When a sheriff's deputy was investigated for two separate complaints, suspended on one, and exonerated on the other, what gets released under FOIA?

Plain-English summary

Garland County planned to release two sets of records concerning Captain Joel Ware's 2023 and 2024 suspensions. The Attorney General found several classification and redaction errors. For 2023, the Employee Corrective Action form was a releasable personnel record, while the suspension notice stated the reasons for discipline and was an employee evaluation record. The Attorney General found that all four conditions for releasing that notice appeared to be met, including a compelling public interest in this record.

The 2024 set contained 96 documents. Many were personnel records rather than evaluations. A different employee's resignation letter was a personnel record for both employees, and that employee's address, phone number, and email address had to be redacted. Ware's birth date on a polygraph report also required redaction. Evaluation material relating to a claim from which Ware was exonerated should be redacted to the extent possible because it did not form a basis for his suspension. Information about the sustained claim should be released because the four-part test appeared to be met.

The opinion does not presume compelling public interest whenever an officer is involved. It describes factors for a fact-specific determination and finds the condition satisfied for the records at issue.

What this means for you

If you review police personnel files for release

Classify each document, including records about more than one employee. Apply the personnel-record privacy test to administrative records and the four-part test to employer-created evaluations. For mixed allegations, separate the sustained claim from the exonerated one; the latter did not support the suspension here. Check each record for private contact information and birth dates.

If you are the officer named in the file

This opinion supports redacting information about an exonerated claim from evaluation records where it did not form the basis for suspension. It also allows release of the sustained-claim material after the Attorney General found the statutory conditions appeared to be met.

If you requested the file

The custodian may release the 2023 corrective-action form, the suspension notice, and appropriate 2024 material while redacting specific private information and the unrelated exonerated-claim material. An entire 96-document set cannot be treated as one kind of record merely because it was stored with an investigation.

Common questions

Is compelling public interest presumed for police records?
No. The opinion explains that the custodian must consider the nature of the infraction, related public controversy, and the employee's position. It finds compelling interest for the particular suspension notice and sustained-claim material here.

Why redact an exonerated claim?
Evaluation records must have formed a basis for suspension or termination to be released. The exonerated claim did not form a basis for Ware's suspension.

Was the other employee's resignation letter withheld entirely?
No. The opinion treats it as a releasable personnel record but requires redaction of the other employee's address, telephone number, and email address.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) governs personnel-record privacy. A.C.A. § 25-19-105(c)(1) permits release of evaluation records only after suspension or termination, final administrative resolution, relevance to the decision, and compelling public interest. A letter giving the grounds for suspension can be an evaluation record; an administrative corrective-action form can be a personnel record.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2025-060; full PDF text replaces abbreviated index text).

Original opinion text

Opinion No. 2025-060

July 22, 2025

Captain Joel Ware
Garland County Sheriff’s Department
Via email only: [email protected]

Dear Captain Ware:

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 records custodian, Garland County received a FOIA request for your “employee file … with complaints filed for or against [you].” The custodian has provided me with an unredacted copy of two sets of records he intends to release. One set relates to a 2023 suspension from the Garland County Sheriff’s Department. The second set concerns a 2024 suspension from the department. The custodian has classified both sets of records as employee evaluations. You object to the release of these records, and you ask if the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, some of the custodian’s decisions are inconsistent with the FOIA. Specifically, several of the records are better classified as personnel records, and employees’ personal contact information and date of birth and any information in the 2024 records related to the claim from which you were exonerated should be redacted before the records are released. Otherwise, the custodian’s decisions are consistent with the FOIA.

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. 1

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.

101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 2

The first two elements appear to be met. The request was made to Garland County—a public entity subject to the FOIA. 2 And the records at issue appear to be public records. 3 Because these records are held by a public entity, they are presumed to be public records, 4 although that presumption is rebuttable. 5 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 distinct groups: “personnel records” 6 and “employee evaluation or job performance records.” 7 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. 8 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. 9

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 released under the FOIA.

2
E.g., Ark. Att’y Gen. Ops. 2024-095, 2023-120, 2020-028.
3
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). 4 Id.
5
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)). 6 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”). 7 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”). 8 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
9
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.

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 3

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.” 10 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. 11 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 12

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. 13 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. 14

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. 15 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. 16

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. 17 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. 18 Dates of birth of public employees should also be redacted. 19

10
A.C.A. § 25-19-105(b)(12).
11
308 Ark. 593, 826 S.W.2d 252 (1992).
12
John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
13
Young, 308 Ark. at 598, 826 S.W.2d at 255.
14
Id.
15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
16
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 12, at 207.
17
A.C.A. § 25-19-105(f).
18
See id. § 25-19-105(b)(13).
19
Ark. Att’y Gen. Op. 2007-064.

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 4

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 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

20
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren School 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, 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.

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 5

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. Mixed records. Some employee-related records are “mixed records” because they are (1) more
   than one person’s evaluation, (2) at least one person’s evaluation and at least one person’s personnel record, or (3) more than one person’s personnel record. 27 When a portion of a record is mixed, then the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Classification and disclosure of the 2023 suspension records. This set of records contains
   two documents. One is titled “Employee Corrective Action,” and the other is titled “Notice of Employee Corrective Action—Suspension Without Pay.” The “Employee Corrective Action” form gives employees standard information on their right to an appeal following any action outlined in the form. In this instance, this document is best classified as a personnel record because it does not evaluate you or detail your performance or lack of performance on the job. Because this form is a personnel record, it is subject to disclosure because it does not contain anything of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. So the custodian’s decision to release this record is consistent with the FOIA.

But the second document, “Notice of Employee Corrective Action—Suspension Without Pay,” is an employee evaluation. This Office has consistently opined that a suspension letter is an employee-evaluation record when it states the specific reasons for the suspension. 28 And the four-part test for release of this record appears to be met because (1) you were suspended; (2) the

23
Watkins et al., supra note 12, 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
See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).
28
E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension is an “employee evaluation/job performance record” when the letter details “the incidents that gave rise to the discipline”), 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies as a “job performance record”), 1998-075 (analyzing a list containing law-enforcement disciplinary action).

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 6

suspension appears to be final; (3) the records detail the grounds for suspension; and (4) there is a compelling public interest in disclosure of the records in question. 29 Therefore, the custodian’s decision to release this records is also consistent with the FOIA.

6. Classification and disclosure of the 2024 suspension records. This set of records contains 96
   documents. Although the custodian has classified these records are employee evaluations, many of them are, in fact, personnel records because they do not evaluate you or detail your performance or lack of performance on the job. Also, because these personnel records do not contain anything of a personal or intimate nature, they are subject to disclosure.

But some of the records are personnel records of other employees. For instance, one document is titled “Letter of Resignation.” This resignation seems to have prompted the investigation, so the letter was kept with the investigation records. This letter, though, is not an employee evaluation of you because it was not created by or at the behest of the employer to evaluate you. Instead, as to you, it is a personnel record. And it is subject to release because it does not contain anything of a personal or intimate nature.

Even though the resignation letter is a personnel record to you, the letter is also a personnel record to the former employee who wrote it. 30 So that former employee’s address, telephone number, and email address should be redacted from this document before it is disclosed. 31

Additionally, your date of birth is listed on the document titled “Polygraph Examination Report.” That discrete information needs to be redacted as a clearly unwarranted invasion of personal privacy.

Finally, not all the employee evaluations in this set of records are subject to release. Although you were investigated for two claims, you were exonerated for one of them. To the extent possible, any information related to the claim from which you were exonerated should be redacted because that information did not form a basis for your suspension. Because that information did not form a basis for your suspension, release of that information fails the four-part test for release of employee evaluations. But information related to the sustained claim must be disclosed, as the four-part test for release of that information appears to be met.

Other than the specific decisions discussed in this opinion, the custodian’s decisions are consistent with the FOIA.

29
This Office has consistently opined that violations of rules of conduct usually give rise to a compelling public interest in disclosure of employee-evaluation records. See, e.g. Ark. Att’y Gen. Ops. 2021-075, 2011-161, 1996-298. 30 When employment-related records relate to more than one employee, each employee is entitled to notice of the FOIA request. Ark. Att’y Gen. Op. 1996-142 (“The custodian of records has an obligation to notify an employee of any requests for personnel records”). There are numerous employees listed in these records. 31 See A.C.A. § 25-19-105(b)(13).

Captain Joel Ware
Garland County Sheriff’s Department
Opinion No. 2025-060
Page 7

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

Sincerely,

TIM GRIFFIN
Attorney General