I'm the same Conway officer in opinion 2025-089 and someone made a separate, broader FOIA request listing ten categories of records about me. The custodian gave me his planned answers for each category. Are they right?

Plain-English summary

The Conway Police Department got a separate, broader FOIA request listing ten specific categories of records about Officer Brittany Byrd. (Opinion 2025-089 had handled the first request; this is the follow-on.) The custodian had not yet seen the records but listed his planned response for each category, and Byrd asked the AG to review the planned response.

The AG framed the analysis using the same two-test split: personnel records versus evaluation records, with the four-element test for evaluations and the Young v. Rice balancing for personnel. Because Byrd's termination was on appeal to the Conway Civil Service Commission, administrative finality (element two) was missing, so any evaluation records about her termination were sealed.

The AG worked through each of the ten categories:

1. Complete personnel file. Mixed bag. The file likely contains both personnel records and evaluation records. The custodian must classify document by document. Personnel records release with redactions; evaluation records related to the termination stay sealed.

2. Materials related to incidents resulting in disciplinary action. Broad request. If the responsive records are evaluation records (generated to investigate alleged misconduct), they fail the four-element test because finality is missing. The custodian's plan to withhold is consistent with FOIA on that assumption.

3. Records confirming disciplinary action. Same analysis as 2. If evaluation records, withhold during appeal.

4. Investigative files related to in-custody deaths. This category needs careful sorting. Some records may be evaluation records (created to investigate Byrd's conduct in connection with deaths) which fail the four-element test during appeal. Others may be personnel records or unrelated public records. The custodian must apply the right test to each record.

5. Case file materials involving Byrd. Same as 4. Evaluation records related to the termination stay sealed.

6. Policies, directives, training materials on chain of command. Likely not personnel or evaluation records, so outside AG review.

7. Training materials on positional asphyxiation attended by Byrd. Training materials themselves are not personnel records. Attendance records may be personnel records (then balancing test applies).

8. Active shooter training materials. Same analysis as 7.

9. Garrity-interview Internal Affairs case identifiers and the original complaint. Records generated by or at the behest of the employer to investigate a complaint against an employee are evaluation records. The case identifiers fall there; they cannot be released because finality is missing. But the original complaint, when generated by an unaffiliated third party, is a personnel record, and a subsequent investigation does not transform that classification. The AG noted that the public's interest in knowing whether a police officer abused public trust likely outweighs Byrd's privacy interest in the original complaint, so release is consistent with FOIA.

10. Emails, call logs, text messages during work hours. Not automatically public records just because they occurred during work hours. Each must be tested under the FOIA's definition of public record (must "constitute a record of the performance or lack of performance of official functions"). If a particular communication does qualify, it is likely a personnel record (assuming it pertains to Byrd as employee, not created to evaluate her), then the balancing test applies. Mixed records require notice to other affected employees.

What this means for you

If you are an officer in a pending disciplinary appeal

The same finality bar from opinion 2025-089 applies here. Evaluation records cannot be released while your appeal is alive. But notice that not everything in a "discipline-related" file is an evaluation record:

• The original complaint that triggered the investigation, if filed by a third party not at the behest of the employer, is a personnel record. It can be released.
• Communications and emails during work hours are tested individually for public-record status; not all are public records, and the ones that are typically classify as personnel records.
• Training and policy materials are usually not personnel records or evaluation records at all.

So even if you assume the bulk of your evaluation records are protected during appeal, expect some records to come out anyway under the personnel-records framework.

If you are a records custodian processing a multi-category request

This opinion gives you a great template for breaking apart broad FOIA requests. Don't treat a "give me everything about employee X" request as a single yes/no question. Decompose it:

1. List each category the requester has identified.
2. For each category, identify which of three buckets the responsive records fall into: personnel records, evaluation records, or public records outside the FOIA's employee-records framework.
3. Apply the right test to each bucket.
4. Document your reasoning so the file shows you did the work.

For Garrity-protected interviews specifically, the case identifiers (case numbers, IA logs, interview summaries) are typically evaluation records. The original complaint is typically a personnel record. Treat them differently.

If you are a FOIA requester chasing law enforcement records

Multi-category requests work better than blanket "give me everything" requests. The AG's category-by-category breakdown rewards specificity. If you can articulate which records you want by type (training, communication, complaint, investigation), the custodian's analysis is easier and your record of what was withheld and why is cleaner.

For records that survive a finality challenge, the original complaint, work-hour communications that meet the public-record definition, training materials: push for release on those even when broader investigative records stay sealed. Cite this opinion's category-by-category approach.

If you are a civil-service-commission attorney or HR

The opinion confirms that the appeal pendency protects evaluation records. Plan your appeal docket so that release of the protected records does not become the de facto pressure point during the case. Once finality is reached (commission decision affirmed and any further administrative steps complete), the four-element test runs without the second-element bar.

Common questions

My personnel file has both kinds of records. Does the custodian have to release the whole thing?
No. The custodian sorts document by document. Personnel records release (with redactions); evaluation records related to your termination stay sealed during the appeal. The result is a partial release, not all-or-nothing.

Does Garrity protection make a difference under the FOIA?
Garrity is a Fifth Amendment doctrine governing whether compelled employee statements can be used in criminal cases. It is mostly orthogonal to FOIA classification. A Garrity-compelled interview is still an evaluation record under the four-element test. Garrity affects what prosecutors can do with the interview content, not whether the FOIA covers it.

The investigation generated emails, texts, and call logs. Are those evaluation records?
It depends. If the communications were created by or at the behest of the employer to evaluate Byrd (interview transcripts, IA notes), yes. If they were Byrd's communications during her duties (her texts to coworkers, calls she made on duty), they get tested individually. The AG flagged that not every work-hour communication is even a "public record" under the FOIA's definition; the test is whether the communication constitutes a record of performance or lack of performance of official functions.

Why is the original complaint releasable but the case identifiers not?
Origin. The original complaint was filed by a third party (someone other than the employer) and was not created at the employer's behest to evaluate Byrd. So the first element of the Thomas v. Hall evaluation-record definition fails, and the complaint is a personnel record. The case identifiers (IA case numbers, the agency's own evaluative records) were generated by the employer to evaluate Byrd. Those satisfy the evaluation-record definition.

The custodian says they haven't seen the records yet. How can they decide?
They can't make a final decision before reviewing the records, but they can publish a category-by-category framework that says "if responsive records of category X are evaluation records, my position is to withhold; if they are personnel records, my position is to release." That framework lets the requester and the AG (and ultimately a court) understand what the custodian intends to do once review is complete. In this opinion, the AG operated with that framework and identified where the custodian's plan was correct under the framework and where additional analysis is required.

What about records that mention other officers?
Mixed records require per-officer analysis. Section 25-19-105(c)(3)(A) also requires notice to any other public employee whose records are sought. The custodian has to identify each affected employee, run the test for each portion, and provide notice.

Does this opinion match opinion 2025-089?
Yes, the underlying framework is the same. Opinion 2025-089 addressed an earlier, narrower request from a different requester (the records the custodian had identified as actually responsive). This opinion 2025-093 addresses a broader ten-category request and runs the same framework against a wider sweep of categories. The legal rules are identical; only the application changes.

Background and statutory framework

Two-test split, again. 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)). Apply each test to its own classification.

Administrative finality during pending appeal. A pending civil service commission appeal of a termination keeps element two of the four-element test from being met. Any evaluation record about that termination stays sealed until finality is reached.

Public-record definition is the gatekeeper for emails and other communications. Section 25-19-103(14)(A) defines public records as those that "constitute a record of the performance or lack of performance of official functions … carried out by a public official or employee." Not every email, text, or call log automatically qualifies. The custodian tests each communication for public-record status before reaching FOIA exemption analysis.

Original complaints as personnel records. AG opinions 2025-059, 2001-123, 2000-166, 98-001, and 96-257 establish that complaints filed by parties unaffiliated with the employer are personnel records and stay personnel records even after the employer opens an investigation.

Garrity-related records as evaluation records. Records generated at the behest of the employer while investigating a complaint against an employee are evaluation records. AG opinions 2025-059, 2007-311, 97-081, and 92-319 collect the rule. Garrity-protected interview content sits in this bucket.

Compelling public interest for police misconduct records. AG opinions 2025-059, 2023-117, 2018-023, and 1998-260 establish that the combination of the FOIA's pro-disclosure tilt and the public-trust nature of policing creates a usually-compelling interest for records that suggest abuse of public office.

Mixed records and notice. Section 25-19-105(c)(3)(A) requires notice to any public employee whose records are sought. Mixed records (records pertaining to multiple employees) require per-employee analysis and per-employee notice.

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)(3)(A) (notice to subject employee)
- 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 (selected):
- 2024-095, 2022-006 (city as public entity subject to FOIA)
- 2025-059, 2007-311, 97-081, 92-319 (records generated by employer to investigate are evaluation records)
- 2004-178 (records generated to investigate as evaluation records)
- 2025-059, 2001-123, 2000-166, 98-001, 96-257 (third-party complaints are personnel records)
- 2006-225, 2006-176, 2003-153 (third-party complaints not transformed by investigation)
- 2025-059, 2023-117, 2018-023, 1998-260 (compelling public interest in police misconduct records)
- 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171 (termination letters with reasons as evaluation records)
- 2008-065 (general application of four-element test)
- 2020-037 (mixed records analysis)
- 2018-084, 2018-083, 2001-080 (information about children/dependents redaction)
- 2022-032, 2014-094, 2007-070 (employee personnel numbers redaction)
- 2016-055, 2001-112, 2001-028, 94-198 (objective privacy test)

Source

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

Original opinion text

Opinion No. 2025-093
September 17, 2025

Officer Brittany Byrd
Via email only: [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.

According to the correspondence provided to this Office, the Conway Police Department received a request for various categories of records pertaining to you. The custodian has indicated which responsive records he intends to release and which he intends to withhold, as summarized below:

1. Complete copy of your personnel file — Intended for release.
2. Materials related to incidents resulting in disciplinary action (including reports, videos, statements, and internal documentation) — Will not be released due to an ongoing civil service hearing.
3. Records confirming disciplinary action — Will not be released due to an ongoing civil service hearing.
4. Investigative files related to in-custody deaths — Intended for release, subject to necessary redactions.
5. Case file materials involving you — Will not be released due to an ongoing civil service hearing.
6. Policies, directives, or training materials on chain of command or senior officer responsibility — Intended for release.
7. Training materials and programs on positional asphyxiation attended by you — Intended for release.
8. Active shooter training materials and programs attended by you — Intended for release.
9. Internal Affairs case identifiers where you were interviewed and placed under Garrity — The custodian intends to release the administrative inquiry number and the original complaint.
10. Emails, call logs, and text messages sent or received during work hours surrounding specific incidents — Intended for release.

The records have not been provided either to you for review or to this Office for examination. You have now requested that I review the custodian's decision regarding the records identified above and determine whether those decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision regarding the release and withholding of records is partially consistent with the FOIA. The requested records fall into several distinct categories, including personnel files, disciplinary and investigative materials, policy documents, training records, and employee communications. Records related to disciplinary actions and internal investigations (Sections 5.1 through 5.5, and 5.9) must first be properly classified as either personnel records or employee-evaluation or job-performance records. Evaluation records related to the subject's termination are not subject to release at this time because the matter is still pending before the Conway Civil Service Commission and has not reached final administrative resolution. Personnel records, by contrast, are subject to release unless disclosure would constitute a clearly unwarranted invasion of personal privacy, and any such records must be reviewed for necessary redactions prior to release.

With respect to the remaining categories, policy documents and training materials (Sections 5.6 through 5.8) are likely not personnel or evaluation records and therefore fall outside the scope of my authority under A.C.A. § 25-19-105(c)(3)(B)(i). As for emails, call logs, and text messages (Section 5.10), these are only subject to disclosure under the FOIA if they qualify as "public records," meaning they reflect the performance (or lack thereof) of official duties by a public employee. If the custodian determines that any of these communications meet that definition, they are likely to be considered personnel records and must be evaluated under the balancing test described in Section 2. Assuming proper classification and redaction procedures are followed, the custodian's decision regarding these records is generally consistent with the FOIA.

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 Conway Police Department, 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.

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 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; marital status of public employees; information about children and dependents; dates of birth of public employees; social security numbers; driver's license numbers; insurance coverage; tax information or withholdings; payroll deductions; net pay; banking information; and other financial "records that would divulge intimate financial detail."

3. 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:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
4. 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.

4. 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.

5. Application. The custodian has not indicated how he has classified any of the responsive records. And because I have not seen the records intended for release, I cannot opine about the disclosure of any specific record. As a result, my analysis is limited to the custodian's general determinations regarding each category of record.

5.1 Complete copy of personnel file. Your personnel file likely contains both evaluation records and personnel records. The custodian must first classify each document in the file and apply the relevant test for release. Because your termination is being appealed at the Conway Civil Service Commission, none of your evaluation records related to that termination may be released. Your personnel records, however, may be released unless their disclosure would constitute a clearly unwarranted invasion of personal privacy. To the extent that other public employees are mentioned in your personnel file, those portions constitute mixed records and must be treated accordingly. Personnel records subject to release may require redactions. The custodian must review each document for protected information and make the appropriate redactions. Until those steps are complete, the custodian's decision to release these records is inconsistent with the FOIA.

5.2 Materials related to incidents resulting in disciplinary action against you. This is a request for records "connected to any incident where disciplinary action was taken against [you]." This is an extremely broad request that could include both personnel records and evaluation records. If the responsive records were generated by or at the behest of your employer as part of an investigation into your alleged misconduct, those records must be withheld under the exemption for job performance records unless the test for release can be met. And any such records related to your termination, which is being appealed to the Conway Civil Service Commission, must not be released because the second prong of the test, administrative finality, has not been met. Assuming that the responsive records are evaluation records that do not meet the test for release, the custodian's decision to withhold them is consistent with the FOIA. But because the custodian has not said what records are responsive to this request or how they are classified, I cannot definitively opine on his decision.

5.3 Records confirming disciplinary action. Like the request in Section 5.2, the responsive records could include both personnel records and evaluation records. Again, I cannot definitively opine on the custodian's decision to withhold the records. But if they are evaluation records that have not met the test for release, the custodian's decision is consistent with the FOIA.

5.4 Investigative files related to in-custody deaths. To the extent any of the requested investigative files were generated by or at the behest of your employer as part of an investigation into alleged misconduct, they are evaluation records that must be withheld unless the test for release of evaluation records is met. And to the extent that the records relate to your termination, which is being appealed to the Conway Civil Service Commission, those records must not be released because your termination is not administratively final. However, if the investigative files constitute personnel records, they are subject to release unless disclosure would constitute a clearly unwarranted invasion of personal privacy. The custodian has indicated that the complete investigative files for two investigations shall be released, subject to any necessary redactions. This decision is only consistent with the FOIA if the tests for release outlined above have been met.

5.5 Case file materials involving you. The requester has specified that these materials are those related to your termination, which is being appealed to the Conway Civil Service Commission. To the extent that these records were generated while investigating the alleged misconduct that led to your termination, they are exempt from disclosure under the test for release of evaluation records, and the custodian's decision to withhold them is consistent with the FOIA.

5.6 Policies, directives, or training materials on chain of command or senior officer responsibility. This appears to be a request for public records unrelated to personnel or employee evaluation records. As such, they fall outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B)(i).

5.7 Training materials and programs on positional asphyxiation attended by you. Like the records requested in Section 5.6, the training materials themselves are unlikely to be personnel or evaluation records. If they include attendance records, those portions may qualify as personnel records, which must be evaluated under the balancing test described in Section 2. Otherwise, I lack the authority to opine on their release.

5.8 Active shooter training materials and programs attended by you. This request is substantively identical to the request in Section 5.7. The same analysis applies.

5.9 Internal Affairs case identifiers where you were interviewed and placed under Garrity. This Office has consistently opined that records generated at the behest of an employer while investigating a complaint against an employee constitute employee-evaluation or job-performance records. These employee-evaluation or job-performance records cannot be released unless the four elements for release discussed in Section 3 have been met. However, a complaint generated by a third party unaffiliated with the employer is a personnel record, and it does not become an employee-evaluation or job-performance record by virtue of any subsequent investigation.

In this instance, the custodian proposes releasing the administrative inquiry number and the original complaint. Any privacy interest you may have in this record is likely outweighed by the combination of the "thumb on the scale favoring disclosure" and the public's interest in knowing that a police officer in a position of public trust may have abused that trust while on duty. Thus, the custodian's decision to disclose these items is likely consistent with the FOIA.

5.10 Emails, call logs, and text messages sent or received during work hours surrounding specific incidents. Emails, call logs, and text messages are not public records subject to the FOIA simply because they were issued during work hours or on paid time. 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 …." Thus, each email, call log, or text message must be evaluated to determine whether it meets this definition before it can be considered a public record subject to the FOIA. If it is a public record, it is likely a personnel record, assuming it pertains to you as an employee and was not created by or at the behest of your employer to evaluate you. The custodian must then apply the balancing test to determine whether the record may be released.

To the extent that these emails, call logs, and text messages mention other public employees, they are mixed records and likely constitute the personnel records of the other public employees as well. Such mixed records require individualized analysis and, where appropriate, notification of the other affected employees.

In sum, the custodian's decision to release these records is only consistent with the FOIA if the communications constitute public records. And to the extent that the records are classified as personnel records, they must satisfy the balancing test before they can be disclosed.

Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General