When a city releases the personnel files of two former police officers, what can it redact and what must come out?
Subject
What categories of information in former police officers' personnel files Arkansas FOIA permits or requires redaction of, and how the four-part employee-evaluation test applies.
Plain-English summary
Andrew Thornton, City Attorney for Maumelle, asked the AG to bless the City's redaction strategy on FOIA-requested personnel files of two former Maumelle Police Department employees. The custodian planned to release with redactions to:
- phone numbers, addresses, dates of birth, social security numbers, employee numbers, marital status, dependents (proper);
- references' names and contact information;
- documents related to time off and requests for time off;
- change-in-benefits records.
The custodian also planned to withhold employee evaluations of the officers who were not suspended or terminated, and release the evaluations of officers who were.
AG Tim Griffin agreed in part and disagreed in part.
The agreed redactions: personal contact information (phone, address) is properly redacted under § 25-19-105(b)(13). Dates of birth, SSNs, employee numbers, marital status, and dependent information are properly redacted under the (b)(12) clearly-unwarranted-invasion-of-privacy test, because they are personal/intimate enough to give rise to greater-than-minimal privacy interest, and the public interest does not outweigh that interest.
The disagreed redactions: three categories that should NOT be redacted.
References. The AG cited Op. 2015-016 holding that "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." Disclosing references is not a clearly unwarranted invasion of privacy. References may not want to be named, but their names and contact information do not rise to the privacy threshold.
Time off and vacation requests. The AG cited a long line of opinions (2024-062, 2016-031, 2012-136) holding that disclosing records of vacation time and sick leave is not a clearly unwarranted invasion of privacy. With one caveat: if the leave records detail an employee's specific illness or medical condition, that medical information may be redacted but the dates of absence remain disclosable.
Change-in-benefits records. These are not of a personal or intimate nature giving rise to more than a minimal privacy interest. They show how an employee navigated benefit choices over time, which is a routine HR matter. They should be released without redaction.
The four-part evaluation test. For the officers who were not suspended or terminated, the first element fails, so the evaluations are properly withheld. For the officers who were suspended or terminated, the AG concluded the four-part test "appears to be met" and release is consistent with the FOIA.
What this means for you
If you are a city attorney or records custodian
Three concrete corrections to common practice based on this opinion.
First, do not redact references' names and contact information by default. Op. 2015-016 and 2024-097 are clear: references are part of the standard personnel record and must come out. The privacy interest of a reference (who wrote a letter on behalf of an employee) does not exceed the public interest. If a reference itself contains substantive evaluative content, that may be a separate analysis, but the name and contact info come out.
Second, do not redact vacation, sick leave, and time-off records. The AG has been consistent on this for over a decade. The only carve-out is the substantive medical detail within leave records (specific illness, treatment plan), which can be redacted while the dates of absence remain. Build that into your redaction templates.
Third, do not redact change-in-benefits records. They are routine HR records without a personal/intimate dimension that triggers privacy protection.
The proper redactions you should always make: phone numbers, addresses, personal email, SSNs, dates of birth, employee numbers, marital status, and dependent information. These are the floor.
If you are a journalist or FOIA requester
Personnel files of public employees, especially law enforcement officers, are richer than most custodians release on first pass. The AG opinion confirms that references, leave records, and benefits records should come out. If your initial production is light on these categories, push back with this opinion as authority.
For evaluation records, the four-part test is the gating analysis. If the employee was suspended or terminated, the records are likely subject to release; if not, they are likely withheld. For police officers in particular, the "compelling public interest" element typically resolves in favor of disclosure when the misconduct is on-duty or position-related.
If you are a former public employee whose records are being released
The proper redactions protect your personal contact information, SSN, date of birth, employee number, marital status, and dependent information. Beyond that, expect references, time-off records, and benefits records to come out.
If you have specific medical conditions that show up in your leave records, those medical details should be redacted. If your custodian misses that, point them to AG Op. 2024-062, which establishes the medical-detail carve-out.
If you are concerned about employee evaluations being released, the four-part test is your protection. Unless you were suspended or terminated, the evaluations stay confidential.
If you are a police department or law enforcement records administrator
The four-part test for evaluation records is critical for your work. Document each element when you decide to release: was the officer suspended or terminated? Is the discipline final? Did this record form a basis for the discipline? Is there a compelling public interest? For sworn law-enforcement officers, the fourth element is usually a yes when the misconduct involves on-duty or position-related conduct.
For the records of officers who were not disciplined to suspension or termination level, evaluations stay confidential, but the rest of their personnel files (with proper redactions) still come out.
If you are an HR director at a public agency
Train your records custodians on the three under-redacted categories: references, leave records, and benefits records. Many agencies over-redact out of caution. The AG has now confirmed (multiple times) that those categories are not exempt.
Standard HR documentation that is releasable: job titles, salary and payroll, change-of-status, pension and benefit records, sick leave and vacation, voluntary demotion requests, background investigations, and photographs. Op. 2024-097 explicitly lists these as personnel records that come out under proper Young v. Rice analysis.
Common questions
Q: Can a city redact reference letters in a personnel file release?
A: The reference's name and contact information come out. The substantive content of the reference may be analyzed separately depending on whether the reference contains evaluative material that pre-existed or post-dated employment.
Q: Can a city redact vacation time records?
A: No. Disclosing dates of vacation time and sick leave is not a clearly unwarranted invasion of privacy. The exception is specific medical or illness details within those records, which can be redacted while the dates remain.
Q: My evaluation records are in my file but I was never suspended or terminated. Are they public?
A: No. Evaluation records release only when all four elements of the (c)(1) test are met, and the first element (suspension or termination) is not.
Q: What if my evaluation contributed to my eventual suspension?
A: That is the "form a basis for" element. If the evaluation records actually drove the discipline decision, they come out. If they were independent of the discipline, they do not.
Q: I'm a former employee and my personnel file has personal information. What is protected?
A: Phone, address, personal email, SSN, date of birth, employee number, marital status, dependent information. These should be redacted in any release.
Q: What about my college transcripts?
A: A.C.A. § 25-19-105(b)(2) exempts school transcripts from disclosure. They should be redacted.
Q: What about commendation letters from supervisors?
A: This is the question Op. 2025-003 addresses. Commendation letters can be employee evaluations because they are "(1) created by the employer (2) to evaluate the employee (3) [and] detail the employee's performance on the job." Under that classification they would only be released if the four-part test is met. Custodians who classify commendations as personnel records may be wrong.
Background and statutory framework
Personnel records vs. evaluation records. The two categories are mutually exclusive. Personnel records are records pertaining to an employee that were not created to evaluate them. Evaluation records are created by the employer to evaluate the employee and detail performance or lack of performance on the job. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, is the leading classification case.
Personnel records release under Young v. Rice's two-step balancing. Step one: greater than minimal privacy interest? Step two: privacy interest outweighed by public interest?
Evaluation records release only when § 25-19-105(c)(1)'s four elements are met: suspension or termination; administrative finality; relevance ("formed a basis for"); compelling public interest.
The personal contact information carve-out at § 25-19-105(b)(13) protects home address, personal phone, personal email, and similar information of certain public employees. The carve-out is independent of the (b)(12) personnel records balancing.
The references rule. AG Op. 2015-016: standard employee-intake records, including references, must be disclosed under the FOIA. The privacy interest of a reference does not exceed the public interest.
The leave records rule. AG Ops. 2024-062, 2016-031, 2012-136: vacation and sick leave dates are releasable, with the substantive medical content of leave records subject to a separate medical-information redaction analysis.
The benefits records rule. Records of employees changing benefit elections are not of a personal or intimate nature giving rise to more than a minimal privacy interest. They are released.
The school transcripts exemption at § 25-19-105(b)(2) is a separate, specific exemption for educational records. It overrides the personnel-records analysis for transcripts.
Citations and references
Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions)
Cases:
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (approval of AG definition)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting disclosure)
Source
Original opinion text
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
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.
The first two elements appear to be met. The request was made to the City of Maumelle—a public
entity subject to the FOIA. And the records at issue appear to be public records. Because these
records are held by a public entity, they are presumed to be public records, although that
presumption is rebuttable. 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" and "employee evaluation or job performance
records." 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. 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.
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.
- 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." 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 tipped in favor of public
access," has two steps.
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. 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.
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. 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.
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. 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.
- 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. "This exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct."
If a document qualifies as an employee-evaluation record, the document cannot be released unless
all the following elements have been met:
- The employee was suspended or terminated;
- There has been a final administrative resolution of the suspension or termination
proceeding; - The records in question formed a basis for the decision made in that proceeding to
suspend or terminate the employee; and -
The public has a compelling interest in the disclosure of the records in question.
-
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. 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.
- 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. 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. Similarly, this
office has opined that releasing records of vacation time and sick leave is not a clearly unwarranted
invasion of privacy.
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.
- 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.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General