant who had filed an internal complaint against another City of Little Rock employee filed a FOIA request asking for "a complete copy of an internal complaint filed by" her. The City's records custodian, Shella Evans, sorted the responsive documents into two piles: the complainant's own records (her statement, the decision letter sent to her), which the City planned to release to her as her own personnel records, and the rest of the file (statements and other records about the employee against whom the complaint had been filed), which the City planned to withhold because the investigation had not produced a finalized suspension or termination of the subject. Evans asked the AG to confirm.

Then-Attorney General Leslie Rutledge confirmed both pieces. The complainant's own statement and the decision letter to her are her records. They get released. The other documents are the subject employee's evaluation records, governed by the four-prong gate at § 25-19-105(c)(1), which requires a suspension or termination, finality, basis, and compelling public interest. Because the City stated that the internal complaint had not reached an administrative resolution that resulted in suspension or termination, the first two prongs failed, so the records had to stay sealed.

The opinion's structure is exactly the inverse of Op. 2021-011 (issued days earlier to the same custodian). In 2021-011, the requester was the subject of the records and was therefore entitled to her own evaluation records under § 25-19-105(c)(2). Here, the requester is the complainant, a third party with respect to the subject's evaluation records, and the four-prong gate applies. The two opinions together draw the line: who you are relative to the records changes which test runs.

Currency note

This opinion was issued in 2021. 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 isn't the complainant entitled to know how the investigation she started came out?
Because the FOIA's evaluation-records exemption protects the subject employee, not the complainant. The complainant gets the result that was communicated to her (the decision letter is her personnel record), but the subject's underlying records, witness statements, internal deliberations, are about the subject. They run through the four-prong gate when sought by anyone other than the subject.

The complainant's own statement is "her" record? Why?
The opinion treated the statement as the complainant's personnel record because she made it. The statement reflects information she generated, even though it was created in the context of an investigation about someone else. Custodians sometimes get this wrong by treating every document in an investigation file as the subject's evaluation record; the AG's analysis here disagrees.

Does the complainant get the decision letter that explains what the city did about her complaint?
Yes. The decision letter sent to the complainant is part of her records. The opinion treated it as a personnel record that the complainant is entitled to see.

Could the complainant ever see the subject's evaluation records?
Only if all four prongs of § 25-19-105(c)(1) were met: a suspension or termination, final administrative resolution, the records formed a basis for the discipline, and a compelling public interest in disclosure. The compelling-interest prong is the hardest to satisfy in routine internal complaints; it usually requires a public controversy, a serious breach of public trust, or a high-ranking employee.

Is this how all complaints work in Arkansas, or just internal-affairs investigations?
The opinion's framework applies broadly to any FOIA request directed at a public-employee complaint file. The same two-track analysis (complainant's own records under § 25-19-105(b)(12), subject's evaluation records under § 25-19-105(c)(1)) applies whether the underlying matter is internal affairs at a police department, a Title VII workplace complaint, or an academic disciplinary process at a public university.

Background and statutory framework

Arkansas's FOIA puts employee records into two mutually exclusive categories. Personnel records under § 25-19-105(b)(12) get the Young v. Rice balancing test. Evaluation records under § 25-19-105(c)(1) require the four-prong gate before they can be released to a third-party requester. The two categories are mutually exclusive: the same document is in one box or the other.

The complainant's own statement is not "evaluation" of the subject because it was not "created by or at the behest of the employer ... to evaluate the employee" under Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. It is the complainant's own writing, preserved in the file. So it falls in the personnel-records bucket, where it can be released to the complainant under Young v. Rice.

The records about the subject (statements taken from the subject, internal investigation reports, the subject's own writings created during the investigation) are evaluation records about the subject. They get the four-prong gate when a third-party requester asks. Without the gate, they stay sealed.

Citations

State statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (public record definition)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian's right to AG review)

Cases:

• 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)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 6th ed., 2017)

Related contemporaneous AG opinion:

• Op. Att'y Gen. 2021-011 (subject's own access to evaluation records during ongoing investigation; mirror-image of this opinion)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2021-013
January 25, 2021
Shella A. Evans Ed.D., Manager
Labor and Employee Relations Division
500 West Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Ms. Evans:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as records custodian, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). 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 Little Rock has received a request under the FOIA for "a complete copy of an internal complaint filed by" the complainant. You have attached documents that you believe are responsive to the request and that you intend to release, stating that they are the requester's personnel records. Other records you have presented for my review are ones you have classified as evaluation records of another employee that are not subject to disclosure under the FOIA because the internal complaint has not reached an administrative resolution that has resulted in suspension or termination. You ask whether your decisions to release only the records submitted by the complainant and withhold the remaining records is consistent with the FOIA.

RESPONSE
Having reviewed the records, it is my opinion, based on the face of the records and pursuant to the definitions and standards discussed below, that your decisions regarding the records at issue appear to be consistent with the FOIA. I concur with your decision to release the decision letter sent to the complainant and the complainant's recorded statement as the complainant's own personnel records. As to the remaining records, based on the face of the records and the limited facts before me, it appears that your classification of those records as another employee's evaluation records is consistent with the FOIA. Finally, based on your correspondence that "the internal complaint has not reached an administrative resolution that has resulted in suspension or termination[,]" the decision to withhold those records from disclosure is consistent with the FOIA.

DISCUSSION

Sincerely,
LESLIE RUTLEDGE
Attorney General