If a Rogers police officer's file gets requested under FOIA after a suspension, what gets released and what gets redacted, and does it matter if the requester wants the file just to harass the officer?

Subject

Whether the City of Rogers custodian correctly classified, withheld, released, and redacted records concerning Officer Guadalupe Rodriguez under the Arkansas FOIA.

Plain-English summary

The City of Rogers received a request for the name of an officer suspended between February and April 2025 and documents related to the internal review, incident, and suspension. Officer Guadalupe Rodriguez asked the Attorney General to review the custodian's planned response. She also said she believed the requester intended to harass her. A footnote says the requester's intent and motives are generally irrelevant to whether public records must be disclosed.

The AG agreed that Rodriguez's employment-application background forms were personnel records and that the employer-created records evaluating her job performance were evaluation records. He found it consistent with FOIA to withhold evaluations that did not lead to suspension or termination. He also approved disclosure of the evaluation records tied to her termination because the four required conditions appeared to be met: termination, administrative finality, records forming a basis for the decision, and compelling public interest. He noted the public trust placed in law-enforcement officers and the interest in records reflecting violations of office policy.

The custodian properly redacted Rodriguez's driver's license number. The AG said the custodian also needed to redact her employee number, date of birth, home address, and cell phone number. Because he received only redacted copies, he could not fully assess whether other removed material on the application forms was private or intimate enough to warrant redaction.

What this means for you

Records custodians

Classify each record before applying a disclosure test. For an employee evaluation, final discipline alone is insufficient. The record must have formed a basis for the suspension or termination, and a compelling public interest must support disclosure. Check each released page for the identifiers this opinion says should be redacted, and provide unredacted copies when asking the AG to review proposed redactions.

Public employees whose files are requested

Rodriguez's concern about the requester's motive did not change the AG's FOIA analysis. The opinion addresses disclosure by record type and statutory conditions, while protecting specified personal identifiers. It does not say every document in an employee's file becomes public after discipline.

People requesting records

The AG found disclosure of the evaluation records connected with this final termination consistent with FOIA because all four statutory conditions appeared to be met. He found withholding other evaluation records consistent with FOIA where they did not lead to suspension or termination. His review was specific to the records and information provided.

Common questions

Does a final termination alone make evaluation records releasable?

No. A.C.A. § 25-19-105(c)(1) also requires that the records formed a basis for the decision and that the public have a compelling interest in disclosure. The AG said those conditions appeared to be met for the evaluation records tied to Rodriguez's termination.

Which identifiers did the AG address?

He approved redacting the driver's license number and said the employee number, date of birth, home address, and cell phone number also needed to be redacted. He did not have unredacted copies to assess every other redaction.

Did the officer's claim of harassment bar disclosure?

No. The opinion's footnote says a requester's intent and motives are generally irrelevant to whether public records must be disclosed under FOIA.

Were all evaluation records released?

No. The AG approved withholding evaluations that did not lead to Rodriguez's suspension or termination, while finding release of those connected to her final termination consistent with FOIA.

Background and statutory framework

The opinion distinguishes personnel records from records the employer created to evaluate job performance. Young v. Rice supplies a privacy balance for personnel records, while evaluation records have the separate four-condition test under A.C.A. § 25-19-105(c)(1). The official PDF also discusses factors that may bear on compelling public interest, including the nature of the infraction, public controversy, and the employee's position. The AG then applies the test to the records provided for Rodriguez.

Currency note

This opinion was issued in 2025. Check current Arkansas FOIA law and the exact records before using its conclusions for another request.

Citations

• A.C.A. § 25-19-103(7)(A) (public records)
• A.C.A. § 25-19-105(b)(11), (b)(12), (b)(13) (exemptions and personnel records)
• A.C.A. § 25-19-105(c)(1) (evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG review request)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

Opinion No. 2025-034

May 19, 2025

Guadalupe Rodriguez
Via email only: [email protected]

Dear Officer Rodriguez:

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 the records, is based on A.C.A.
§ 25-19-105(c)(3)(B)(i).

You indicate that the City of Rogers received a FOIA request for “the name of the officer suspended during the months of February through April 2025[,] along with all documents relating to the internal review, original incident report, and suspension.” The records custodian has classified most of the records as employee evaluations. The custodian has redacted the employee evaluations that did not result in suspension or termination, and the custodian intends to release the employee evaluations that resulted in suspension or termination. The custodian has classified the remaining records as personnel records. The custodian intends to redact your driver’s license number from the records.

The custodian has provided me with a redacted copy of the records he intends to release but not an unredacted copy. You object to the release of the records because you believe the requestor is seeking them to harass you. 1 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 your driver’s license number. But the custodian’s decision not to redact your employee number, date of birth, address, and cell phone number is 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 your suspension or termination is consistent with the FOIA. Similarly, the custodian’s decision to disclose the employee

1
The objection concerning why the requestor is making a FOIA request or what the requestor intends to do with the requested documents is not a sufficient basis for the custodian to withhold the records from disclosure. 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. 2025-023, 2023-051, 2014-094. Guadalupe Rodriguez Opinion No. 2025-034 Page 2

evaluations that did result in suspension or termination is 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. 2

The first two elements appear to be met. The request was made to the City of Rogers—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 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

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 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.
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Opinion No. 2025-034
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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 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

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, 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.
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.
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Opinion No. 2025-034
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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:

[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

18
A.C.A. § 25-19-105(f).
19
See id. § 25-19-105(b)(13).
20
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis, 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. 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.
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Opinion No. 2025-034
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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 he considers 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 only personnel records the custodian intends to release are background forms you completed to apply for employment with the police department. The custodian has redacted a significant portion of these forms, so I cannot determine if the redacted information is of a private or intimate nature such that an employee’s privacy interest outweighs the public’s interest in the record. Otherwise, the custodian’s decision to release these documents is consistent with the FOIA.

5. Classification and disclosure of employee evaluations. These records are best classified as
   employee evaluations because they were created by the employer to evaluate you, and they detail your 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 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: (1) you were terminated; (2) that termination is administratively final; (3) the records recount the reasons for the termination; and (4) because

23
Watkins et al., supra note 133, 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 133, at 203–04.
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Opinion No. 2025-034
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law-enforcement officers are invested with a significant public trust, there is usually a compelling public interest in records that reflect violations of office policy. 28

6. Redactions. 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. 29 The redacted information is your driver’s license number. The custodian has properly determined that disclosure of this information would be a clearly unwarranted invasion of privacy. 30 So the custodian’s decision to redact that information is consistent with the FOIA.

But the custodian has failed to redact your employee number, date of birth, home address, and cell phone number. This information is either your personal contact information 31 or information that is of a personal or intimate nature so that it has a greater than minimal privacy interest. 32 The custodian’s decision not to redact this information is inconsistent with the FOIA.

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

Sincerely,

TIM GRIFFIN
Attorney General

28
Ark. Att’y Gen. Op. 2024-021 (“As this office has consistently opined, law-enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect violations of office policy”). 29 A.C.A. § 25-19-105(b)(12).
30
E.g., Ark. Att’y Gen. Op. 2007-025.
31
Id. § 25-19-105(b)(13).
32
Id. § 25-19-105(b)(12).