If text messages from a state trooper's personal phone end up in the trooper's personnel file because of an investigation, can the public get them under FOIA, even though the trooper says they're personal?

Plain-English summary

A requester sought disciplinary records in the personnel files of law enforcement officers present during a particular incident. Trooper Cade Padgett objected to releasing screenshots of text messages from his personal phone, saying they concerned personal matters. The records custodian redacted portions about family matters and proposed to release the rest. The Attorney General found the release decision consistent with Arkansas FOIA.

The opinion classifies the messages on the specified pages as personnel records: they pertain to the trooper but were not created by or at the employer’s request to evaluate his performance. The personnel-record privacy test asks whether disclosure would be a clearly unwarranted invasion of personal privacy. The opinion says the custodian properly redacted exempt details, the remaining content created no more than a de minimis privacy interest, and the public had a significant interest in the messages.

Footnote 17 notes that the messages are also referenced in the trooper’s employee-evaluation records, whose release he did not oppose. The opinion does not identify that reference as the reason the public interest was significant; it analyzes the text messages themselves as personnel records.

What this means for you

Employees whose messages are requested

For these messages, the opinion says the personal-phone origin did not prevent them from being treated as personnel records. Their classification turned on their relation to the employee and the fact that they were not created by or at the employer’s request to evaluate performance. The opinion approves the release of the remaining content after family-related redactions.

FOIA custodians

The opinion distinguishes personnel records from employee-evaluation or job-performance records because different disclosure tests apply. For personnel records, the custodian applies the privacy balancing test and may need to redact discrete exempt information even when the rest of a document is released.

FOIA requesters

The opinion finds the specified text messages releasable as redacted. It does not hold that all text messages on an employee’s personal phone, or every message held in an employee file, must be disclosed.

Common questions

Are text messages from a personal phone automatically private under Arkansas FOIA?

The opinion does not treat the phone’s ownership as decisive. It classifies the specified messages as personnel records because they pertain to the trooper and were not created by or at the employer’s request to evaluate him.

Why were family-related portions redacted?

The opinion says the custodian properly redacted exempt discrete information. A footnote cites earlier AG opinions addressing information about marital status and family life under the personnel-record privacy standard.

Why did the Attorney General approve release of the remaining messages?

The opinion says the remaining information carried no more than a de minimis privacy interest and that the public had a significant interest in the messages’ content. It concludes the public interest outweighed the trooper’s privacy interest.

Were the messages employee-evaluation records?

No. The opinion classifies the messages as personnel records because they were not created by or at the employer’s request to evaluate the trooper. Footnote 17 separately says the messages were referenced in employee-evaluation records.

Background and statutory framework

The opinion says a requested document must be disclosed when the request is directed to an entity subject to FOIA, the document is a public record, and no exception permits withholding. The Department of Public Safety is subject to FOIA, and the opinion says the requested records appear to be public records. Records held by a public entity are presumed public, though the presumption can be rebutted.

Personnel records concern an employee but are not created by or at the employer’s request to evaluate performance. Employee-evaluation or job-performance records are created by or at the employer’s request to evaluate the employee and detail job performance. The opinion places these messages in the first category.

Under A.C.A. § 25-19-105(b)(12), personnel records are open except to the extent disclosure would be a clearly unwarranted invasion of personal privacy. The privacy test from Young v. Rice first asks whether the information creates a greater than de minimis privacy interest. If so, the custodian weighs that interest against the public interest, with the scale tipped toward public access. The opinion applies that test to the specified messages and approves the custodian’s redactions and release decision.

Citations

Statutes:

• A.C.A. § 25-19-103(7)(A)
• A.C.A. § 25-19-105(b)(12)
• A.C.A. § 25-19-105(c)(3)(B)(i)
• A.C.A. § 25-19-105(f)

Cases:

• Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440–41, 260 S.W.3d 718, 722 (2007)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
• Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392
• Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, at 7–8, 572 S.W.3d 466, 471

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2025-079
August 20, 2025
Trooper Cade Padgett
Arkansas State Police
Via email only: [email protected]
Dear Trooper Padgett:
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 the correspondence you provided, the Arkansas Department of Public Safety received a FOIA request for “[a]ll disciplinary records contained in any law enforcement agent’s personnel file who was present during [a particular] incident.” The custodian identified responsive records, made redactions, and sent them to you for review. You objected to the inclusion of unredacted screenshots of text messages from your personal phone, asserting that they pertained solely to personal matters. The records custodian subsequently redacted portions of the text messages referencing family matters but left the remaining content intact. The records custodian determined that the text messages, as redacted, were subject to release. You have now requested that I review the custodian’s decision regarding the text messages to determine whether that decision is consistent with the FOIA. RESPONSE In my opinion, the custodian’s decision to release the records as redacted is consistent with the FOIA.

Trooper Cade Padgett
Opinion No. 2025-079
Page 2
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 The first two elements appear to be met. The request was made to the Arkansas Department of Public Safety, which is a public entity subject to the FOIA. And the records at issue appear to be public records.2 Because these records are held by a public entity, they are presumed to be public records,3 although that presumption is rebuttable.4 Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the documents’ disclosure. For purposes of the FOIA, employees’ personnel files5 normally contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” Personnel records are records that pertain to an individual employee that were not created by or at the behest of the employer to evaluate the employee.6 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.7 The test for whether these two types of documents may be released differs significantly. Thus, the custodian must first decide whether a record meets the definition of either a “personnel record” or 1 Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515. 2 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). 3 Id. 4 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)). 5 “Personnel files” are not referenced in the FOIA but typically includes the following documents: employment applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health- and life-insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g. Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017). 6 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147. 7 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, at 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-

Trooper Cade Padgett
Opinion No. 2025-079
Page 3
an “employee-evaluation or job-performance record” and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.

2. Personnel records. Under the FOIA, personnel records are open to public inspection except “to
   the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”8 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.9 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.10 First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than de minimis privacy interest.11 If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public’s interest in disclosure.12 Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee’s privacy interests outweigh the public’s interest.13 The fact that the subject of the records may consider the release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.14 Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted.15
3. Classification and disclosure of text messages. The text messages, found on pages 91–92 and
   96–99, are records that pertain to you as an individual employee, and they were not created by or at the behest of your employer to evaluate you as an employee. Therefore, they qualify as “personnel records” under the FOIA. 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. 8 A.C.A. § 25-19-105(b)(12). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins et al., supra note 5, at 208. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. 12 Id. 13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 5, at 207. 15 A.C.A. § 25-19-105(f).

Trooper Cade Padgett
Opinion No. 2025-079
Page 4
Applying this balancing test to the text messages on pages 91-92 and 96-99, I find that the balance weighs in favor of release. The custodian has properly redacted certain discrete pieces of information that are exempt from release under the FOIA.16 None of the remaining information in the text messages gives rise to more than a de minimis privacy interest, although the public does have a significant interest in the content of the text messages.17 Because the public’s interest in disclosure outweighs your privacy interest in the text messages, the custodian’s decision to release the records is consistent with the FOIA. Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve. Sincerely, TIM GRIFFIN Attorney General 16 See Ark. Att’y Gen. Ops. 2021-090, 2015-003 (opining that “information about marital status and family life” must be redacted under A.C.A. § 25-19-105(b)(12)’s “clearly unwarranted invasion of personal privacy” standard). 17 I will note that the text messages are also referenced in your employee-evaluation records, although you do not object to the release of those records.