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' planned release of one employee's employment file used the correct redactions and classified supervisors' commendation letters properly.

Plain-English summary

The employee objected to the custodian's proposed release of her employment file and said the requester was using FOIA to harass her. The AG reviewed the redacted records supplied to him. He approved the general classification of the personnel records and some redactions, but found four errors:

1. Some instances of the employee's address, date of birth, employee number, and marital status remained unredacted and should have been removed.
2. The custodian redacted references' names and contact information, which the AG said should be disclosed.
3. The custodian planned to release college transcripts, which the AG said are exempt from disclosure under A.C.A. § 25-19-105(b)(2).
4. The custodian treated supervisors' commendation letters as releasable personnel records. The AG classified them as employee evaluations. Because the employee had not been suspended or terminated, the letters could not be released under the evaluation-record test.

Footnote 1 says the FOIA requester's intent and motives are generally irrelevant when deciding whether public records must be disclosed. The opinion does not investigate the employee's allegation of harassment or prescribe a separate remedy for it.

What this means for you

Records custodians

Check every instance of protected information in the proposed release. The AG found missed instances of details the custodian had redacted elsewhere. Separate school transcripts and supervisors' commendation letters from ordinary personnel records; this opinion assigns those documents different release rules. The AG reviewed a redacted file and expressly declined to classify any documents he had not been given.

Employees reviewing a proposed disclosure

The AG approved redacting the phone number, address, date of birth, Social Security number, employee number, marital status, and dependent information in this file, and identified additional unredacted instances of some details. He also said the college transcripts and commendation letters should not be released on these facts. Footnote 1 says the requester's motives generally do not change the FOIA disclosure decision.

FOIA requesters

The AG found that references' names and contact information should not have been redacted. He distinguished those records from college transcripts and commendation letters, which could not be released here under the exemptions he applied.

Common questions

Are commendation letters always ordinary personnel records?

No. The AG classified the supervisor letters in this file as employee evaluations because they were created by the employer to assess the employee and detailed her job performance. Their release would require the four-part evaluation test; the employee had not been suspended or terminated.

Can a custodian release an employee's college transcripts?

The AG said no in this case. He cited A.C.A. § 25-19-105(b)(2) and earlier opinions treating school and college transcripts as exempt.

Do references' names and contact details stay redacted?

The AG found those redactions inconsistent with the FOIA and cited an earlier opinion on disclosure of standard employee-intake records, including references.

Did the AG decide whether the requester was harassing the employee?

No. The employee raised that allegation, and footnote 1 states that a requester's intent and motives are generally irrelevant to whether public records must be disclosed.

Did the opinion say the custodian refused to release leave records?

No. It lists sick leave and vacation time among documents that can appear in a personnel file but makes no finding that the custodian withheld leave records here.

Background and statutory framework

The opinion separates personnel records from employee-evaluation or job-performance records. Personnel records are assessed under the privacy balance described in Young v. Rice. Evaluations are created by or for the employer to evaluate job performance and may be released only if all four conditions in § 25-19-105(c)(1) are met: suspension or termination, final administrative resolution, a record that formed a basis for that decision, and a compelling public interest.

For the file reviewed, the AG found that the custodian missed some personal redactions, wrongly hid references' details, and planned to release two exempt types of record. He lacked an unredacted copy of the whole file and limited his classification opinion to the records supplied.

Currency note

This opinion was issued in 2025. Check current Arkansas FOIA law and the records themselves before deciding what to release.

Citations

• A.C.A. § 25-19-105(b)(2) (transcripts)
• A.C.A. § 25-19-105(b)(12), (b)(13) (personnel privacy and contact information)
• A.C.A. § 25-19-105(c)(1) (employee evaluations)
• Young v. Rice, 308 Ark. 593 (1992) (privacy balance)
• Thomas v. Hall, 2012 Ark. 66 (evaluation-record definition)
• Ark. Att’y Gen. Ops. 2024-067, 2014-094, 2006-118 (requester motive, cited in footnote 1)

Source

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

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,1 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:

1
This office has consistently opined that, under the FOIA, the requester’s intent and motives are generally irrelevant when determining whether public records must be disclosed. E.g., Ark. Att'y Gen. Ops. 2024-067, 2014-094, 2006-118.

Melody L. Case
Investigator/CVCA Examiner
Opinion No. 2025-003
Page 2

• 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.2

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.3 And the records at issue appear to be public records.4 Because these records are held by a public entity, they are presumed to be public records,5 although that presumption is rebuttable.6 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”7 and “employee evaluation or job performance records.”8 Personnel records are records that pertain to an individual employee that were not

2
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
3
E.g., Ark. Att’y Gen. Ops. 2024-095, 2023-120, 2020-028.
4
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). 5 Id.
6
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)). 7 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.”) 8 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

Melody L. Case
Investigator/CVCA Examiner
Opinion No. 2025-003
Page 3

created by or at the behest of the employer to evaluate the employee.9 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.10

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.”11 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.12 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.13

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.14 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.15

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

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.”) 9 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
10
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, at 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). 11 A.C.A. § 25-19-105(b)(12).
12
308 Ark. 593, 826 S.W.2d 252 (1992).
13
John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
14
Young, 308 Ark. at 598, 826 S.W.2d at 255.
15
Id.

Melody L. Case
Investigator/CVCA Examiner
Opinion No. 2025-003
Page 4

public’s interests.16 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.17

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.18 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.19

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.20 “This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.”21

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).22

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:

16
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
17
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 13, at 207.
18
A.C.A. § 25-19-105(f).
19
See id. § 25-19-105(b)(13).
20
Thomas, 2012 Ark. 66, at 8–9, 399 S.W.3d at 392; see also Davis, 2019 Ark. App. 466, at 7–8, 572 S.W.3d at 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. 21 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
22
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

Melody L. Case
Investigator/CVCA Examiner
Opinion No. 2025-003
Page 5

[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.23

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,24 which is always a question of fact that must be determined, in the first instance, by the custodian after considering all the relevant information.25 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.26

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.27 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.

5. Redactions of personnel records. The custodian has properly identified that some discrete
   pieces of information contained in the records are personal contact information28 or of a personal

23
Watkins et al., supra note 13, at 238–39.
24
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”). 25 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
26
E.g., Ark. Att’y Gen. Op. 96-168.
27
Watkins et al., supra note 13, at 203–04.
28
A.C.A. § 25-19-105(b)(13).

Melody L. Case
Investigator/CVCA Examiner
Opinion No. 2025-003
Page 6

or intimate nature and have a greater than minimal privacy interest.29 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.30 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).31 Thus, the custodian’s decision to release your college transcripts is inconsistent with the FOIA.

6. 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

29
Id. § 25-19-105(b)(12).
30
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.”) 31 Ark. Att’y Gen. Ops. 2016-124, 94-319, 93-076.