A campus childcare center has video surveillance footage that ended up in a child-maltreatment investigation. Can the university release that footage in response to a FOIA request?
Plain-English summary
President Silveria of the University of Arkansas System asked about a thorny FOIA question: a campus childcare facility has video surveillance footage. A copy of that footage has become part of a child maltreatment investigation conducted by either campus police, the Department of Human Services, or both. Someone files a FOIA request. Can the footage be released?
The AG walks through three different exemption frameworks (the Child Maltreatment Act exemption, the undisclosed-investigations exemption, and constitutional privacy under McCambridge) and concludes that the answer is mostly "no," with several fact-specific moving parts.
1. Child Maltreatment Act (A.C.A. § 12-18-104) exemption. The FOIA incorporates other statutes' confidentiality provisions. § 12-18-104 exempts from disclosure any "data, records, reports, or documents" concerning child maltreatment investigations conducted by DHS, the Arkansas State Police, "or other entity authorized under [the Child Maltreatment Act] to perform investigations." Police departments, including campus police, are authorized to conduct child maltreatment investigations.
So:
- Campus police investigation: The video footage, as data and records used in the investigation, is exempt under § 12-18-104. This is a permanent bar as to the public.
- DHS investigation: Exempt only if DHS (or someone on its behalf) created, collected, or compiled the footage. If the campus already had the footage on its own and DHS did not collect or compile it, § 12-18-104 may not apply.
- Sharing within government: DHS and the Arkansas State Police can share with law enforcement, prosecutors, or courts. Re-disclosure outside that group requires a protective order.
2. Undisclosed-investigations exemption (A.C.A. § 25-19-105(b)(6)). Three-element test: investigative records; of an open and ongoing criminal investigation; by an agency authorized to investigate criminal activity. Whether each element is met is a fact question for the custodian. Even if it applies, the AG cannot define a bright-line rule for when an investigation is "open and ongoing." Some prior opinions say it ends when the case is transferred to the prosecutor; others say when charges are filed; others say when trial is set; others say when the trial is final or limitations have run. McCambridge says it ends when the case is "closed by administrative action."
3. Constitutional right of privacy (McCambridge v. City of Little Rock). The FOIA does not have a general privacy exemption, but the Arkansas Supreme Court in 1989 held that some information in public records can be withheld under a federal constitutional right of privacy in "personal matters." Three-element test:
- Someone wants to and has kept the information private or confidential;
- The information can be kept private or confidential but for the challenged government action;
- A reasonable person would find disclosure harmful or embarrassing.
If all three are met, courts then balance the government's interest in disclosure against the subject's privacy interest. The exemption is narrow and applies only to "extremely personal" information. Waiver can apply (making the record public; no expectation of privacy).
For minor children captured incidentally in childcare video, the McCambridge analysis is fact-specific. The custodian must apply the test. If the test is met, digitally blurring faces is a sufficient remedy, the AG concludes.
Limits. The AG cannot decide the fact questions: whether DHS collected or compiled the footage, whether the criminal investigation is open and ongoing, whether a particular minor's image triggers constitutional protection. Those are for the custodian to apply on the record.
What this means for you
If you are a university or college records custodian
Two-track analysis:
1. Child Maltreatment Act track. If campus police are conducting a child maltreatment investigation that includes the footage, the footage is exempt under § 12-18-104. Confirm campus police have classified it as a child maltreatment investigation, not just a generic crime investigation.
2. Constitutional privacy track. Even if § 12-18-104 does not cleanly apply, the McCambridge test may require redaction (blurred faces) for minors who are not the subject of the investigation. Apply it record-by-record.
Document your reasoning. Custodians who release child maltreatment investigation footage in violation of § 12-18-104 risk both legal exposure and professional consequences.
If you operate a campus childcare facility
Build the FOIA-protection consideration into your video retention and access policies:
- Restrict who can copy the footage outside the facility.
- When investigators (campus police or DHS) request footage, document the investigation context so the records custodian knows the proper exemption track.
- Notify parents that footage may end up in investigations and may be limited from public release as a result.
If you are a parent of a child in campus childcare
Your child's image in surveillance footage that becomes part of a child maltreatment investigation is well-protected from public release. § 12-18-104 acts as a near-permanent bar. Even outside that statute, the McCambridge constitutional privacy analysis would likely require blurring of your child's face if release were sought.
If you are a journalist or accountability advocate seeking childcare records
Three points:
1. Footage tied to a child maltreatment investigation by DHS, State Police, or police is functionally inaccessible under FOIA.
2. Footage that has not been gathered into a child maltreatment investigation may be reachable, subject to constitutional privacy redactions for minors.
3. Aggregate or anonymized data about childcare incidents (numbers, types, outcomes) may be obtainable separately under different request framings.
If you are a campus police officer or investigator
Take care to classify investigations correctly. A "child maltreatment investigation" triggers the § 12-18-104 protection. A general criminal investigation may not.
If you are a DHS attorney
Section 12-18-104 protects records "created, collected, or compiled by or on behalf of" DHS. Custody alone is not enough; DHS or its contractors must be involved in creating, collecting, or compiling the record. Document those touches in your case files.
Common questions
What does § 12-18-104 actually exempt?
"Data, records, reports, or documents" concerning child maltreatment investigations conducted by DHS, the Arkansas State Police, or any other entity authorized under the Child Maltreatment Act to perform investigations. Video footage falls within "data" and "records."
Does the exemption end when the investigation closes?
No. Section 12-18-104 protects the records from public release regardless of whether the investigation is ongoing or has ended. The protection is permanent as to the public. DHS and State Police can share with law enforcement, prosecutors, or courts; re-disclosure outside that requires a protective order.
Why did the AG say § 12-18-104 might not apply to a DHS investigation?
Because the statutory text covers records "created, collected, or compiled by or on behalf of" DHS. If the campus already had the footage and DHS never collected or compiled it (just observed it on the campus's premises), the records are not within DHS's "created/collected/compiled" set. The custodian needs to evaluate whether DHS or someone on its behalf actually collected or compiled the footage.
What is the McCambridge test?
The Arkansas Supreme Court's 1989 framework for a federal constitutional right of privacy in "personal matters." Three elements (kept private; can be kept private; reasonable person finds disclosure harmful or embarrassing) plus a balancing test. Narrow application: only "extremely personal" information.
Does McCambridge cover children's images?
Possibly. The custodian must apply the test. The AG declines to opine on whether a particular minor's image triggers constitutional protection because it is fact-specific. But the AG accepts that if the test is met, blurring faces is a sufficient redaction.
Can the requester argue waiver?
Sometimes. A subject who makes the record public, or who has no expectation of privacy when exchanging information, can waive the right. For children in childcare video, no waiver argument is obvious.
What about the Eighth Circuit's decision saying constitutional informational privacy is not "clearly established"?
The AG notes Dillard v. O'Kelley (8th Cir. 2020) held that the right to informational privacy is not clearly established for federal qualified-immunity purposes. But that case does not bind the Arkansas Supreme Court. McCambridge has not been overruled.
Background and statutory framework
FOIA structure. A.C.A. § 25-19-105(a)(1)(A) opens public records to inspection except where another statute or this section provides otherwise. The FOIA incorporates other statutes' confidentiality provisions.
A.C.A. § 12-18-104 (Child Maltreatment Act).
- (a): Exempts data, records, reports, or documents concerning child maltreatment investigations from disclosure.
- (b): DHS and Arkansas State Police may release such records to law enforcement, prosecutors, or courts. Re-disclosure requires a protective order.
- (c): Authorizes disclosure to the Child Maltreatment Investigations Oversight Committee.
The exemption applies to entities "authorized under [the Child Maltreatment Act] to perform investigations," including police departments (Op. 2016-068).
A.C.A. § 25-19-105(b)(6) (undisclosed investigations). Three-element test:
- Investigative records (Hengel v. City of Pine Bluff, 1991): "internal work product" of an investigation, not just informational documents.
- Open and ongoing investigation (Martin v. Musteen, 1990): a question of fact.
- Authorized agency with criminal-investigation powers (Woosley, 1987).
McCambridge v. City of Little Rock, 298 Ark. 219 (1989). Federal constitutional right of privacy in personal matters. Three-element test plus balancing. Narrow scope.
No bright-line rule for "open and ongoing." Various AG opinions treat the cutoff as: transfer to prosecutor (Op. 88-055), filing of charges (Op. 90-305), case set for trial (Op. 89-311), trial final or limitations run (Op. 89-101). McCambridge says administrative closure ends the protection. Whether an investigation remains open is fact-specific.
Federal qualified immunity for informational privacy. Dillard v. O'Kelley, 961 F.3d 1048 (8th Cir. 2020), held the right to informational privacy is not clearly established for purposes of federal qualified immunity. That holding does not bind state courts (Bryan A. Garner et al., The Law of Judicial Precedent 691-93 (2016)).
Citations
Statutes:
- A.C.A. § 12-18-104 (Child Maltreatment Act records exemption)
- A.C.A. § 25-19-103 (FOIA definitions)
- A.C.A. § 25-19-105 (exemptions; (a)(1)(A) general rule; (b)(6) undisclosed investigations; (b)(12) personnel records)
Cases:
- McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)
- Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W.2d 761 (1991)
- Martin v. Musteen, 303 Ark. 656, 799 S.W.2d 540 (1990)
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
- Johninson v. Stodola, 316 Ark. 423, 872 S.W.2d 374 (1994)
- Pulaski County v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Pulaski County v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007) (waiver)
- Troutt Bros. v. Emison, 311 Ark. 27, 841 S.W.2d 604 (1992) (narrow construction of exemptions)
- Dillard v. O'Kelley, 961 F.3d 1048 (8th Cir. 2020) (federal qualified immunity)
Other AG opinions:
- 2016-068 (police authorized to perform child maltreatment investigations)
- 2002-303, 2006-094, 98-127 (open and ongoing analysis)
- 88-055, 89-311, 89-101, 90-305 (varying open-and-ongoing cutoffs)
- 2021-041, 2020-041, 97-244, 2014-052, 2007-001, 2006-141, 2001-122 (constitutional privacy analyses)
- 2012-085 (constitutional redactions)
- 2020-051, 2001-228 (minor's possible privacy interest)
- 2011-078, 2011-072 (waiver)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-065
October 17, 2025
President Jay B. Silveria
University of Arkansas System
2404 North University Avenue
Little Rock, Arkansas 72207
Dear President Silveria:
You have requested an opinion from this Office concerning records used in child maltreatment investigations under the Arkansas Freedom of Information Act (FOIA). Specifically, you ask the following questions, which I have renumbered for clarity:
- Does A.C.A. § 12-18-104 prohibit the release of video footage from cameras inside the campus childcare facility if a copy of the footage becomes part of a child maltreatment investigation conducted by campus police officers?
Brief response: Yes. Because police officers are authorized under the Child Maltreatment Act to conduct child maltreatment investigations, campus police officers are subject to the exemption and cannot release video data or records under a FOIA request.
- If the answer to Question 1 is "yes," does the exemption permanently bar disclosure of the records?
Brief response: Yes, as to the public. But both the Department of Human Services and the Arkansas State Police may release such records to law enforcement, a prosecuting attorney, or a court. Additionally, the exempted records could be "re-disclosed" with a protective order.
- Does A.C.A. § 12-18-104 prohibit the release of video footage from cameras inside the campus childcare facility if a copy of the footage becomes part of a child maltreatment investigation conducted by the Arkansas Department of Human Services?
Brief response: Yes, if the Department of Human Services, or someone on its behalf, created, collected, or compiled the video recordings.
- If the answer to Question 3 is "yes," does the exemption permanently bar disclosure of the records?
Brief response: Please see my response to Question 2.
- Is the video footage from cameras inside the campus childcare facility exempt from disclosure under A.C.A. § 25-19-105(b)(6) if a copy of the footage becomes part of a child maltreatment investigation conducted by the campus police officers?
Brief response: While that might be possible, I cannot definitely conclude whether the video footage is exempt from release under A.C.A. § 25-19-105(b)(6).
- If the answer to Question 5 is "yes," does the exemption end when (1) the campus turns over a copy of the footage to the prosecutor for a determination of whether to press charges or (2) the prosecutor formally charges a suspect with a crime?
Brief response: I cannot definitely conclude when a particular investigation is open or closed for purposes of the "undisclosed investigation" exemption.
- In instances where the video footage features minor children who are not dependents of the requestor, would disclosure of these videos pursuant to the FOIA constitute an unconstitutional invasion of privacy?
Brief response: For reasons discussed in the opinion, I cannot definitively conclude whether certain information should be withheld under a federal constitutional right of privacy. The custodian will need to review and apply the McCambridge test to the applicable facts to determine whether such information should be released or withheld, or whether waiver is applicable in each situation.
- If the answer to Question 7 is "yes," would the constitutional issue be resolved by releasing the video footage after digitally manipulating it to blur the faces of the other minor children?
Brief response: If the custodian applies the McCambridge test and waiver analysis discussed in the opinion and determines that certain information of a minor child is constitutionally protected, making redactions by blurring faces would sufficiently prevent such protected information from release.
DISCUSSION
A document must be released in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the FOIA. Second, the requested document must constitute a public record. Third, the document must not be subject to an exemption.
The first two elements appear to be met here. The request was made to a campus of the University of Arkansas System, 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. I have no information, however, to suggest that the presumption can be rebutted, so I will turn to exemptions, which are the crux of your questions. Exemptions to the FOIA are read narrowly, and if the scope of an exemption is unclear, courts will generally interpret exemptions in favor of releasing the record.
Question 1: Does A.C.A. § 12-18-104 prohibit the release of video footage from cameras inside the campus childcare facility if a copy of the footage becomes part of a child maltreatment investigation conducted by campus police officers?
While the FOIA contains specific exemptions for certain public records, it also incorporates the confidentiality provisions of other statutes. One such provision is codified at A.C.A. § 12-18-104, which exempts from disclosure any "data, records, reports, or documents" concerning certain child maltreatment investigations.
Video recordings qualify as both "data" and "records." The pivotal question, then, is whether campus police officers conducting a child maltreatment investigation qualify to use the exemption.
Arkansas Code § 12-18-104's confidentiality protections apply not only to the Department of Human Services (DHS) and the Division of Arkansas State Police, but also to any "other entity authorized under [the Child Maltreatment Act] to perform investigations." Because a police department is authorized under the Child Maltreatment Act to perform child maltreatment investigations, "data, records, reports, or documents" concerning child maltreatment investigations by campus police are exempt from release under the FOIA. Thus, A.C.A. § 12-18-104 prohibits the release of video footage from cameras inside the campus childcare facility if a copy of the footage, as data or a record, is part of a child maltreatment investigation conducted by campus police officers.
Question 2: If the answer to Question 1 is "yes," does the exemption permanently bar disclosure of the records?
Under A.C.A. § 12-18-104(a), the exempted data, records, reports, or documents concerning certain child maltreatment investigations are not subject to release under the FOIA, regardless of whether the investigation is ongoing or has ended. But the campus police department may disclose and discuss the exempted materials with the Child Maltreatment Investigations Oversight Committee. Both the DHS and the Arkansas State Police may also release such records to law enforcement, a prosecuting attorney, or a court, but those records must be sealed and can only be "re-disclosed" with a protective order.
Question 3: Does A.C.A. § 12-18-104 prohibit the release of video footage from cameras inside the campus childcare facility if a copy of the footage becomes part of a child maltreatment investigation conducted by the Arkansas Department of Human Services?
Under A.C.A. § 12-18-104(a), "data, records, reports, or documents that are created, collected, or compiled by or on behalf of" DHS concerning child maltreatment investigations or services provided to children, individuals, or families are exempt from disclosure under the FOIA. Thus, a copy of video footage that is part of a child maltreatment investigation conducted by DHS is not necessarily exempt if DHS or another authorized entity did not create, collect, or compile that footage. If DHS is the only authorized entity involved, one would need to determine whether DHS created, collected, or compiled the video footage. Based on the information provided with your request, the video footage likely was not created by or on behalf of DHS. But I lack sufficient facts to determine whether DHS collected or compiled the video recordings. If DHS, or someone acting on its behalf, collected or compiled the video recordings, then those records cannot be released under A.C.A. § 12-18-104(a).
Question 4: If the answer to Question 3 is "yes," does the exemption permanently bar disclosure of the records?
Please see my response to Question 2.
Question 5: Is the video footage from cameras inside the campus childcare facility exempt from disclosure under A.C.A. 25-19-105(b)(6) if a copy of the footage becomes part of a child maltreatment investigation conducted by the campus police officers?
Arkansas Code § 25-19-105(b)(6) exempts from release "[u]ndisclosed investigations by law enforcement agencies of suspected criminal activity." Thus, a court will apply that exemption only to (1) investigative records; (2) of "criminal investigations" that are "open and ongoing"; (3) by an agencies that have the authority to "investigate suspected criminal activity under the state penal code and have enforcement powers." The information submitted with your opinion request indicates that the third element is met. But whether a record is sufficiently "investigative," or an investigation is "open and ongoing," is inherently factual and should be decided by the custodian on a case-by-case basis. Because I am not a factfinder in issuing opinions, I cannot definitively conclude whether elements one and two are met here.
Even if the footage qualifies as an investigative record and the investigation is "open and ongoing," the exemption's applicability hinges on whether the investigation pertains to suspected criminal activity. While some child maltreatment penalties are criminal, many of them are administrative and civil. Thus, the "criminal investigations" portion of the second element is met if the campus police officers are investigating potential criminal conduct, not mere civil violations. Ultimately, the custodian must review the information it has and determine whether this requirement is met.
Question 6: If the answer to Question 5 is "yes," does the exemption end when (1) the campus turns over a copy of the footage to the prosecutor for a determination of whether to press charges or (2) the prosecutor formally charges a suspect with a crime?
Your question hinges on the "open and ongoing" requirement of A.C.A. § 25-19-105(b)(6)'s "undisclosed investigations" exemption. The Arkansas Supreme Court and this Office have consistently recognized that whether an investigation remains "open and ongoing" is a question of fact. Depending on the particular facts provided, this Office has previously opined that an investigation may remain open and ongoing until the results of the investigation are transferred as a case to the prosecutor; until official charges are filed by the prosecutor; until the case for which the investigation occurred is set for trial; or until the trial is final or statute of limitations has run. And the Court has held that an investigation is no longer open when "a case is closed by administrative action," or when an overall investigation continues after one of the suspects is charged with a crime.
Even if law enforcement sends some investigatory records to another agency, like the prosecutor's office, that does not mean that the investigation is necessarily closed for purposes of the exemption. That is, an investigation by law enforcement could be closed but remain open for purposes of the exemption "with respect to the prosecutor." Thus, neither the transfer of footage nor the filing of charges is determinative of whether an investigation is closed and the exemption ends.
In short, "[t]here is no bright-line rule." Whether an investigation is "open and ongoing" is highly factual and may vary from situation to situation. Accordingly, I am unable to opine on whether a particular investigation, assuming the other elements of the exemption are met, is open and ongoing or now closed and not subject to the exemption. That determination rests with the custodian.
Question 7: In instances where the video footage features minor children who are not dependents of the requestor, would disclosure of these videos pursuant to the FOIA constitute an unconstitutional invasion of privacy?
Although the personnel-records exemption contained in the FOIA prevents the release of records that are an "unwarranted invasion of personal privacy," the FOIA itself does not likewise contain a general exemption for records that, if released, would constitute an invasion of personal privacy.
In 1989, the Arkansas Supreme Court held in McCambridge v. City of Little Rock that some information contained in public records could be withheld from release under a federal constitutional right of privacy in "personal matters." To qualify as a "personal matter," information must meet the following three criteria: (1) someone "wants to and has kept private or confidential"; (2) the information "can be kept private or confidential" but for the challenged governmental action in releasing the records; and (3) a reasonable person would find the disclosure "harmful or embarrassing." If all three elements are met, a court would then weigh the government's interest in disclosure against the subject's privacy interest. Thus, even if information qualifies as a "personal matter," such information would still be released under the FOIA if there is a sufficient governmental interest in its release. The constitutional privacy exemption narrowly applies only to "extremely personal" information. Whoever is claiming the right has the burden of establishing it.
Although the Arkansas Supreme Court has not applied the federal constitutional right of privacy since the McCambridge decision, it has not overruled the decision either. And while the federal Eighth Circuit Court of Appeals has held that a federal constitutional right to informational privacy is not "clearly established," that holding does not bind the Arkansas Supreme Court.
Someone, however, could waive the constitutional right of privacy to information. For example, a person may waive the right by making "the record in question public" or by otherwise having "no expectation of privacy" when exchanging information.
Because both the McCambridge test and waiver analysis are fact-specific, and I am not a factfinder when issuing opinions, I cannot definitively conclude whether certain information should be withheld under a federal constitutional right of privacy. The custodian must review and apply the facts to the McCambridge test to determine whether specific information should be released or withheld, or whether a waiver applies.
Question 8: If the answer to Question 7 is "yes," would the constitutional issue be resolved by releasing the video footage after digitally manipulating it to blur the faces of the other minor children?
If the custodian applies the McCambridge test and waiver analysis discussed above and determines that certain information about a minor child is constitutionally protected, then redacting that information, including by digitally blurring faces, would sufficiently safeguard those constitutional privacy rights and prevent disclosure of protected information.
Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General