What can the Arkansas Department of Corrections redact from a current employee's personnel file in response to a FOIA request, and are commendation letters from supervisors public?
Subject
Whether the Arkansas Department of Corrections custodian's redaction strategy on Investigator Melody Case's personnel file is consistent with FOIA, including how to classify commendation letters and college transcripts.
Plain-English summary
DOC Investigator Melody Case received notice that someone had filed a FOIA request for her employment file. The custodian planned to release the records as personnel records with redactions to some instances of her phone number, address, date of birth, SSN, employee number, marital status, and dependent information. The custodian also redacted references' names and contact information. The custodian planned to release Case's college transcripts and commendation letters from her supervisors.
Case objected, partly on the theory that the requester was using FOIA to harass her. AG Tim Griffin's office addressed both the substance and the harassment theory.
On harassment: irrelevant. The AG cited a long line of opinions holding that the requester's intent and motives are not part of the FOIA analysis. The records are public if they are public; the requester's reasons do not change that. Case's recourse for actual harassment is workplace and legal channels, not FOIA-based.
On the substance, the AG identified four ways the custodian's plan was inconsistent with FOIA.
First, missing redactions. The custodian properly redacted most instances of address, DOB, employee number, and marital status, but missed redactions in places. The custodian must catch all instances. The properly redacted categories should be uniformly redacted across the file.
Second, references' names and contact information were redacted but should not have been. Op. 2015-016 holds that references are part of standard personnel records and must come out. The reference's privacy interest does not exceed the public interest.
Third, college transcripts were planned for release but should not be. A.C.A. § 25-19-105(b)(2) specifically exempts school transcripts from disclosure. The AG cited Op. 2016-124, 94-319, 93-076 for this proposition.
Fourth, commendation letters were classified as personnel records. The AG disagreed. Commendations are 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." Once classified as evaluations, they release only when the four-part test is met. Case has not been suspended or terminated, so the commendations should NOT be released. The custodian's plan to release them is inconsistent with FOIA.
The opinion is a useful reminder that classification matters as much as redaction. A document released under the wrong category produces a wrong result. Commendations being lumped in with personnel records is a common error, and this opinion calls it out directly.
What this means for you
If you are a public employee facing a FOIA request for your file
The personal categories (phone, address, DOB, SSN, employee number, marital status, dependents) get redacted. The custodian must catch all instances. If you see them planning a release, point out any unredacted occurrences in your written objection.
References stay in the released file. The custodian cannot redact them. If you have references whose names you do not want released, that is a workplace privacy concern, but not a FOIA exemption.
College transcripts stay out under § 25-19-105(b)(2). If your file contains them, they must be redacted.
Commendation letters stay confidential unless you have been suspended or terminated. Many custodians get this wrong by classifying commendations as personnel records. They are employee evaluations and require the four-part test before release.
If the requester is using the request to harass you, that does not change the FOIA analysis. Address harassment through HR, the Arkansas Civil Rights Act, restraining orders if applicable, or criminal complaints. Do not expect the FOIA process itself to provide a harassment remedy.
If you are a records custodian
This opinion is a checklist of common mistakes. Run through it for every personnel-file release.
Classification check: are the documents personnel records or evaluation records? Commendations from supervisors are evaluations. Disciplinary write-ups are evaluations. Performance reviews are evaluations. Records about the employee that were not created to evaluate them (job titles, salary records, leave records, benefit records) are personnel records.
Redaction check: phone, address, DOB, SSN, employee number, marital status, dependents, all instances, not just some. References stay in. Leave records (dates) stay in. College transcripts go out (§ 25-19-105(b)(2)).
Four-part test check (for evaluation records): suspension or termination? Final? Formed a basis? Compelling public interest? All four required for release.
If you are an HR director
Train custodians on the commendation-letter classification. This is one of the most common misclassifications. Commendations come from supervisors and detail the employee's positive performance, which fits the evaluation-record definition cleanly. Without a four-part test win (which means without a suspension or termination), commendations stay confidential.
Also train on the references rule. Many HR shops over-redact references out of caution. The AG has been clear for years: references come out as part of routine personnel records.
If you are a journalist or FOIA requester
This opinion confirms that personnel-file releases come out richer than custodians often acknowledge. References, leave records, and benefits records should be in your initial production. If they are not, push back.
Commendation letters, however, will likely not come out unless the employee was suspended or terminated. That is correct under the FOIA. Your access to positive evaluations of public employees is limited unless the employee has faced major discipline.
College transcripts are exempt. Do not push for them; § 25-19-105(b)(2) is clear.
If you are an investigator at DOC or another sensitive law enforcement role
Your personnel file's substantive content (job titles, salary, hire date, position) will come out in response to FOIA requests. Personal contact information stays confidential. Commendations stay confidential unless you have been disciplined. References come out.
The harassment theory does not protect against FOIA. Document harassment separately through DOC HR and outside legal channels. The FOIA framework treats requester motive as irrelevant.
Common questions
Q: Are commendation letters from my supervisor public records?
A: No, unless you have been suspended or terminated and the four-part test is met. Commendations are employee evaluations, not personnel records, even though they are positive.
Q: Can the custodian redact references' names and contact info?
A: No. References are part of the standard personnel record and must be released. The privacy interest does not exceed the public interest.
Q: Can the custodian release my college transcripts?
A: No. A.C.A. § 25-19-105(b)(2) specifically exempts school transcripts from disclosure.
Q: What if the requester is harassing me?
A: The requester's motive is irrelevant under Arkansas FOIA. Address harassment through HR, the Arkansas Civil Rights Act, or restraining orders. The FOIA process does not provide a harassment-based exemption.
Q: Some of my address and date of birth showed up unredacted in the planned release. Can I demand a re-redaction?
A: Yes. The custodian must redact all instances of personal contact and identifying information. Point out missed instances in your written objection or request for AG review.
Q: What about my marital status and dependents?
A: Properly redacted as a clearly unwarranted invasion of privacy under § 25-19-105(b)(12).
Q: Are my benefits-change records public?
A: Yes, per AG Op. 2024-097. They are not of a personal/intimate nature giving rise to greater than minimal privacy interest. They come out without redaction.
Q: My employee number is in many places in the file. Does it have to be redacted in all of them?
A: Yes. The custodian must redact uniformly across the file.
Background and statutory framework
The personnel records vs. evaluation records distinction continues to be the heart of FOIA analysis on employment files. Personnel records release under Young v. Rice's two-step balancing. Evaluation records release only when § 25-19-105(c)(1)'s four elements are met.
The classification of specific document types:
- Termination letters with reasons: evaluation records (Op. 2024-041, 2014-052, 2013-155, 2001-276).
- Demotion letters with reasons: evaluation records (Op. 2010-126, 2005-112, 2005-094, 2001-203).
- Internal investigation reports: evaluation records (Op. 2024-018, 2015-077, 2005-164, 98-173).
- Commendation letters: evaluation records (this Op. 2025-003 confirms).
- Standard personnel records: job titles, salary, hire date, change-of-status, leave records, benefits records (Op. 2024-097, Watkins's treatise).
The redaction floor: phone, address, personal email (§ 25-19-105(b)(13)); SSN, DOB, employee number, marital status, dependent info (Young v. Rice analysis); college transcripts (§ 25-19-105(b)(2)).
References as releasable: Op. 2015-016 establishes references are part of standard personnel records.
Leave records as releasable: Op. 2024-062, 2016-031, 2012-136. Substantive medical detail within leave records can be redacted; dates of absence stay.
Requester-motive irrelevance: Op. 2024-067, 2014-094, 2006-118.
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. 2025-003
January 9, 2025
Melody L. Case
Investigator/CVCA Examiner
Internal Affairs Division
Arkansas Department of Corrections
Shared Services
Via email only: [email protected]
Dear Ms. Case:
You have requested an opinion from this office regarding the Arkansas Freedom of Information
Act (FOIA). Your request, which is made as the subject of responsive personnel and evaluation
records, is based on A.C.A. § 25-19-105(c)(3)(B)(i).
You indicate that the Arkansas Department of Corrections received a FOIA request for your
employment file. The records custodian has provided me with the redacted records she intends to
release. The custodian has classified these records as personnel records, and she intends to release
those records with redactions of some instances of your phone number, address, date of birth,
social security number, employee number, marital status, and information about dependents. The
custodian has also redacted references' names and contact information. Further, the custodian
intends to release your college transcripts and commendation letters by your supervisors.
You state that the requester is using the FOIA request to harass you, and you 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 some instances of your phone number, address, date of birth, social security number,
employee number, marital status, and information about dependents. But the custodian's decisions
are inconsistent with the FOIA in four ways:
- Some instances of your address, date of birth, employee number, and marital status were
not redacted but should have been; - References' names and contact information were redacted but should not have been;
- Your college transcripts should not be released under the FOIA; and
- Commendation letters were classified as personnel records to be released but
commendation letters are employee evaluations that should not be released.
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 Arkansas Department of
Corrections—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 the documents—except the commendation letters—as personnel
records because they relate to you but they were not created by the employer to evaluate you.
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 personal contact information or of a personal
or intimate nature and have a greater than minimal privacy interest. The redacted information is
your phone number, address, date of birth, social security number, employee number, 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 failed to redact other
instances of your address, date of birth, employee number, and marital status. These missing
redactions are inconsistent with the FOIA.
The custodian has also redacted references' names and contact information. This office has
previously opined that disclosing references is not a clearly unwarranted invasion of privacy.
These redactions are inconsistent with the FOIA.
On the other hand, the custodian intends to release your college transcripts. This office has long
opined that school and college transcripts are exempt from disclosure under A.C.A. §
25-19-105(b)(2). Thus, the custodian's decision to release your college transcripts is inconsistent
with the FOIA.
- Misclassification and disclosure of employee evaluations. Because I was not provided an
unredacted copy of your employment file, I cannot opine regarding the custodian's classification
of any documents I have not reviewed. But the redacted employment file I reviewed included
several letters and notes of commendation by your supervisors. Commendations are 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.
Since these commendations are employee evaluations, they must pass the four-part test discussed
above to be disclosed. In this case, you have not been suspended or terminated, so the employee
evaluations cannot be released. And the custodian's decision to disclose them is inconsistent with
the FOIA.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General