When a workplace investigation produces interview notes about multiple employees, what is releasable under Arkansas FOIA?

Plain-English summary

The Arkansas Teacher Retirement System (ATRS) had an internal complaint between two employees. Two investigators interviewed both employees and several witnesses, taking notes on each interview. No one was suspended or terminated. After the investigation closed, several interviewees filed FOIA requests for their own question sheets, and the complainant and respondent each requested some sheets too. The ATRS HR manager asked the AG whether her classification and disclosure decisions were consistent with FOIA.

The AG said: partly consistent. The opinion is a clinic in how Arkansas treats workplace-investigation records.

Step one: classification. Each question sheet has two FOIA characters at once.
- For the interviewee whose answers it records, the sheet is a "personnel record" (it pertains to that employee but does not formally evaluate them).
- For the complainant or respondent whose performance is being investigated, the sheet is an "employee-evaluation record" (it was created by the employer to evaluate that employee on the alleged conduct).

This dual character makes them "mixed records" in Arkansas FOIA terminology. Both tests must be applied side by side.

Step two: the personnel-records test. A personnel record is releasable unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. The scale is already tipped toward disclosure. Custodian decides:
- Is the privacy interest more than minimal?
- If yes, does the public's interest in disclosure outweigh that privacy interest?

ATRS concluded that the interviewees' names are not highly sensitive enough to be withheld. The AG agreed: this is consistent with FOIA.

Step three: the employee-evaluation test. Evaluation records can only be released when all four prongs are met: (1) the employee was suspended or terminated, (2) there was a final administrative resolution, (3) the records formed the basis for that decision, and (4) the public has a compelling interest in disclosure. Here, the investigation closed without suspension or termination, so the first prong fails. So the parts of the question sheets that evaluate the complainant's or respondent's performance must be withheld.

Step four: the mixed-records balancing. Because each sheet is both a personnel record (of the interviewee) and an evaluation record (of the complainant/respondent), the disclosure test is the strictest applicable to each piece of information. Names of interviewees: releasable (personnel-records test allows release). Performance comments about complainant/respondent: must be withheld (evaluation-records test bars release without suspension/termination).

Step five: classification error in ATRS's approach. ATRS treated the question sheets as the evaluation records of "any other employee who is the subject of a note concerning that employee's job performance." This is wrong, the AG said. Mentioning an employee's performance in passing does not transform the record into that employee's evaluation record. The record must be created by or at the behest of the employer, to evaluate that specific employee, and detail their performance. A note about how Employee C performed her job, dropped into Employee A's interview about Employee B, does not become Employee C's evaluation record.

Step six: disclosure to the interviewees themselves. ATRS planned to give each interviewee a redacted copy of their own question sheet (with comments about other employees redacted). The AG said this is wrong: "each person is entitled to inspect and copy his or her own personnel records or employee evaluation records, even if those records would otherwise be exempt from release" (A.C.A. § 25-19-105(c)(2)). Each interviewee gets the entirety of their own question sheet, with no redactions of mentions of other employees.

Step seven: complainant's and respondent's access. The complainant gets the entirety of all question sheets that evaluate the complainant. The respondent gets the entirety of all question sheets that evaluate the respondent. But each only sees the interviewees' names (not the performance content) on the question sheets evaluating the other party. So the complainant can see who was interviewed about the respondent, but cannot see what they said about the respondent.

The deeper takeaway: workplace-investigation records in Arkansas have a complex disclosure architecture. The default is exempt-from-public-release if no one was disciplined, but the subject of the records always has access to their own information. Mixed-records analysis requires careful piece-by-piece treatment.

What this means for you

HR managers and workplace investigators in Arkansas public agencies

Build the record-classification analysis into your investigation procedures from the start.

Document each interview as its own record, with clear identification of the interviewee. This makes the personnel-record / evaluation-record split easier to analyze later.

When the investigation closes:
- If no one was suspended or terminated: evaluation portions remain confidential to the public, but the subject employee (complainant/respondent) is still entitled to their full evaluation file.
- If someone was suspended or terminated: apply the four-prong test. The public interest prong is fact-specific and must be documented.

When responding to FOIA requests:
- Each interviewee gets a complete copy of their own interview sheet. No redactions of comments about other employees.
- Public requesters get a redacted version: interviewee names yes, performance comments no.
- Subject employees (complainant/respondent) get full copies of sheets evaluating them, but only see names (not content) on sheets evaluating the other party.

Train HR staff to recognize "mixed records" patterns. The default classification of an interview record varies by which employee is asking and what part of the sheet is at issue.

Public employees who participated in a workplace investigation

You are entitled to your own interview record in full. If your employer offers you a redacted copy, ask for the unredacted version of your own statement, citing A.C.A. § 25-19-105(c)(2) and Op. 2023-040.

You are not entitled to the substantive content of others' interviews unless you were the subject of the investigation (and even then, only if the investigation resulted in your suspension or termination, or if the others' comments specifically evaluate you).

FOIA requesters seeking workplace-investigation records

If the investigation closed without suspension or termination of the subject employee, the evaluation portions are exempt. You can typically still get:
- Names of participants (witnesses, investigators).
- Procedural records (the investigation procedure itself, the complaint allegation in general terms, the resolution decision).
- Aggregate statistics (counts of complaints, average time to resolution).

If you are seeking accountability for serious misconduct that did not result in formal discipline, document why a "compelling public interest" might exist anyway. The four-prong test is strict; without suspension or termination, evaluation records are not releasable through this path.

Complainants and respondents in active investigations

You have meaningful FOIA rights as the subject of the investigation. After the investigation, you can request:
- The full evaluation file about you.
- The names of who was interviewed (regardless of whose evaluation file).
- Your own interview sheet in full.

You will not get the substantive content of others' interviews if those interviews evaluate the other party (complainant or respondent) and the investigation closed without discipline.

Employee-relations attorneys advising HR clients

This opinion is the working framework for FOIA-response decisions on Arkansas public-sector workplace investigations. Pair it with:
- Young v. Rice (the balancing test for personnel records).
- Thomas v. Hall (the definition of evaluation records).
- The "compelling public interest" framework from Watkins et al., The Arkansas FOIA (6th ed.).

The mixed-records framework is doctrinally well-developed in Arkansas. The classification step is fact-specific; document the analysis in writing.

Investigative journalists working on public-sector misconduct stories

Workplace investigations that close without discipline are largely exempt from FOIA in Arkansas. Alternative access pathways:
- Litigation discovery if a related civil suit is filed (different rules).
- Sources who participated in the investigation (interviewees can speak voluntarily even if their records are exempt).
- Whistleblower protections may protect sources who share information.
- Procedural records and aggregate statistics through FOIA.

Common questions

My HR department is planning to give me only my own answers in my interview record. Can they redact comments about other employees?
No, not when releasing to you. You are the subject of your own personnel record under A.C.A. § 25-19-105(c)(2). You are entitled to the full record. ATRS made this same mistake and the AG corrected it.

Can other employees in the office see my interview sheet?
Generally no, unless they are the complainant or respondent and the sheet evaluates them. Members of the public can see names of interviewees but not the content.

What if the investigation was about me and I want everything?
You are the subject of evaluation records about you. You can see all evaluation records about you in full. You can see names on others' interview sheets but not the substantive content of those sheets unless you are the subject of those evaluations.

The investigation didn't result in any discipline. Why are some records still public?
Even when no discipline is imposed, the personnel-record portions (names, procedural facts) may be releasable under the Young v. Rice balancing test. Only the evaluation portions are categorically blocked when no discipline was imposed.

What's the difference between a personnel record and an evaluation record?
A personnel record pertains to an employee but does not formally evaluate them. An evaluation record is created by the employer specifically to evaluate the employee, and details their performance or lack of performance on the job. The same document can be both, depending on which employee you focus on.

Can the union representative see my investigation file?
Through FOIA, the union has the same rights as any member of the public. Through the collective bargaining agreement (if applicable), the union may have additional contractual access rights. Public-sector unions in Arkansas operate under specific labor relations frameworks; consult union counsel.

What if my employer says they need to keep my own statement confidential because of "personnel privacy"?
The privacy belongs to you as the subject of the record. You can waive it. Cite A.C.A. § 25-19-105(c)(2): each person is entitled to inspect and copy his or her own personnel records or employee evaluation records.

Background and statutory framework

Arkansas FOIA distinguishes between two categories of employee records:

Personnel records (A.C.A. § 25-19-105(b)(12)): All employee records other than evaluations. Releasable to the public unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the two-step Young v. Rice balancing test. The scale starts tilted toward disclosure.

Employee-evaluation or job-performance records (A.C.A. § 25-19-105(c)(1)): Records created by or at the behest of the employer to evaluate the employee that detail the employee's performance. Releasable only if all four prongs are met: (1) suspension or termination, (2) finality, (3) basis, (4) compelling public interest. The compelling-interest factor is fact-specific (nature of infraction, public controversy, employee's rank).

Mixed records. A single document can be both, when it covers multiple employees in different ways. The disclosure analysis applies separately to each component.

Subject-of-records access. A.C.A. § 25-19-105(c)(2): regardless of public-disclosure status, the subject of the records is entitled to inspect and copy their own personnel and evaluation records. This trumps the personnel and evaluation tests when the request comes from the subject.

FOIA opinion process. Under A.C.A. § 25-19-105(c)(3)(B)(i), the custodian, requester, or subject of certain employee records can ask the AG for an opinion on whether the custodian's release decision is consistent with FOIA. This is the procedural posture of Op. 2023-040.

The leading commentary is John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017), which the AG cites repeatedly throughout employee-records opinions.

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public record)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(c)(1) (employee-evaluation records exemption)
• A.C.A. § 25-19-105(c)(2) (subject-of-records access right)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion on disclosure decisions)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel-records balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (recognizing AG's evaluation-records definition)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
• John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)

Source

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

Original opinion text

Opinion No. 2023-040
May 25, 2023
Vicky Fowler
Human Resources Manager
Arkansas Teacher Retirement System
1400 West Third Street
Little Rock, Arkansas 72201

Dear Ms. Fowler:

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 A.C.A. § 25-19-105(c)(3)(B)(i). 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.

As background for your request, you explain that one employee ("Complainant") filed an internal complaint against another employee ("Respondent"). This complaint gave rise to an internal investigation during which two investigators met with the Complainant, Respondent, and several witnesses. During those meetings, the investigators recorded their own notes along with each person's answers to a standard set of questions. The investigation did not result in anyone being suspended or terminated.

The FOIA requests you have received are for some or all documents that reflect the answers to the investigators' set of questions. Some of the interviewed employees have requested copies of their own question sheets. And while both the Complainant and Respondent have requested documents, it is not clear whether they have requested the entire set of documents or just the subset that constitute their own evaluations. In your efforts to respond to these FOIA requests, you ask me to review the following two sets of decisions:

• Classification: You have classified the records at issue as, what this office has called, "mixed records," because the records are the personnel record of the person answering the questions and the evaluation record of the person about whom the questions are being answered; and
• Disclosure: In response to the requests from the interviewed employees, you have decided to disclose to each interviewee only his or her respective question sheet. But you have decided to redact from those documents any part of the document that mentions the job performance of another employee. Your disclosure decision regarding the requests from the Respondent and the Complainant are unclear.

RESPONSE

In my opinion, your classification and disclosure decisions are only partly consistent with the FOIA.

DISCUSSION

1. General rules. 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 Arkansas Teacher Retirement System ("ATRS"), which is a public entity and is subject to the FOIA. And the records you intend to disclose appear to be 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, I will focus on whether any exceptions prevent the documents' disclosure.

The FOIA contains two exemptions for two groups of documents 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 first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2. Personnel-records exception. While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records other than "employee evaluation or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is a question of fact that requires one to review the record itself.

A personnel record is open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing test, which takes place with the scale already tipped in favor of disclosure, has two steps. Under the first step, 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 minimal privacy interest. If it is only minimal, then the privacy interest will not overcome the fact that the scale is already tipped in favor of disclosure, and the record must be disclosed. But if the privacy interest is more than merely minimal, the custodian moves to the second step when she must determine whether the privacy interest is outweighed by the public's interest in disclosure.

Because the exceptions 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. The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

3. Employee-evaluation exception. The second relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court 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.

Additionally, some employee-related records constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record.

If a document qualifies as an employee-evaluation record, 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, for that concern is, at least theoretically, always present. 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 between employees and their employers.

4. Your classification decision. The question sheets can be classified as the "personnel records" of the interviewed employees because they mostly consist of the interviewed employees' statements. In other words, the records "pertain" to those employees.

Additionally, the question sheets were created by or at the behest of ATRS to evaluate the Complainant and the Respondent, and they detail the Complainant's and Respondent's performance or lack of performance on the job. Therefore, each question sheet can be classified as the Complainant's or Respondent's evaluation record, depending on which person the sheet is evaluating.

You have also determined that the question sheets constitute the employee evaluation or job performance records of "any other employee who is the subject of a note concerning that employee's job performance." However, this conclusion is not consistent with the FOIA. Simply mentioning an employee's job performance in a record is not enough to transform the record into that employee's evaluation record. Rather, the record must be (1) created by or at the behest of the employer (2) to evaluate the employee and (3) detail the employee's performance or lack of performance on the job. Because the second part of the definition for employee evaluation or job performance records would not be met for anyone other than the Complainant or the Respondent in this case, this part of your decision is inconsistent with the FOIA.

In sum, the question sheets are "mixed records" because they can be classified as both the personnel records of the interviewed employees and the evaluation records of the Complainant or Respondent. As a result, you will apply both tests for release and make the appropriate redactions.

5. Your disclosure decisions. Your correspondence notes that the internal investigation did not result in the suspension or termination of any employee. Therefore, the test for release of employee evaluation records has not been met. Accordingly, the portions of the question sheets that evaluate the Complainant's or Respondent's job performance should generally be withheld.

The remainder of the information in the records, including the names of the employees being interviewed, should be analyzed under the personnel records balancing test. You have determined that this information, including employee names, is not of such "a highly sensitive nature" that it should be withheld. Therefore, you have decided to release the employees' names. This determination is consistent with the FOIA.

But your decision to redact from the documents provided to each interviewed employee is inconsistent with the FOIA. Under the FOIA, each person is entitled to inspect and copy his or her own personnel records or employee evaluation records, even if those records would otherwise be exempt from release.

As I noted above, it is unclear how you have decided to respond to the requests from the Complainant and Respondent. You say that both the Complainant and the Respondent have requested disclosure of the question sheets and the names of the interviewed employees. It is not clear whether the Complainant and Respondent have each requested all the question sheets or only those question sheets evaluating their respective job performance. Because your correspondence notes that "the Complainant is already entitled to the disclosure of any notes recorded about his job performance," I assume, for purposes of this opinion, that you intend to release to the Complainant the entirety of the question sheets evaluating the Complainant. Because the interviewed employees' names are subject to release under the personnel balancing test and because the Complainant is entitled to his own evaluation records, this decision is consistent with the FOIA. Similarly, the Respondent would be entitled to the entirety of the question sheets evaluating the Respondent's performance. But for reasons explained above, the Complainant would only be entitled to see the interviewed employees' names on records evaluating the Respondent's job performance, and the Respondent would only be entitled to see the interviewed employees' names on records evaluating the Complainant's job performance.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General