If the Arkansas Department of Corrections plans to release a current agent's personnel file under FOIA, is the supervisor-completed promotion recommendation a personnel record or an evaluation record, and is a college transcript releasable?

Subject

Whether the Arkansas Department of Corrections records custodian's classification and redaction plan for Agent Kris Moore's personnel file is consistent with the Arkansas FOIA.

Plain-English summary

Agent Kris Moore asked the AG to review the custodian's release plan for his personnel records. Most of the records were correctly classified as personnel records, but the AG flagged three problems.

The "Promotion Recommendation" is an evaluation record, not a personnel record. The custodian had classified it as a personnel record. The AG disagreed. The promotion application form requires supervisors to complete a portion. That makes it (1) a record created at the behest of the employer, (2) that evaluates the employee, (3) by detailing the employee's job performance. That is the Thomas v. Hall test for an evaluation record. AGOp. 2021-091 had previously held that supervisor-completed promotion recommendations are job-performance records.

Because Agent Moore had not been suspended or terminated, the four-part test for releasing evaluation records fails on prong 1. The Promotion Recommendation must be withheld.

The college transcript should be redacted. A copy of the agent's transcript was in the file the custodian planned to release. The AG cited prior opinions (2017-023, 2016-025, 2009-032) holding that college and school transcripts are exempt from disclosure. So this record is also being released improperly.

Two pieces of personnel-record content need additional redaction. First, part of the text on page 8, line 26 of the document titled "Law Enforcement Redacted" must be redacted, because it contains marital-status / family-life information that the AG has consistently treated as falling under the "clearly unwarranted invasion of personal privacy" rule. Second, an unspecified piece of nonexempt info may have been improperly redacted: the "position number." If it's the job position number, it's disclosable. If it's the employee personnel number, it's exempt under § 25-19-105(b)(11).

The custodian's existing redactions were proper for: social security number, personal contact information, date of birth, family/marital information, insurance information, banking and financial information, and driver's license number.

What this means for you

Records custodians at Arkansas state agencies

Three lessons from this opinion.

First, the supervisor-completion test is your tool for distinguishing personnel records from evaluation records when the employee participates in completing a form. If a form has both an employee-completed section and a supervisor-completed section, and the supervisor's part is evaluative, the whole form is likely an evaluation record. AGOp. 2021-091 already established this for promotion recommendations. Apply the same logic to performance improvement plans, multi-rater feedback, peer reviews, and similar documents.

Second, school and college transcripts are categorically exempt under the AG's settled view. Don't release them even though they look like neutral biographical data. The reasoning combines privacy interest in academic records with FERPA-type concerns at the federal level.

Third, the "position number" ambiguity is recurring across the AG's recent opinions. Build a documented practice: when you redact a number, label it as either "job position number" (disclosable) or "employee personnel number" (exempt under § 25-19-105(b)(11)) so the AG and any reviewing court can validate the redaction without guessing.

State employees who are subjects of FOIA requests

Promotion recommendations completed by your supervisor are likely to stay private until/unless you face suspension or termination. That's because they're evaluation records, and the four-part test starts with discipline. So even though the recommendation is sensitive (and possibly important to your career), the FOIA system protects it from outside requesters.

Your college transcript is exempt. Even though it's in your personnel file, it doesn't get released under FOIA.

If you ever do face discipline, those promotion recommendations could become reachable through the four-part test if they "formed a basis" for the discipline. That's an unusual scenario, but worth knowing.

HR staff drafting forms

If you want a personnel record (open to release with redactions), don't include a supervisor evaluation section in the form. If you want an evaluation record (harder to release), include the supervisor section. The form's structure determines its FOIA classification.

FOIA requesters

If a custodian withholds a promotion recommendation citing this opinion, you can't fight that without first showing the employee was suspended or terminated and the recommendation formed a basis. Different fight if you want comprehensive records on someone facing discipline; the four-part test opens up if the discipline-and-finality elements are met.

Common questions

Q: My supervisor wrote up a promotion recommendation for me. Can the public see it?

Probably not, as long as you're not facing suspension or termination. The AG classifies supervisor-completed promotion recommendations as evaluation records. Evaluation records can only be released when the four-part test is met (suspension/termination, finality, relevance, compelling public interest). A current employee in good standing satisfies none of that.

Q: Why is my college transcript exempt from FOIA?

The AG has consistently held school transcripts are exempt under the personnel-record privacy framework. The privacy interest in academic records is treated as substantial enough to overcome the public's interest in inspecting them. AGOps. 2017-023, 2016-025, 2009-032 are the lead opinions.

Q: How do I know if my "position number" is the protected kind or the public kind?

If the number is your specific job position (a row in the agency's organizational table or a budgeted line), it's the public kind. If the number is your personal employee identifier used for computer access or HR system login, it's the protected kind. They look similar on paper, but they serve different functions. Your HR or IT department should know which is which.

Q: What's the privacy basis for redacting marital-status and family-life information?

Section 25-19-105(b)(12) (clearly unwarranted invasion of personal privacy) read with the AG's settled interpretation that intimate-life information (marital status, paternity, medical conditions, family relationships) is the kind of "intimate detail" Young v. Rice was talking about. AGOps. 2021-090 and 2015-003 are the relevant opinions on marital-status redaction specifically.

Q: Why didn't the AG just release the promotion recommendation since it might benefit the agent's reputation?

The disclosure analysis is objective, not subject-friendly. The custodian doesn't get to weigh whether the subject of the records would benefit or be harmed by release. The four-part test is the test, applied identically regardless of whether release would help or hurt the employee.

Background and statutory framework

The Thomas v. Hall classification framework distinguishes evaluation records from personnel records. An evaluation record requires three elements: (1) created by or at the behest of the employer; (2) to evaluate the employee; (3) detailing performance or lack of performance on the job. A document that meets all three is an evaluation record subject to the harder four-part release test.

The promotion recommendation analysis here is rooted in AGOp. 2021-091, which held that promotion recommendations created at the employer's request are job-performance records. The AG's reasoning: the supervisor's section evaluates the employee, by definition. The employee may have started the form, but once the supervisor adds an evaluation, the document tips into evaluation-record territory.

The transcript exemption draws from AGOps. 2017-023, 2016-025, and 2009-032. These opinions all conclude that academic records have a privacy interest substantial enough to require redaction even when in a personnel file.

Marital-status and family-life redaction is addressed in AGOps. 2021-090 and 2015-003 (and many earlier opinions), grounded in the "clearly unwarranted invasion of personal privacy" standard at A.C.A. § 25-19-105(b)(12).

The position-number distinction (job position number = disclosable; employee personnel number = exempt under § 25-19-105(b)(11)) traces to AGOp. 2021-018 and other opinions discussing the computer-security carve-out at § 25-19-105(b)(11) for "personal identification numbers" used for security functions.

The general redaction-list categories (personal contact info, dates of birth, social security numbers, driver's license numbers, banking and financial detail, dependents, insurance, tax withholdings, net pay) are the same recurring set the AG applies in almost every personnel-record opinion.

Citations

• A.C.A. § 25-19-103(7)(A) (definition of public record)
• A.C.A. § 25-19-105(b)(11) (computer-security/personal identification numbers exemption)
• A.C.A. § 25-19-105(b)(12) (personnel records / clearly unwarranted invasion of personal privacy)
• A.C.A. § 25-19-105(b)(13) (personal contact information of public employees)
• A.C.A. § 25-19-105(c)(1) (four-part test for evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)
• A.C.A. § 25-19-105(f) (redaction of exempt portions)
• Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
• Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)

Source

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

Original opinion text

101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-044
June 10, 2025

Agent Kris Moore
Arkansas Department of Corrections
805 Garrison Avenue
Fort Smith, Arkansas 72901

Dear Agent Moore:

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). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

According to correspondence our office received from the custodian, the Arkansas Department of Corrections received a FOIA request for your "personnel records." The custodian determined that the records were subject to release, with certain redactions. You have requested that I review the custodian's decision to determine whether it is consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision to release the records as redacted is partially consistent with the FOIA. Most of the records the custodian intends to release are properly classified as personnel records, and the custodian has correctly determined that they are subject to release with redactions. But I have identified several additional pieces of information that must be redacted before the records can be released, as well as one piece of information that may be improperly redacted. Additionally, I believe that the records recommending you for promotion have been incorrectly classified as personnel records. As explained below, these records qualify as job-performance records, so they must be withheld from release because they do not meet the test for disclosure.

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, which is 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. Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the documents' disclosure.

For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "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. Thus, the custodian must first decide whether a record meets the definition of either a "personnel record" or an "employee-evaluation or job-performance record" and then apply the appropriate test for that record to determine whether the record should be released 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." 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 de minimis privacy interest. If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis 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 interest. 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 pieces of information that must be redacted, such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses); employee personnel numbers or identification codes; marital status of public employees; information about children and dependents; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; net pay; banking information; and other financial "records that would divulge intimate financial detail."

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.

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).

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.

4. Classification of the records. Most of the records you have submitted for my review are properly classified as personnel records. But it is my opinion that the "Promotion Recommendation" completed by your supervisor has been improperly classified as a personnel record. This Office has previously held that promotion recommendations should be classified as the "job-performance records of the employees recommended for promotion" if the recommendations were requested by the employer. In this case, the promotion application requires supervisors to complete a portion of the form. Thus, the form recommending your promotion meets the definition of an employee-evaluation record because (1) it is created at the behest of your employer, (2) it evaluates you, and (3) it details your performance on the job. As a job-performance record, this form cannot be released because you have not been suspended or terminated, so the first prong of the four-part test for employee-evaluation records has not been met. Accordingly, the custodian's decision to release this record is inconsistent with the FOIA.

5. Redactions to the records. The custodian has properly redacted certain discrete pieces of information that are exempt from release, including your social security number, personal contact information, date of birth, information regarding family and marital status, insurance information, banking and financial information, and driver's license number. However, I have identified two additional pieces of information that must be redacted before the records can be released. First, part of the text appearing on page 8, line 26 of the document titled, "Law Enforcement Redacted," must be redacted. Second, a copy of your transcript appears among the records the custodian intends to release. This Office has consistently opined that college transcripts and school transcripts are exempt from disclosure. Thus, it is my opinion that the custodian's decision to release this record is inconsistent with the FOIA.

Finally, I have identified an instance in which nonexempt information may have been improperly redacted from the records. The custodian has redacted your "position number" from the records, but I am uncertain as to what this number refers. If this number refers to the job position number, that information is disclosable. But if it refers to your employee personnel number, that information is not subject to release.

Senior Assistant Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General