Did Arkansas Corrections properly redact a warden's personnel file before releasing it to a FOIA requester?
Plain-English summary
Warden Thomas Hurst of the Arkansas Department of Corrections is the subject of a FOIA request. Someone asked for "all publicly releasable portions of his personnel file." The custodian put together a redacted version and was about to release it. Hurst objected and asked the AG to review the custodian's redaction choices.
Attorney General Tim Griffin walked through the file. The custodian was right that the personnel records were releasable as personnel records. The 2011 evaluation records connected to Hurst's 2013 termination satisfied the four-part test (suspension/termination occurred, the termination was final by 2025, the records formed the basis for the discipline, and the public had a compelling interest). So the basic call to release was correct.
But the custodian made two mistakes.
Errors of under-redaction (the custodian was about to release things that should be redacted):
- Income tax withholdings (should be redacted under prior AG opinions)
- Net pay (should be redacted)
Errors of over-redaction (the custodian redacted things that should be released):
- Race (releasable)
- Sex (releasable)
- Salary (releasable; public-employee compensation is public)
The custodian got the rest right: address, date of birth, social security number, employee number, and information about dependents are all redactable.
The opinion also flags that the 2011 records are "mixed records" because they reference other employees as well as Hurst. For mixed records, the custodian must apply the test separately to each portion. The other employees' names are redacted in some places but not in others, and the AG didn't have enough information to evaluate that part.
What this means for you
If you are a public employee in Arkansas
Don't expect that "personal" information stays redacted just because it feels personal. Race and sex are not redactable. Salary is not redactable. Date of birth, social security number, employee ID, dependents' information, and tax/withholding/net pay information are redactable.
If you object to the release of your personnel file, focus your objection on the categories that actually have privacy protection. A blanket "this is personal" argument will not work.
If you are a records custodian
Build a precise redaction checklist. The categories are not intuitive. Race and sex come out; net pay and withholdings stay in. The Office's prior opinions on each category control. When a category isn't on your checklist, look up the prior opinion before you redact or release.
Common error: redacting too much because it feels safer. The FOIA's bias is toward release; over-redaction is also a violation.
If you are a FOIA requester or journalist
Use this opinion as a checklist for what you should be able to see. Salary, race, sex, dates of hire, education, training, certifications, employee names, public-employee salary history, and payroll records are all releasable. Compensation transparency for public employees is a recurring theme in Arkansas FOIA.
If a custodian releases too much (e.g., net pay or banking info), the AG opinion 2025-062 supports a complaint that the redaction was incomplete. If a custodian redacts too much (e.g., race or sex), it is also a FOIA violation. Both directions matter.
If you are a state HR director
Run a periodic audit of your redaction practice. The categories shift slightly as new AG opinions come out. The 2025-062 opinion is the current AG view on multiple borderline categories.
Common questions
Q: Why is salary releasable but tax withholdings aren't?
A: Public-employee salary is paid by tax dollars and is a matter of public accountability. Tax withholding amounts are dependent on personal financial circumstances (withholding allowances, dependents, etc.) and are treated as intimate financial detail.
Q: Why is race releasable?
A: Because the privacy interest in race is minimal. Prior AG opinion 91-351 held that disclosure of race is not a clearly unwarranted invasion of personal privacy. Race is observable and routinely collected for civil-rights compliance reasons.
Q: What's a "mixed record"?
A: A record that contains information about more than one person. The custodian applies the relevant test to each piece of the record separately. So a record about Employee A that also mentions Employee B is a personnel record (or evaluation record) for A and separately for B.
Q: Did the four-part test get met for the 2013 termination evaluations?
A: Yes, by the AG's analysis: (1) Hurst was terminated in 2013; (2) twelve years have passed, so administrative finality is met; (3) the records formed the basis for the termination; (4) violations of rules of conduct give rise to compelling public interest in the records.
Q: What if I'm the warden and I want to keep a 2011 evaluation private?
A: You probably can't, if it ties to a 2013 termination that is now administratively final. The four-part test does not turn on the subject's preference. Consent or objection by the subject is irrelevant.
Background and statutory framework
Arkansas FOIA's two-track system distinguishes personnel records (open with redactions per Young v. Rice) from evaluation records (closed unless the four-part test is met). The redaction categories for personnel records have accumulated over decades of AG opinions. The 2025-062 opinion is a practical compendium of those categories applied to a specific file.
The categories that get redacted are mostly tied to financial intimacy or identification security:
- Personal contact info (b)(13)
- Employee identification numbers (b)(11)
- Marital status, dependent info, dates of birth, SSN, driver's license, insurance coverage, tax/withholding info, payroll deductions, net pay, banking info
The categories that don't get redacted are mostly tied to job performance and accountability:
- Salary, salary history, dates of hire, education, training, certifications, race, sex, payroll records (with redactions for the items above)
Mixed records are records that touch multiple employees. Each employee's portion is evaluated separately. This is the rule the AG flags but didn't have enough information to fully apply in the Hurst case.
Citations and references
Statutes:
- A.C.A. § 25-19-103(7)(A) (public-record definition)
- A.C.A. § 25-19-105(b)(11) (personal identification numbers)
- A.C.A. § 25-19-105(b)(12) (personnel records exception)
- A.C.A. § 25-19-105(b)(13) (personal contact information)
- A.C.A. § 25-19-105(c)(1) (evaluation records four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (opinion-request authority)
- A.C.A. § 25-19-105(f) (redaction authority)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012)
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (2019)
Prior AG opinions cited:
- Ark. Att'y Gen. Ops. 2025-059, 2024-095, 2024-073, 2024-045, 2023-120, 2023-084, 2023-012, 2022-032, 2021-075, 2020-037, 2020-028, 2018-084, 2018-064, 2018-015, 2018-008, 2016-055, 2015-072, 2015-057, 2014-094, 2011-161, 2011-051, 2009-181, 2009-067, 2008-065, 2007-070, 2007-064, 2006-038, 2006-035, 2005-194, 2005-095, 2004-167, 2003-385, 2003-153, 2003-073, 2002-043, 2001-152, 2001-112, 2001-080, 2001-028, 99-147, 98-126, 96-298, 96-168, 95-351, 94-198, 93-055, 91-351, 84-442
Source
Original opinion text
(Full opinion text reproduced from the body. Length and the predominantly footnote-driven structure are preserved as the AG issued them.)
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-062
July 23, 2025
Warden Thomas Hurst
Arkansas Department of Corrections
Via email only: [email protected]
Dear Warden Hurst:
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, the Arkansas Department of Corrections received a FOIA request for "[a]ll publicly releasable portions of [your] personnel file." The custodian has provided me with a redacted copy of your personnel file that she intends to release. I have not been provided an unredacted copy of those records. You object to the release of the records, and you ask if the custodian's decisions are consistent with the FOIA.
RESPONSE
In my opinion, the custodian has properly classified your personnel records and employee evaluations. And the custodian's decisions to release your personnel records and employee-evaluation records are consistent with the FOIA. But the custodian has failed to redact your income tax withholdings and net pay. Additionally, the custodian has incorrectly redacted information regarding your race, sex, and salary.
DISCUSSION
- 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 distinct 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 released 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, such as personal contact information of public employees; employee personnel numbers or identification numbers; marital status of public employees; information about children and dependents; dates of birth of public employees; social security numbers; insurance coverage; tax information or withholdings; payroll deductions; net pay; and banking information.
- 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.
-
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. When a portion of a record is mixed, then the custodian should apply the applicable tests for disclosure to that portion of the record.
-
Classification and disclosure of personnel records. "Personnel records" encompass many types of information found in an employment 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. Commendation letters from third parties are also personnel records. In this instance, the custodian has correctly classified this information as personnel records because the information relates to you but was not created by your employer to evaluate you.
A personnel record must be released when the public's interest in the information outweighs the employee's privacy interest in the record. 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 the 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 of a personal or intimate nature and have a greater than minimal privacy interest. The redacted information is your address, date of birth, social security number, employee number, 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 your income tax withholdings and net pay. This Office has consistently opined that disclosure of payroll deductions, tax exemption certificates and other tax withholding information, and net pay would be a clearly warranted invasion of privacy. Thus, the custodian's decision to include this information is inconsistent with the FOIA.
Further, the custodian has redacted information that should be disclosed. This Office has consistently opined that disclosure of your race, sex, and salary would not be a clearly unwarranted invasion of privacy. So the custodian's decision to redact this information is not consistent with the FOIA.
- Classification and disclosure of employee evaluations. I reviewed several documents related to a 2011 incident in which "[y]ou failed or refused to conduct an investigation as mandated by policy." These documents are employee-evaluation records because they were (1) created by or at the behest of the employer (2) to evaluate you and (3) detail your performance or lack of performance on the job. As to you, these documents can be released because the four-part test appears to be met: (1) you were terminated; (2) that termination occurred in 2013, so it is administratively final; (3) the documents formed a basis for the decision to terminate you; and (4) the public has a compelling interest in the disclosure of the records. Thus, the custodian's decision to release these records is consistent with the FOIA.
But the documents related to the 2011 incident also reference other employees, so they are mixed records. Because the documents are mixed records, the custodian must apply the applicable tests for disclosure to each portion of the record. From my review, the names of other employees involved are redacted in some instances but not redacted in other portions of the documents. And I do not have enough information to determine if the custodian's decisions related to these other employees is consistent with the FOIA.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General