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
Mr. Ryan Hauck works for Experience Fayetteville under the Fayetteville Advertising and Promotion Commission. The commission received a FOIA request for records relating to his employment, and the custodian identified three anonymous complaints from other employees about Hauck's conduct. The custodian classified them as personnel records and decided to release them. Hauck objected and asked the AG to review.
The AG agreed with the custodian. Two findings drive the conclusion.
First, the complaints are personnel records, not evaluation records. The Thomas v. Hall definition of an evaluation record requires that the record be (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) detail the employee's performance. A complaint filed by a coworker fails the first element because the coworker, not the employer, created it. The AG cited a decade of opinions making this point: a coworker's complaint about a public employee is a personnel record. And critically, "It is not transformed into an employee-evaluation or job-performance record by virtue of a subsequent investigation." Even if the city later opens an investigation, the original complaint remains a personnel record.
Second, the personnel-records balancing test cuts toward release. The Young v. Rice test asks first whether the record contains information of a personal or intimate nature giving rise to a more-than-de-minimis privacy interest. If the privacy interest is minimal, the records are released without going further. The AG looked at the three complaints and found nothing of a personal or intimate nature. So step one of the balancing fails, and the records go out.
Hauck's preference for confidentiality does not change the result because the privacy test is objective.
What this means for you
If you are a public employee who has been complained about
Anonymous complaints filed by coworkers are personnel records and are typically releasable, even if the agency later investigates. The investigation may itself produce evaluation records, but the original complaints are personnel records throughout. If you want to keep them sealed, you need to identify content that gives rise to a more-than-de-minimis privacy interest under Young v. Rice (intimate financial detail, medical information, family-related disclosures). If the complaints are about workplace conduct, that bar is hard to clear.
The AG noted explicitly that your subjective preference for confidentiality is "irrelevant to the analysis because the test is objective." Your discomfort with disclosure does not move the balance.
If you are a records custodian
Classify before you release. A coworker complaint about a public employee is a personnel record, not an evaluation record, even when the agency opens an investigation in response. The investigation may produce evaluation records (interviews with the subject, performance assessments), but the inbound complaint stays a personnel record.
For the balancing test, focus on what is actually in the document. Workplace-conduct complaints rarely contain intimate-nature information. They describe behavior at work, witnessed by coworkers. That is exactly the public-trust content the FOIA was written to surface. Releases generally fit the FOIA's pro-disclosure tilt.
If you are a FOIA requester
The opinion gives you a clean line to cite when an agency tries to withhold complaints by labeling them "investigation records." Cite the AG's repeated holding that "an 'original complaint document' alleging [misconduct] by a coworker 'is not an "employee evaluation/job performance record"' because it 'was not created as part of an investigation into a complaint.'" Subsequent investigation does not change the classification.
If you are an HR administrator or city attorney
Distinguish three categories within a complaint file:
- The original complaint (personnel record, regardless of subsequent investigation).
- The agency's investigative work product, interview notes, summaries, fact-findings (evaluation records, four-element test applies).
- The agency's findings or determinations, disciplinary letters, sustained/unsustained findings (evaluation records, with subdivisions in case the discipline is reasons-included or not).
Train custodians on the three-bucket distinction. The most common mistake is treating the entire complaint file as one classification.
Common questions
Why isn't a complaint about an employee an evaluation record?
Because the complaint was not created by or at the behest of the employer to evaluate the employee. The employee's coworkers wrote the complaints. The first element of the Thomas v. Hall definition fails. Once that element fails, the personnel-records test applies regardless of what comes later.
What if the agency investigates the complaint? Doesn't that turn it into an evaluation record?
No. The AG has a long line of opinions (2001-123, 2000-166, 98-130, 98-001, 96-257) holding that a complaint by a third party is not transformed by a subsequent investigation. The investigation may produce its own evaluation records, but the original complaint remains a personnel record.
The complaints are anonymous. Doesn't anonymity change the analysis?
The AG did not separately address anonymity, but the rule applies the same way. Anonymity is a fact about the author, not about whether the record is "created by or at the behest of the employer." It does not change the classification.
What if releasing the complaints embarrasses me?
Embarrassment is not the test. The personnel-records test asks whether disclosure would be a "clearly unwarranted invasion of personal privacy." That test is objective and weighted toward disclosure. Embarrassment alone does not constitute the kind of intimate privacy interest the FOIA protects.
What types of complaint content might trigger redaction or withholding?
Information of a personal or intimate nature embedded in the complaint. Examples could include: discussion of the subject's medical condition, references to the subject's family or marital problems, account of the subject's intimate financial affairs, information that would expose the complainant in a way that is itself protected. Workplace-conduct complaints rarely include such content; if they do, the custodian redacts those discrete items rather than withholding the whole complaint.
What would shift the analysis if the complainant was the supervisor instead of a coworker?
A supervisor's complaint or evaluation made at the behest of the employer to assess the employee is an evaluation record. The classification is driven by who created it and why, not by where it sits in the file. A supervisor's memo to HR documenting the employee's conduct could be an evaluation record, while a coworker's email complaining about that same conduct is a personnel record.
Does this rule apply outside city/county tourism commissions?
Yes. The rule applies to every public entity covered by the Arkansas FOIA. The Fayetteville A&P Commission was the entity in this case, but the legal analysis is generic to FOIA classification.
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.
Definition of evaluation record (Thomas v. Hall). An evaluation record is one (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance on the job. All three required.
Coworker complaints fail element one. A complaint by a coworker is created by the coworker, not by the employer. Even if the employer requested complaints generally or established a complaint-receiving channel, the inbound complaint itself is not authored at the behest of the employer in the evaluative sense. AG opinions 98-001 and 2001-123 collect the rule.
Subsequent investigation does not transform classification. The AG has consistently held that an investigation triggered by a complaint produces its own records, but does not retroactively change the classification of the original complaint. AG opinions 2001-123, 2000-166, 98-130, 98-001, 96-257.
Young v. Rice balancing test. For personnel records, two-step balancing. Step one: is there a more-than-de-minimis privacy interest in the content? If no, release. Step two: if yes, is that privacy interest outweighed by the public's interest in disclosure (with the scale tipped toward disclosure)?
Personal contact information redaction. Section 25-19-105(b)(13) automatically redacts personal phone numbers, personal email addresses, and home addresses of public employees within otherwise releasable records. Custodians should run that redaction pass before release even when the underlying record is a personnel record going out under Young v. Rice.
Subject's preferences are not the test. AG opinions 2016-055, 2001-112, 2001-028, and 94-198 collect the rule that the privacy test is objective; the subject's view is irrelevant.
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)(12) (personnel-records balancing test)
- A.C.A. § 25-19-105(b)(13) (personal contact information redaction)
- A.C.A. § 25-19-105(c)(1) (four-element evaluation-records test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG review authority)
- A.C.A. § 25-19-105(f) (redaction within 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:
- 2001-123, 98-001 (records not created by or at the behest of the employer are personnel records)
- 98-001 (original complaint document by coworker is not an evaluation record)
- 2001-123, 2000-166, 98-130, 98-001, 96-257 (subsequent investigation does not transform classification)
- 2016-055, 2001-112, 2001-028, 94-198 (subject's preference irrelevant; objective test)
- 2012-068, 2005-030 (advertising and promotion commission as public entity subject to FOIA)
- 2015-072, 99-147 (definition of personnel record)
- 2015-057, 2009-067, 2006-038, 2003-073, 95-351, 93-055 (definition of evaluation record)
Source
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
- 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.
- 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.
- 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