Three coworker complaints have been filed against me, and now they're being released under FOIA. Aren't those internal investigation records? Can I block release?

Plain-English summary

The Fayetteville Advertising and Promotion Commission received a FOIA request for records about Ryan Hauck’s employment with Experience Fayetteville. The custodian identified three anonymous complaints from other employees, classified them as Hauck’s personnel records, and intended to release them.

The AG agreed with both the classification and the release decision. The complaints were personnel records because they were not created by or at the behest of the employer to evaluate Hauck. The AG also said a coworker’s complaint is not transformed into an employee-evaluation or job-performance record by a later investigation.

The complaints were subject to the personnel-record privacy analysis. The AG found that they contained no information of a personal or intimate nature that would create the privacy interest required to withhold them. The custodian’s decision to release the documents was therefore consistent with the FOIA.

What this means for you

If you are the employee named in a coworker complaint

For the three complaints reviewed in this opinion, the AG treated the documents as personnel records because they were not created by or at the behest of the employer to evaluate the employee. The AG found no personal or intimate information in those complaints and agreed that they could be released.

The opinion also says that a later investigation does not by itself change the classification of the original coworker complaint. The analysis remains focused on how the complaint was created and what it contains.

If you are a records custodian

Classify the document before applying the disclosure test. The AG classified the three complaints as personnel records because they related to the employee but were not created by or at the behest of the employer to evaluate the employee. For those records, the custodian must assess whether disclosure would be a clearly unwarranted invasion of personal privacy.

The AG found no personal or intimate information in the complaints reviewed. Any discrete information requiring redaction remains subject to the FOIA’s redaction rules.

If you are reviewing a FOIA request for workplace complaints

The opinion addresses the three anonymous coworker complaints before the AG. It holds that a coworker complaint is not transformed into an evaluation record by a subsequent investigation. The opinion’s release conclusion rests on the contents of these complaints and its finding that they contained no personal or intimate information.

Common questions

Why were the complaints classified as personnel records?
The AG said they related to the employee but were not created by or at the behest of the employer to evaluate the employee.

Does a later investigation turn the original complaint into an evaluation record?
No. The AG said a coworker’s complaint is not transformed into an employee-evaluation or job-performance record by virtue of a subsequent investigation.

Why did the AG agree that the complaints could be released?
The AG found that the complaints did not contain information of a personal or intimate nature that would create the privacy interest required for withholding under the personnel-records test.

Did the AG decide that every workplace complaint must be released?
The opinion concerns the three complaints presented for review. It applies the personnel-record classification and privacy analysis to those documents and does not make a categorical ruling about every complaint or every investigative record.

Does the employee’s objection to release control the result?
No. The AG said the subject’s view that release would invade personal privacy is irrelevant because the privacy test is objective.

Background and statutory framework

The FOIA analysis first asks whether the request was directed to a public entity, whether the document is a public record, and whether an exemption applies. The AG said those first two elements appeared to be met for the Fayetteville Advertising and Promotion Commission.

The opinion distinguishes personnel records from employee-evaluation or job-performance records. Personnel records concern an individual employee but were not created by or at the employer’s behest to evaluate the employee. Evaluation records are created by or at the employer’s behest to evaluate the employee and detail the employee’s performance or lack of performance.

Personnel records are open unless disclosure would be a clearly unwarranted invasion of personal privacy. The AG described a two-step analysis: determine whether the information is personal or intimate enough to create more than a minimal privacy interest, then weigh that interest against the public interest in disclosure. The AG found no personal or intimate information in the three complaints and concluded they should be released.

Citations

Statutes:

• A.C.A. § 25-19-103(14)(A)
• A.C.A. § 25-19-105(b)(12)
• A.C.A. § 25-19-105(b)(13)
• A.C.A. § 25-19-105(c)(1)
• A.C.A. § 25-19-105(f)

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)

Source

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

Original opinion text

Opinion No. 2025-091
September 16, 2025

Mr. Ryan Hauck
Via email only: [email protected]

Dear Mr. Hauck:

You have requested an opinion from this office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the subject of the records, is based on A.C.A. § 25-19-105(c)(3)(B)(i). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

According to correspondence sent to our office, the Fayetteville Advertising and Promotion Commission has received a FOIA request for certain records relating to your employment with Experience Fayetteville. The custodian has identified three anonymous complaints from other employees regarding your conduct that are responsive to the request. The custodian has classified the complaints as your personnel records and intends to release them. You object to the release of the records, and you ask if the custodian's decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian has correctly classified the three complaints as your personnel records because they were not created by or at the behest of the employer. And the custodian's decision to release those records is also consistent with the FOIA because disclosure would not constitute a clearly unwarranted invasion of your personal privacy.

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.

The first two elements appear to be met. The request was made to the Fayetteville Advertising and Promotion Commission, a public entity subject to the FOIA. And the records at issue appear to be public records. Because these records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. I have no information to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the documents' disclosure.

For FOIA purposes, documents in a public employee's file can usually be divided into two distinct groups: "personnel records" and "employee evaluation or job performance records." Personnel records are records that pertain to an individual employee that were not created by or at the behest of the employer to evaluate the employee. Employee evaluation and job-performance records, on the other hand, are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job.

The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a "personnel record" or an "employment evaluation or job performance record" and then apply the appropriate test for that record to determine whether the record should be released under the FOIA. In this instance, it is apparent that the records at issue are properly classified as personnel records. I will, therefore, limit my discussion to records of that type.

2. Personnel records. A personnel record is open to public inspection except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court has provided some guidance. In Young v. Rice, the Court applied a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing test, which takes place "with the scale tipped in favor of public access," has two steps.

First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. If the privacy interest is minimal, then disclosure is required. Second, if the information gives rise to a greater than minimal privacy interest, then the custodian must determine whether that privacy interest is outweighed by the public's interest in disclosure.

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee's privacy interests outweigh the public's interests. The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that must be redacted. For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses.

3. Application. The records at issue are best classified as personnel records because they were not created by or at the behest of the employer to evaluate you. A coworker's complaint about a public employee is a personnel record. It is not transformed into an employee-evaluation or job-performance record by virtue of a subsequent investigation. Here, the custodian has correctly classified the anonymous complaints as personnel records because the documents relate to you but were not created by or at the behest of the employer to evaluate you.

As personnel records, these documents are subject to release unless they contain information of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. The anonymous complaints do not contain any information of a personal or intimate nature and, therefore, should be released. Thus, the custodian's decision to release the documents is consistent with the FOIA.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General

1. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2. E.g., Ark. Att’y Gen. Ops. 2012-068, 2005-030.
3. 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.
4. Id.
5. 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)).
6. A.C.A. § 25-19-105(b)(12) (“It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter … [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy”).
7. Id. § 25-19-105(c)(1) (“[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure”).
8. See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
9. 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, 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee-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.
10. A.C.A. § 25-19-105(b)(12).
11. 308 Ark. 593, 826 S.W.2d 252 (1992).
12. John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
13. Young, 308 Ark. at 598, 826 S.W.2d at 255.
14. Id.
15. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
16. E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 12, at 207.
17. A.C.A. § 25-19-105(f).
18. See id. § 25-19-105(b)(13).
19. See, e.g., Ark. Att’y Gen. Ops. 2001-123, 98-001.
20. Ark. Att’y Gen. Op. 98-001 (opining that an “original complaint document” alleging sexual harassment by a coworker “is not an ‘employee evaluation/job performance record’” because it “was not created as part of an investigation into a complaint”).
21. Ark. Att’y Gen. Ops. 2001-123, 2000-166, 98-130, 98-001, 96-257.