When a city releases the personnel files of two former police officers, what can it redact and what must come out?

Subject

Which redactions the Arkansas FOIA allowed in the personnel files of two former Maumelle Police Department employees, and when employee evaluations in those files could be released.

Plain-English summary

Maumelle's records custodian proposed releasing most personnel records with personal identifiers removed. The custodian also wanted to redact references' names and contact information, time-off records, and change-in-benefits records. The AG approved the first group of redactions and rejected the latter three for the records he reviewed.

The properly redacted details were the former employees' phone numbers, addresses, dates of birth, Social Security numbers, employee numbers, marital status, and information about dependents. The AG found that the privacy interests in those details outweighed the public interest in disclosure.

The AG said the custodian should not redact references' names and contact details, documents about time off and requests for time off, or change-in-benefits records. Footnote 29 gives an important limit for leave records: information about an employee's illness or medical condition may present a clearly unwarranted invasion of privacy. If the custodian makes that finding, the medical details should be redacted while documents that merely record absence dates are disclosed.

The custodian had separately classified some records as employee evaluations. Withholding evaluations that did not result in suspension or termination was consistent with the FOIA. Releasing the evaluations that did result in suspension or termination was also consistent with the FOIA because the four-part release test appeared to be met for those records.

What this means for you

Records custodians reviewing a similar file

Classify each record before applying a release test. For these personnel records, the AG approved specific personal-information redactions but found the proposed wholesale redaction of references, time-off material, and benefit changes inconsistent with the FOIA. Check leave records for illness or medical-condition details; footnote 29 explains the possible redaction of those details while absence dates remain available.

For employee evaluations, check all four statutory conditions: suspension or termination, final administrative resolution, whether the records formed a basis for that decision, and a compelling public interest in disclosure. The AG found the custodian's planned withholding and release consistent with those conditions on the records submitted.

FOIA requesters

This opinion supports seeking references' names and contact information, time-off records, and change-in-benefits records in the kind of personnel files the AG reviewed. It does not say every line of a leave record must be disclosed: footnote 29 recognizes possible redaction of private medical details.

Former employees

The AG approved the custodian's proposed redactions of the listed personal identifiers in these files. If leave records reveal an illness or medical condition, footnote 29 says the custodian should assess those details separately from dates of absence.

Common questions

Can the city withhold the names and contact details of references?

For the records reviewed here, no. The AG found those proposed redactions inconsistent with the FOIA and cited an earlier opinion on disclosure of standard employee-intake records, including references.

Are sick-leave and vacation records released?

The AG said the custodian should not redact documents related to time off and time-off requests. His footnote says medical details may be redacted after a privacy finding, while records that merely show absence dates should still be disclosed.

When are evaluation records released?

The opinion lists four requirements: suspension or termination, final administrative resolution, records forming a basis for the decision, and a compelling public interest. The AG concluded the test appeared to be met for evaluations that led to suspension or termination in the files he reviewed. He approved withholding the others.

Were benefit-change records withheld?

No. The AG found the proposed redaction of change-in-benefits records inconsistent with the FOIA because the records were not personal or intimate enough to create more than a minimal privacy interest.

Background and statutory framework

The opinion distinguishes personnel records from employee-evaluation or job-performance records. Personnel records pertain to an employee but were not created by or for the employer to evaluate that employee. Their release turns on whether disclosure would be a clearly unwarranted invasion of personal privacy, assessed through the Young v. Rice balance.

Evaluation records are created by or for the employer to assess job performance and detail that performance. A.C.A. § 25-19-105(c)(1) permits their release only when all four conditions described above are met. The AG applied those separate tests to the records submitted by Maumelle's custodian.

Currency note

This opinion was issued in 2025. Check current FOIA law and the particular records before deciding what to disclose or redact.

Citations

• A.C.A. § 25-19-105(b)(12) (personnel-record privacy exemption)
• A.C.A. § 25-19-105(b)(13) (personal contact information)
• A.C.A. § 25-19-105(c)(1) (evaluation records)
• A.C.A. § 25-19-105(f) (redaction of discrete information)
• Young v. Rice, 308 Ark. 593 (1992) (privacy balance)
• Thomas v. Hall, 2012 Ark. 66 (evaluation-record definition)
• Ark. Att’y Gen. Op. 2024-062 (medical details and absence dates, quoted in footnote 29)

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2024-097

January 2, 2025

Andrew Thornton
City Attorney
City of Maumelle
550 Edgewood Drive
Maumelle, Arkansas 72113

Via email only: [email protected]

Dear Mr. Thornton:

You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the attorney for the custodian of personnel and evaluation records, is based on A.C.A. § 25-19-105(c)(3)(B)(i).

You indicate that the City of Maumelle received a FOIA request for the “personnel file[s]” of two former employees of the Maumelle Police Department. The records custodian has classified most of the personnel files as personnel records, and the custodian intends to release those records with redactions of the former employees’ phone numbers, addresses, dates of birth, social security numbers, employee numbers, marital status, and information about dependents. The custodian also intends to redact references’ names and contact information, documents related to time off and requests for time off, and change-in-benefits records.

The custodian has classified the remaining records as employee evaluations. The custodian intends to withhold the employee evaluations that did not result in suspension or termination of the former employees. And the custodian intends to release the employee evaluations that resulted in suspension or termination.

You have provided me with unredacted copies of the personnel files, along with the custodian’s proposed redactions. The former employees object to the release of the records. You ask if the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian has correctly classified the personnel records and has properly redacted the former employees’ phone numbers, addresses, dates of birth, social security numbers, employee numbers, marital status, and information about dependents. But the custodian’s

323 CENTER STREET, SUITE 200
LITTLE ROCK, ARKANSAS 72201

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 2

redactions of references’ names and contact information, documents related to time off and requests for time off, and change-in-benefits records are inconsistent with the FOIA.

In addition, the custodian has properly classified the employee-evaluation records. The custodian’s decision to withhold the employee evaluations that did not result in suspension or termination of the former employees is consistent with the FOIA.

Finally, the custodian’s decision to release the employee evaluations that resulted in suspension or termination is also consistent with the FOIA. The four-part test for release of employee-evaluation records appears to be met.

DISCUSSION

1. General rules. A document must be disclosed in response to a FOIA request if (1) the request
   was directed to an entity subject to the FOIA, (2) the requested document is a public record, and (3) no exceptions allow the document to be withheld. 1

The first two elements appear to be met. The request was made to the City of Maumelle—a public entity subject to the FOIA. 2 And the records at issue appear to be public records. 3 Because these records are held by a public entity, they are presumed to be public records, 4 although that presumption is rebuttable. 5 I have no information to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the documents’ disclosure.

For FOIA purposes, documents in a public employee’s file can usually be divided into two mutually exclusive groups: “personnel records” 6 and “employee evaluation or job performance

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2
E.g., Ark. Att’y Gen. Ops. 2024-095, 2023-120, 2020-028.
3
The FOIA defines public records as “writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and that constitute a record of the performance or lack of performance of official functions…carried out by a public official or employee.” A.C.A. § 25-19-103(7)(A). 4 Id.
5
See Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007) (“[T]he presumption of public record status established by the FOIA can be rebutted if the records do not otherwise fall within the definition found in the first sentence, i.e., if they do not ‘constitute a record of the performance or lack of performance of official functions.”’ (quoting Ark. Att’y Gen. Op. 2005-095)). 6 A.C.A. § 25-19-105(b)(12) (“It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter … [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”)

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 3

records.” 7 Personnel records are records that pertain to an individual employee that were not created by or at the behest of the employer to evaluate the employee. 8 Employee evaluation and job-performance records, on the other hand, are 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. 9

The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a “personnel record” or an “employment evaluation or job performance record” and then apply the appropriate test for that record to determine whether the record should be release under the FOIA.

2. Personnel records. A personnel record is open to public inspection except “to the extent that
   disclosure would constitute a clearly unwarranted invasion of personal privacy.” 10 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. 11 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 12

First, 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. 13 If the privacy interest is minimal, then disclosure is required. Second, if the information gives rise to a greater than minimal privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public’s interest in disclosure. 14

7
Id. § 25-19-105(c)(1) (“[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding 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.”) 8 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
9
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s office); Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, 93-055 (demotion). 10 A.C.A. § 25-19-105(b)(12).
11
308 Ark. 593, 826 S.W.2d 252 (1992).
12
John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
13
Young, 308 Ark. at 598, 826 S.W.2d at 255.
14
Id.

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 4

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee’s privacy interests outweigh the public’s interests. 15 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. 16

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that must be redacted. 17 For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses. 18

3. Employee-evaluation records. The second relevant exception is for “employee evaluation or
   job performance records,” which are 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. 19 “This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 20

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., relevance); and

4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 21

15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
16
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 12, at 207.
17
A.C.A. § 25-19-105(f).
18
See id. § 25-19-105(b)(13).
19
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren School Dist., 2019 Ark. App. 466, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-evaluation records developed by the Attorney General’s office); Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, and 93-055. 20 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
21
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 5

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. 22

These commentators also note that “[t]he status of the employee” or “his or her rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists, 23 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. 24 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. 25

4. Classification and disclosure of personnel records. “Personnel records” encompass many
   types of information found in a personnel file: job titles, salary and payroll records, change-of- status records, pension and benefit records, records of sick leave and vacation time, requests for voluntary demotion, background investigations, and photographs of the employee. 26 Here, the custodian has correctly classified these documents as personnel records because they relate to the former employees but they were not created by the employer to evaluate them.

A personnel record must be released when the public’s interest in the record outweighs the employee’s privacy interest in the document. Other than the redacted information, these records do not contain information that is of a private or intimate nature. Thus, the custodian’s decision to release these documents is consistent with the FOIA.

22
Watkins et al., supra note 12, at 238–39.
23
Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”). 24 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
25
E.g., Ark. Att’y Gen. Op. 96-168.
26
Watkins et al., supra note 12, at 203–04.

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 6

5. Redactions of personnel records. The custodian has properly identified that some discrete
   pieces of information contained in the records are of a personal or intimate nature and have a greater than minimal privacy interest. 27 The redacted information is the former employees’ phone numbers, addresses, dates of birth, social security numbers, employee numbers, marital status, and information about dependents. The custodian has properly determined that disclosure of this information would be a clearly unwarranted invasion of privacy. So the custodian’s decision to redact this information is consistent with the FOIA.

But the custodian has also redacted references’ names and contact information, documents related to time off and requests for time off, and change-in-benefits records. This office has previously opined that disclosing references is not a clearly unwarranted invasion of privacy. 28 Similarly, this office has opined that releasing records of vacation time and sick leave is not a clearly unwarranted invasion of privacy. 29

Finally, records regarding employees changing their benefits are not of a personal or intimate nature that they would have more than a minimal privacy interest. Because the former employees’ privacy interests in this information do not outweigh the public’s interest in accessing it, that information should not be redacted.

6. Classification and disclosure of employee evaluations. These records are best classified as
   employee evaluations because they were created by the employer to evaluate the former employees and they detail the former employees’ performance or lack of performance on the job. The custodian’s decision to withhold the employee evaluations that did not result in suspension or termination of the former employees is consistent with the FOIA. Conversely, the custodian’s decision to release the employee evaluations that resulted in suspension or termination is also consistent with the FOIA. The four-part test for release of those employee-evaluation records appears to be met.

27
Id. § 25-19-105(b)(12). Some of the information would also be exempt as “personal contact information” under A.C.A. § 25-19-105(b)(13). 28 Ark. Att’y Gen. Op. 2015-016 (opining that “the sort of personnel records at issue here—i.e. standard employee-intake and documentation records (e.g. job description, job application, salary information, letters confirming job offers and start dates, resumes, and references)—must be disclosed under the FOIA.”) 29 This office has consistently opined that disclosing records of vacation time and sick leave is not a clearly unwarranted invasion of privacy. E.g., Ark. Att’y Gen. Ops. 2024-062, 2016-031, 2012-136. But if those records detail an employee’s illness or medical condition, releasing that information may be a clearly unwarranted invasion of privacy. E.g., Ark. Att’y Gen. Ops. 2024-062, 2016-031, 2012-136. If a custodian determines that disclosing information regarding an employee’s illness or medical condition would be a clearly unwarranted invasion of privacy, then the custodian should redact that information, while still disclosing the documents that “merely record the dates of the absence.” Ark. Att’y Gen. Op. 2024-062.

Andrew Thornton
City Attorney
Opinion No. 2024-097
Page 7

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General