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

The University of Arkansas System asked whether campus childcare surveillance footage could be released under FOIA after a copy became part of a child-maltreatment investigation. The Attorney General said footage in an authorized campus-police child-maltreatment investigation is exempt under A.C.A. § 12-18-104. That public-disclosure exemption continues after the investigation ends. For a DHS investigation, the Attorney General said the statute applies if DHS or someone on its behalf created, collected, or compiled the recordings; he could not determine from the facts whether that occurred here.

He also considered the separate exemption for undisclosed criminal investigations under A.C.A. § 25-19-105(b)(6), but left its fact-specific conditions to the custodian. Transfer of footage to a prosecutor or filing charges does not by itself establish that an investigation is closed.

For images of children, the Attorney General did not decide whether any particular child's information has constitutional privacy protection. The custodian must apply the McCambridge test, balance the relevant interests, and consider waiver. If information about a child is protected, digitally blurring faces can prevent release of that protected information.

What this means for you

If you are the university records custodian

Determine which entity conducted the investigation and how the footage was created, collected, or compiled. Apply A.C.A. § 12-18-104 to qualifying child-maltreatment records. If relying on the separate criminal-investigation exemption, decide whether the footage is investigative, whether suspected criminal activity is under open and ongoing investigation, and whether the agency has the required authority. For any constitutional privacy claim, apply McCambridge and waiver to the particular child's information before deciding what to redact.

If you are a parent

The opinion protects footage included in an authorized campus-police child-maltreatment investigation from public FOIA release. For footage outside that protection, it does not decide that your child's face must be blurred. The custodian must evaluate the specific information and circumstances under the constitutional test.

If you request the footage

The answer depends on the statutory and factual status of the copy you requested. The child-maltreatment exemption continues after the relevant investigation ends, while the separate undisclosed-investigation exemption turns on whether a qualifying criminal investigation remains open. The opinion does not decide a universal rule for all childcare footage.

Common questions

Does the child-maltreatment exemption end when the investigation closes? No. The Attorney General says qualifying records remain exempt from public FOIA release. The opinion describes limited disclosures to specified government recipients and protective-order conditions for re-disclosure.

Is any footage seen by DHS automatically exempt?
No. For DHS's branch of the exemption, DHS or someone acting for it must have created, collected, or compiled the footage. The Attorney General lacked facts to decide that here.

Does the opinion order every child's face blurred?
No. The custodian must apply the McCambridge privacy and waiver analysis. Blurring is a sufficient redaction method if the custodian determines information about a minor is constitutionally protected.

Background and statutory framework

A.C.A. § 12-18-104 protects data and records concerning specified child-maltreatment investigations. A.C.A. § 25-19-105(b)(6) separately exempts undisclosed investigations of suspected criminal activity when its conditions are met. McCambridge v. City of Little Rock supplies a narrow, fact-specific constitutional privacy test for personal matters, followed by a balance of disclosure and privacy interests.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (Opinion No. 2025-065; PDF consulted for full text and footnotes).

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

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:1

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?

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.

2. 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.2

1
For this opinion, I have reworded the parts of your questions that state, “inside the childcare facility in the campus’s possession,” to “inside the campus childcare facility.” 2 A.C.A. § 12-18-104(b).

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 2

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?

   Brief response: Yes, if the Department of Human Services, or someone on its behalf,
   created, collected, or compiled the video recordings.

4. 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.

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?

   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).

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.

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?

   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.

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?

   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

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 3

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. 3 Second, the requested document must constitute a public record.4 Third, the document must not be subject to an exemption.5

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.6 And the records at issue appear to be public records.7 Because these records are held by a public entity, they are presumed to be public records,8 although that presumption is rebuttable.9 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.10

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?

3
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
4
Id.
5
Id.
6
See, e.g., A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (including “a public official or employee” or “a governmental agency”). 7 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(14)(A), as amended by Act 505 of 2025, § 1. 8 Id.
9
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)). 10 See Troutt Bros. v. Emison, 311 Ark. 27, 30, 841 S.W.2d 604, 607 (1992).

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 4

While the FOIA contains specific exemptions for certain public records, it also incorporates the confidentiality provisions of other statutes.11 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.12

Video recordings qualify as both “data” and “records.”13 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,14 “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.15 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.16

11
A.C.A. § 25-19-105(a)(1)(A) (“Except as otherwise specifically provided by this section or by laws specifically enacted to provide otherwise, all public records shall be open to inspection and copying ….”) (emphasis added). 12 A.C.A. § 12-18-104(a); see also Ark. Att’y Gen. Op. 2016-068.
13
Data, Black’s Law Dictionary (12th ed. 2024) (defining “data” to include “[i]nformation recorded in any medium for purposes of reference or analysis”); Record, Black’s Law Dictionary (12th ed. 2024) (defining “record” as “[i]nformation that is inscribed on a tangible medium or that, having been stored in an electronic or other medium, is retrievable in perceivable form”); A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (defining “public records” to include “recorded sounds, films, tapes, [and] electronic or computer-based information … in any medium”). 14 See Ark. Att’y Gen. Op. 2016-068 (concluding that “it is clear that sheriffs’ offices and police departments are included”). 15 A.C.A. § 12-18-104(c).
16
Id. § 12-18-104(b).

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 5

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;17 (2) of “criminal investigations” that are “open and ongoing”;18 (3) by an agencies that have the authority to “investigate suspected criminal activity under the state penal code and have enforcement powers.”19 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

17
Hengel v. City of Pine Bluff, 307 Ark. 457, 460–63, 821 S.W.2d 761, 763–64 (1991); Ark. Att’y Gen. Op. 2006- 094; see also John J. Watkins et al., The Arkansas Freedom of Information Act 140 (6th ed. 2017) (noting that such “investigative records” are typically “‘internal work product’ that lies at the heart of a police investigation” or building a case against a suspect); Ark. Att’y Gen. Ops. 2007-272 (opining that “purely information documents” generally would not “fall within the scope of the exemption” as investigative records), 90-292 (opining that a record is not an “investigative record simply … [because] it recites information obtained by law enforcement”). 18 Martin v. Musteen, 303 Ark. 656, 657–60, 799 S.W.2d 540, 541–42 (1990).
19
Woosley, 291 Ark. at 93, 722 S.W.2d at 584.

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 6

on a case-by-case basis.20 Because I am not a factfinder in issuing opinions,21 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.22 While some child maltreatment penalties are criminal, many of them are administrative and civil.23 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;24 until official charges are filed by the prosecutor;25 until the case for which the investigation occurred is set for trial;26 or until the trial is final or statute of limitations has run.27 And the Court has held that an investigation is no longer open when “a case is closed by administrative action,”28 or when an overall investigation continues after one of the suspects is charged with a crime.29

20
See, e.g., Ark. Att’y Gen. Ops. 2006-094, 2002-303 at n.2, 98-127.
21
E.g., Ark. Att’y Gen. Ops. 2025-053, 2024-045, 2016-013, 96-123.
22
See Johninson v. Stodola, 316 Ark. 423, 425–27, 872 S.W.2d 374, 375–76 (1994) (suggesting that intelligence records of gang-member surveillance not tied to a specific crime—but “dealing with the detection of crime”—could fall within the exemption). 23 A.C.A. §§ 12-18-101 to -1202 (the Child Maltreatment Act).
24
Ark. Att’y Gen. Op. 88-055.
25
Ark. Att’y Gen. Op. 90-305.
26
Ark. Att’y Gen. Op. 89-311.
27
Ark. Att’y Gen. Op. 89-101.
28
McCambridge v. City of Little Rock, 298 Ark. 219, 233, 766 S.W.2d 909, 916 (1989).
29
Martin, 303 Ark. at 659–60, 799 S.W.2d at 542.

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 7

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.30 That is, an investigation by law enforcement could be closed but remain open for purposes of the exemption “with respect to the prosecutor.”31 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.”32 Whether an investigation is “open and ongoing” is highly factual and may vary from situation to situation.33 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,”34 the FOIA itself does not likewise contain a general exemption for records that, if released, would constitute an invasion of personal privacy.35

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.”36 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.”37 If all three elements are met, a court would then weigh the

30
See Ark. Att’y Gen. Op. 2002-303 (opining that “an investigation is not ‘completed’ simply because it is transferred from one agency to another”). 31 Id.
32
Ark. Att’y Gen. Op. 2002-303.
33
See, e.g., Ark. Att’y Gen. Ops. 2006-094, 2002-303 at n.2, 98-127.
34
A.C.A. § 25-19-105(b)(12).
35
See, e.g., id. §§ 25-19-103, -105.
36
298 Ark. 219, 229–32, 766 S.W.2d 909, 914–15 (1989); see also Ark. Att’y Gen. Op. 2021-041.
37
McCambridge, 298 Ark. at 230–31, 766 S.W.2d at 914–15.

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 8

government’s interest in disclosure against the subject’s privacy interest.38 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.39 The constitutional privacy exemption narrowly applies only to “extremely personal” information.40 Whoever is claiming the right has the burden of establishing it.41

Although the Arkansas Supreme Court has not applied the federal constitutional right of privacy since the McCambridge decision,42 it has not overruled the decision either.43 And while the federal Eighth Circuit Court of Appeals has held that a federal constitutional right to informational privacy is not “clearly established,”44 that holding does not bind the Arkansas Supreme Court.45

Someone, however, could waive the constitutional right of privacy to information.46 For example, a person may waive the right by making “the record in question public”47 or by otherwise having “no expectation of privacy” when exchanging information.48

Because both the McCambridge test and waiver analysis are fact-specific49—and I am not a factfinder when issuing opinions—I cannot definitively conclude whether certain information 38 Id., 298 Ark. at 231–32, 766 S.W.2d at 915; see also Ark. Att’y Gen. Op. 2002-238.
39
E.g., Ark. Att’y Gen. Ops. 93-356; see also Ark. Att’y Gen. Op. 97-244.
40
See Ark. Att’y Gen. Ops. 2016-004, 2013-012, 2009-147, 2008-090, 2004-212, 98-260, 97-244. Generally, someone’s address, personal phone number, resumes, and personal references likely would “not trigger constitutional protection” under McCambridge. Ark. Att’y Gen. Ops. 93-421, 93-403, 93-114. 41 E.g., Ark. Att’y Gen. Ops. 2014-052, 2007-001, 2006-141, 2001-122.
42
See Ark. Att’y Gen. Op. 2020-041.
43
See, e.g., Myers v. Fecher, 2021 Ark. 230, 12, 635 S.W.3d 495, 501 (Wood, J., concurring) (“I would reverse and remand for a hearing and an application of the constitutional right-to-privacy analysis under McCambridge.”); Hopkins v. City of Brinkley, 2014 Ark. 139, 8–11, 432 S.W.3d 609, 614–16 (citing the McCambridge right-to-privacy analysis but holding that the plaintiff lacked standing and, even if he or she had standing, failed to provide evidence of a “personal matter” under the McCambridge test). 44 Dillard v. O’Kelley, 961 F.3d 1048, 1053–55 (8th Cir. 2020) (reversing a lower court’s denial of qualified immunity in the context of a federal § 1983 case). 45 Bryan A. Garner, et al., The Law of Judicial Precedent 691–93 (2016) (noting that, generally, “the decisions of inferior federal courts are not controlling authority in state court” and that both state courts and inferior federal courts are subject to U.S. Supreme Court decisions “on questions of federal law”). 46 In Pulaski Cnty. v. Arkansas Democrat-Gazette, Inc., 371 Ark. 217, 220–21, 264 S.W.3d 465, 467–68 (2007).
47
Ark. Att’y Gen. Op. 2004-248.
48
In Pulaski Cnty., 371 Ark. at 220–21, 264 S.W.3d at 467–68.
49
Ark. Att’y Gen. Op. 97-244.

President Jay B. Silveria
University of Arkansas System
Opinion No. 2025-065
Page 9

should be withheld under a federal constitutional right of privacy.50 The custodian must review and apply the facts to the McCambridge test to determine whether specific information should be released or withheld,51 or whether a waiver applies.52

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.53

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

50
Ark. Att’y Gen. Ops. 2020-041, 97-244.
51
See Ark. Att’y Gen. Ops. 2020-051 (opining—without concluding—that “the custodian may wish to consider the minor’s possible privacy interest before releasing the records,” citing the McCambridge case), 2001-228 (noting that such a “determination will be a factual one, based upon information concerning the situation uniquely available to the custodian”). 52 See Ark. Att’y Gen. Op. 2011-078, 2011-072.
53
See, e.g., Ark. Att’y Gen. Op. 2012-085 (opining that the custodian would need to make redactions to constitutionally protected information).