I'm a Conway police officer. I was terminated, I'm appealing it to the Civil Service Commission, and the city wants to release a big stack of records about my case. Can they?
Plain-English summary
Conway Police Officer Brittany Byrd was terminated and is appealing her termination to the Conway Civil Service Commission. While the appeal is pending, the City of Conway received a FOIA request for "any and all documents the city and its Civil Services Commission has regarding the Brittany Byrd investigation and documents used during her hearing." The custodian provided a stack of records and said it intended to release them. Officer Byrd asked the AG to review.
The AG's analysis turned on element two of the four-element test: administrative finality. Because Byrd's termination was being appealed and could still be reversed by the Civil Service Commission, the termination was not administratively final. That alone defeats the release of any evaluation record about her, no matter how strong the public interest.
The AG then walked through the records bucket by bucket.
Personnel records (releasable, with redactions). Text messages between Byrd and others (mixed records when other public employees are involved). Shift lineups. Administrative-inquiry notice letters. Training certificates and coursework certificates. Lists of witnesses' work assignments. Civil Service Commission meeting agendas listing her hearing. Some legal filings (motions in limine, joint stipulations) that pertain to her without being evaluation records. Witness lists. The custodian must redact private phone numbers and addresses of public employees that appear on those records.
Evaluation records (withheld during appeal). Investigative records into Byrd's alleged misconduct (records that would normally pass the four-element test, but cannot now because finality is missing). Any records generated to evaluate her response to the underlying incident. The Internal Affairs file beyond the original complaint. Records from the workplace investigation that detail her performance or lack of performance.
Surprising bucket: favorable records also withheld. Reports detailing her commendable actions, memoranda recommending her for the Medal of Valor, and award records were going to be released. The AG said no. Commendations are evaluation records (created by or at the behest of the employer to evaluate the employee). They follow the four-element test, and during the pending appeal they cannot be released. Important caveat: under section 25-19-105(c)(2) Officer Byrd has access to her own records and can release favorable ones if she chooses. The custodian cannot.
Outside scope. Departmental policies, training materials, city ordinances, event flyers, photographs of the park, Motorola data sheets, scribbled notes, and similar non-employment records are neither personnel records nor evaluation records. The AG can review only personnel and evaluation records under section 25-19-105(c)(3)(B)(i), so it took no position on those.
What this means for you
If you are an officer in a pending civil service appeal
Your investigative file is generally protected from FOIA disclosure during the appeal. The administrative-finality element of the four-element test is not met. That holds whether the records are bad for you (the IA notes, the disciplinary recommendation) or good for you (commendations, awards). Both are evaluation records, both wait for finality.
If you want favorable records out during the appeal (for instance, to push back on a public narrative), use your section 25-19-105(c)(2) right to access your own records and release them yourself. The custodian cannot do that for you, but you can.
Don't, however, assume that all records in the file are evaluation records. Text messages you sent, training certificates you earned, and routine administrative records about you remain personnel records and may be releasable under the personnel-record balancing test even during the appeal.
If you are a records custodian
The single biggest mistake highlighted here is mis-classifying favorable records. Custodians sometimes assume that releasing commendations, awards, and Medal of Valor recommendations is harmless because the records are positive. That assumption skips the classification step. Commendations created by the employer to evaluate the employee are evaluation records. The four-element test applies to them just as it does to disciplinary investigative notes.
For records mixing the subject's records with other employees' records, you have a notice obligation under section 25-19-105(c)(3)(A): notify any public employee whose records are also implicated and apply each test (personnel or evaluation) to each portion.
For ambiguous records (a photograph showing GPS points, a text message of unclear context), the AG's pattern is to ask: was this generated by or at the behest of the employer to evaluate the employee? If yes (or you cannot rule it out), classify as evaluation record and apply the four-element test. If no, classify as personnel record (or as outside the FOIA scheme entirely).
If you are a FOIA requester
A pending civil service appeal is a brick wall for evaluation records. You can wait and re-file once finality is reached, or you can structure your request narrowly to pull personnel records that are not affected by the finality issue (text messages, training records, some legal filings). The AG's category-by-category breakdown in this opinion is a useful template for narrowing future requests.
If you are a Conway Civil Service Commission member or counsel
Note the bright line at administrative finality. Until your commission resolves the appeal, the underlying evaluation records cannot be released to the public. That is a feature, not a bug. It protects the integrity of the appeal and the rights of the appealing officer. Plan timelines accordingly.
Common questions
Why does my pending civil service appeal block release of evaluation records?
Element two of the four-element test under section 25-19-105(c)(1) requires that the suspension or termination be "administratively final," meaning it cannot be reversed or modified through an administrative process. A pending Civil Service Commission appeal can reverse the termination, so the discipline is not yet final. Without finality, the test fails and evaluation records cannot be released.
My commendation letter is great for me. Why can't the city release it?
Because commendations are evaluation records. The same four-element test applies whether the record is favorable or unfavorable. Section 25-19-105(c)(2) gives you the right to access your own records and release them yourself, but the city's hands are tied during the appeal.
What about my training certificates? Aren't those also "evaluations"?
No. Training certificates and coursework records are personnel records. They confirm that you completed certain training; they do not detail your performance on the job. The AG draws this line consistently in opinions like 2025-049 and 2002-252.
Are text messages between me and other officers releasable?
Generally yes, if they qualify as public records. Section 25-19-103(14)(A) defines public records as documents that "constitute a record of the performance or lack of performance of official functions" by a public employee. If a text relates to police duties, it is a public record. If it does, it's likely a personnel record (if it pertains to you and was not created to evaluate you). The custodian then applies the personnel-records balancing test. If the texts also pertain to other public employees, they are mixed records and the custodian must run the analysis for both.
The witness list has phone numbers. Why redact?
Section 25-19-105(b)(13) exempts personal phone numbers, personal email addresses, and home addresses of public employees from disclosure even when otherwise embedded in releasable records. If the witnesses are public employees and the listed phone numbers and addresses are personal (not work), the custodian must redact.
The custodian wants to release training materials and city ordinances. Are those personnel records?
No. Training materials, ordinances, event advertisements, departmental rules and policies, and similar generic public records are not personnel records or evaluation records. They sit outside the AG's review under section 25-19-105(c)(3)(B)(i). The AG took no position on whether they should be released. The custodian must analyze them under whatever other FOIA provisions apply.
Bodycam or vehicle-camera photos could be either personnel or evaluation records. How does the custodian decide?
By looking at why the records were generated and what they show. If the cameras captured Byrd performing her duties and were collected to evaluate her conduct (for instance, as part of the IA file), they are evaluation records. If they document something else (a separate event, traffic patterns) and were not evaluative, they may be personnel records, public records, or neither. The custodian needs to understand the chain of creation, not just the visual content.
What's the section 25-19-105(c)(2) right that lets me release my own records?
That subsection gives a public employee access to records about themselves. Once you have access, you can do what you want with them, including making them public. The catch is that the right is yours, not the public's. The custodian cannot release your evaluation records during a pending appeal, but you can release the favorable ones if you choose.
Background and statutory framework
Two-test split. Personnel records (Young v. Rice balancing under section 25-19-105(b)(12)) versus evaluation/job-performance records (four-element test under section 25-19-105(c)(1)). Classification first, then apply the right test.
Administrative finality is the choke point during appeals. The four elements of section 25-19-105(c)(1) are: (1) suspension or termination, (2) administrative finality, (3) relevance, (4) compelling public interest. Pending civil service appeals defeat element two because the discipline can still be reversed. AG opinions 2008-065 and 2023-120 illustrate the pattern.
Commendations are evaluation records. AG opinions 2025-003, 2024-074, 2008-135, 2006-176, 2003-153, 89-368 collect the line: "[c]ommendations written by or at the behest of the employer constitute an employee's evaluation or job performance records." This is true whether the commendation is positive (Medal of Valor recommendation) or negative (PIP, reprimand).
Investigative photographs and videos. Records generated as part of an investigation into an employee's alleged misconduct are evaluation records. Records that exist independently of the investigation may be personnel records, public records of a different kind, or outside the FOIA scheme.
Mixed records. Records pertaining to multiple employees require a per-employee analysis (and per-employee notice under section 25-19-105(c)(3)(A)). Each portion gets the test that applies to that employee.
Right of self-access. Section 25-19-105(c)(2) gives each public employee access to their own records. Once accessed, they can release the records as they see fit. This rule mitigates the harshness of withholding favorable evaluation records during a pending appeal.
Witness contact information. Section 25-19-105(b)(13) automatically redacts personal phone numbers, personal email addresses, and home addresses of public employees from otherwise releasable records.
Out-of-scope records. Section 25-19-105(c)(3)(B)(i) limits AG review to personnel records and evaluation records. Records that are neither (departmental policies, ordinances, training materials, public photographs) sit outside that review.
Citations
Statutes:
- A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (definition of public records)
- A.C.A. § 25-19-105(b)(11) (personal identification numbers used for computer security)
- A.C.A. § 25-19-105(b)(12) (personnel-records balancing test)
- A.C.A. § 25-19-105(b)(13) (personal contact information of public employees)
- A.C.A. § 25-19-105(c)(1) (four-element evaluation-records release test)
- A.C.A. § 25-19-105(c)(2) (employee right to access own records)
- A.C.A. § 25-19-105(c)(3)(A) (notice to subject employee)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG review authority limited to personnel and evaluation records)
- A.C.A. § 25-19-105(f) (redaction within otherwise releasable records)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- 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)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
Other AG opinions referenced (selected):
- 2025-003, 2024-074, 2008-135, 2006-176, 2003-153, 89-368 (commendations as evaluation records)
- 2008-065 (general application of four-element test)
- 99-016 (positive and negative evaluation records both subject to four-element test)
- 96-005 (officer not suspended/terminated, awards not subject to disclosure)
- 2025-049, 2002-252 (training and certifications as personnel records)
- 2006-035, 2003-153 (SSN redaction within releasable records)
- 2024-067, 2007-311, 2004-178 (records generated by or at behest of employer to evaluate)
- 2023-071, 2023-013, 2014-129, 2006-026 (compelling public interest in law enforcement records)
- 2024-063, 2023-096, 2014-110 (administrative non-disciplinary notice as personnel record)
- 2006-182 (rule that favorable evaluation records held back from custodian release, but employee can release them under (c)(2))
- 2020-037 (mixed records analysis)
- 2024-095, 2022-006 (city as public entity subject to FOIA)
Source
Original opinion text
Opinion No. 2025-089
September 9, 2025
Officer Brittany Byrd
Email: [email protected]
Dear Officer Byrd:
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.
Your correspondence states that you were recently terminated from the Conway Police Department and that there is currently an appeal of your termination before the Conway Civil Service Commission. You also indicate that the City of Conway received a FOIA request for "any and all documents the city and its Civil Services Commission has regarding the Brittany Byrd investigation and documents used during her hearing." The records custodian has provided copies of the records she intends to release, and you have requested that I review the custodian's decision to determine whether it is consistent with the FOIA.
RESPONSE
I have no information regarding how the custodian has classified the records intended for release, and for many of the records, I have no contextual background information, such as who created the records, why the records were created, or who is being referred to in the records. As a result, my analysis is limited to the face of the records. But if any of the records were created by or at the behest of your employer to evaluate you, or if they were generated while investigating allegations of misconduct and detail incidents that gave rise to the allegations, those records constitute evaluation records, and they are exempt from release.
That said, the custodian's decision to release the records provided for my review appears to be mostly consistent with the FOIA. I believe the custodian has incorrectly decided to release reports detailing your commendable actions, memorandums recommending you for the Medal of Valor, and records documenting your awards. These are your evaluation records, and because at least two of the four elements required for the release of evaluation records are absent, these records are exempt from release. Additionally, some of the records intended for release include the phone numbers and addresses of witnesses. If these witnesses are public employees and if the information provided constitutes their personal contact information, this information must be redacted before the records can be released. Finally, many of the records I have received, such as city ordinances, event advertisements, and departmental rules and policies, are neither personnel records nor employee-evaluation records. Consequently, they are outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B)(i).
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 City of Conway, 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 to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the records' disclosure.
For purposes of the FOIA, employees' personnel files 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. 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. Thus, the custodian must first decide whether a record meets the definition of either a "personnel record" or 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.
- 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 de minimis privacy interest. 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.
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. 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 pieces of information that must be redacted, such as personal contact information of public employees (including personal phone numbers, email addresses, and home addresses); employee personnel numbers or identification codes; dates of birth of public employees; social security numbers; insurance coverage; tax information or withholdings; and banking information.
- Employee-evaluation records. The exception for employee-evaluation records includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. And this office has consistently opined that a termination letter qualifies as an evaluation record when it states the grounds for the termination.
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 (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
- The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).
In your case, you have been terminated, but because that decision is currently being appealed before the Conway Civil Service Commission, there has not been a final administrative resolution to the termination. As a result, the second prong of the test has not been met, so none of your evaluation records are releasable.
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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, the custodian should apply the applicable tests for disclosure to that portion of the record. Furthermore, A.C.A. § 25-19-105(c)(3)(A) requires that any public employee whose records are sought under the FOIA must be notified of that request. Thus, if an entire record is requested, such that portions pertaining to other employees cannot be excised, those employees will need to be notified of the FOIA request as well.
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Application. As an initial matter, I must note that I do not know how the custodian has classified the records she intends to release. And for many of the records, I have no contextual background information, such as who created the records, why the records were created, or who is being referred to in the records. As a result, my analysis is based on the face of the records alone. But I must stress that if any of the records were created by or at the behest of your employer to evaluate you, or if they were generated while investigating allegations of misconduct and detail incidents that gave rise to the allegations, those records constitute evaluation records, and they should not be released under the above test.
5.1 Text messages. There are screenshots of text messages between you and other individuals. These records appear to be your personnel records because they pertain to you but were not created by or at the behest of your employer to evaluate you. To the extent that the other individuals on the text messages are public employees, the screenshots are mixed records, constituting their personnel records as well. Nothing in the screenshots suggests that their release would constitute an unwarranted invasion of personal privacy. Thus, they are releasable under the balancing test for personnel records.
5.2 Blue divider 33. There are photographs that appear to be of a vehicle camera or body camera. These photographs do not appear to be employment records, but as explained above, if these photographs were generated by or at the behest of your employer as part of an investigation into your alleged misconduct, they should be withheld under the exemption for job performance records.
5.3 Blue dividers 35, 36, 38, and 41. These documents appear to contain lists of files, including a list of officer interviews and a list of officer GPS data. If these lists were created as part of an investigation into your alleged misconduct, they are exempt from release. But if they were not created as part of the investigation, they are the personnel records of the listed employees. And because there is nothing in the records that, if released, would constitute an unwarranted invasion of personal privacy, these records, if personnel records, are subject to release.
5.4 Blue divider 37. These records contain the shift lineups of officers on a particular weekend. These records are mixed records, constituting the personnel records of all the listed officers. Under the test for personnel records, they appear to be releasable.
5.5 Blue divider 43. These records appear to be investigative records that were created to evaluate officer responses to the incident giving rise to allegations of misconduct. If that is the case, these records are best classified as evaluation records, and they may not be released because the second prong of the test for release of evaluation records, administrative finality, has not been met.
5.6 Blue divider 46. This record consists of call notes that detail communications with officers during the incident. The notes appear to have been taken contemporaneously with the communications, rather than after the incident as part of an investigation. As such, I believe the notes are best classified as the personnel records of the officers mentioned in the notes. Nothing in the record suggests that its release would constitute an unwarranted invasion of personal privacy, so it is subject to release under the personnel records balancing test.
5.7 Blue divider 47. These records are correspondence from you and your attorney to the Conway City Attorney. They are best classified as your personnel records, and they appear to be releasable under the balancing test for personnel records.
5.8 Tab 8. These records include a criminal information sheet, affidavit and request for misdemeanor warrant, order for appointment of a special prosecutor, a no-contact order, an email, and records relating to an administrative inquiry into another officer. These records are mixed records because they pertain to multiple officers. The only record in Tab 8 that pertains to you is the email correspondence. This email is your personnel record, and it is the personnel record of the other officer mentioned. Nothing in the record suggests that its release would be an unwarranted invasion of privacy. Thus, the email is disclosable. With respect to the rest of the records in Tab 8, which do not pertain to you, the records custodian must identify which of the named individuals are public employees and then apply the applicable tests for disclosure to those records.
5.9 Tab 9. Two of the records in Tab 9 pertain to another officer. They include a letter of suspension and a summary of the investigation into the events that led to the suspension. Because that officer was suspended, the records pertain to the suspension, and they reflect policy violations, which usually constitutes a compelling public interest, three of the four prongs for release of evaluation records have been met. If the suspension is also administratively final, these two records are releasable under the test for evaluation records. Three emails make up the remaining records in Tab 9. They are mixed personnel records because they pertain to you and to other public employees. Under the balancing test for personnel records, these emails are releasable.
5.10 Tab 10. These records provide you with notice of an administrative inquiry. They are purely administrative and non-disciplinary in nature. As a result, they are personnel records that should be released.
5.11 Tabs 13 through 22. These documents consist of a single sheet of paper with an officer name followed by the words, "Bodycam & Dashcam." These records contain no other information. As such, they are the personnel records of the individual officers, and they are subject to release under the balancing test.
5.12 Witness list. This record lists all the individuals who are scheduled to testify at an upcoming hearing or hearings. While the record describes the topics about which the individuals plan to testify, it does not contain their testimony or suggest what they will say. As a result, the record appears to be a personnel record. The witness list also contains the address and phone numbers of the witnesses, some of whom are public employees. To the extent that the addresses and phone number provided are the private addresses and phone numbers of the employees, that information must be redacted before the record can be released.
5.13 Awards, commendable action reports, certificates, memorandums, and incident report. These records consist of awards bestowed upon you, reports detailing your commendable actions, training and technical certificates, certificates for completing certain coursework, memorandums recommending you for the Medal of Valor, and an incident report.
The custodian's decision to release the reports detailing your commendable actions, the memorandums recommending you for the Medal of Valor, and the awards you have received is not consistent with the FOIA. Commendations written by or at the behest of the employer constitute an employee's evaluation or job performance records. Such records are not disclosable unless all four factors necessary for the release of job performance records have been met. Because your termination is not final and because your commendation records did not form the basis for the termination, the custodian may not release these records. As this office has previously noted, the result of A.C.A. § 25-19-105(c)(1) is that certain records reflecting unfavorable job performance may be released, but documents reflecting favorable job performance must be withheld. However, this rule is mitigated by the fact that employees have access to their own personnel records under A.C.A. § 25-19-105(c)(2), and they may release any favorable records if they choose to do so.
Conversely, the certificates reflecting that you have completed certain training and coursework are personnel records. They are subject to disclosure under the FOIA. The incident report is also a personnel record subject to release, and the custodian has correctly redacted social security numbers that appear on the report.
5.14 Photo exhibit #2. The first record in this group is a photo of a city park with points plotted around the photograph. I do not know if the plotted points were created by or at the behest of the city to evaluate an employee, making them evaluation records; whether they pertain to an employee but are not evaluative, making them personnel records; or whether they are unrelated to public employees altogether, making the photograph simply a public record. As a result, I cannot opine on whether the custodian's decision to release this photograph is consistent with the FOIA.
The other two records in this group are Civil Service Commission meeting agendas. These agendas are public records, and they also form your personnel records because your hearing is listed as an item on both agendas. Under the personnel records balancing test, both agendas are releasable.
5.15 Legal filings. Several legal filings also appear among the records the custodian plans to release. These include Joint Stipulations of Fact and Disclosure of Witnesses and Exhibits; Petitioner's Motion in Limine, Supplemental Brief, and email; Respondent's Motion in Limine and email; and Petitioner's Response to Motion in Limine and email. While these records do not meet the definition of evaluation records, some of them pertain to you and to other officers and can thus be classified as mixed personnel records. Certain information, like the personal contact information of public employees that may appear on the witness list, must be redacted before the records can be released. Whether any other exemptions apply to these records to prevent their release is outside the scope of my review.
5.16 Public records unrelated to employment. Finally, because the custodian has provided me with all of the records she intends to release, many of the records I have received are neither personnel records nor employee-evaluation records. These include photographs of the park and surrounding areas, event applications, event advertisements, Conway Police Department rules and policies, city ordinances, and data sheets from Motorola Solutions. I lack the authority under A.C.A. § 25-19-105(c)(3)(B)(i) to review the custodian's decision to release these records.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General