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 received a FOIA request for ten categories of records concerning Officer Brittany Byrd. The custodian described which categories he intended to release or withhold, but neither Byrd nor the AG had been given the records to examine. The AG therefore assessed the custodian’s general plan and said it was only partly consistent with the FOIA.

The AG said the custodian must classify each responsive record. Personnel records may be released unless disclosure would be a clearly unwarranted invasion of personal privacy, with redactions where required. Evaluation records related to Byrd’s termination could not be released while her appeal before the Conway Civil Service Commission remained pending, because the termination lacked a final administrative resolution.

For the Internal Affairs category, the custodian proposed releasing an administrative inquiry number and the original complaint. The AG said releasing those items was likely consistent with the FOIA. The opinion did not classify the inquiry number as an evaluation record or direct the custodian to withhold it. A complaint generated by an unaffiliated third party is a personnel record and is not transformed into an evaluation record by a later investigation.

The AG also said policy and training materials were likely outside the employee-record categories within his review authority. Work-hour emails, call logs, and texts are not automatically public records; each must meet the FOIA’s public-record definition before any employee-record disclosure test applies.

What this means for you

If you are the employee named in the request

The pending termination appeal prevents release of evaluation records related to that termination under the test the AG applied. It does not make every document in a personnel file or disciplinary request an evaluation record. The custodian must classify the actual records and apply the corresponding test.

The AG treated the proposed release of the administrative inquiry number and original complaint as likely consistent with FOIA. He did not hold that the inquiry number must be withheld because of the pending appeal.

If you are the records custodian

For the complete personnel file, disciplinary materials, investigative files, and case-file materials, the AG required a record-by-record classification. Withholding a category is justified only to the extent the responsive records meet an applicable exemption or fail the evaluation-record release test. The AG could not decide the disclosure of specific records because he had not seen them.

For the proposed release of an administrative inquiry number and original complaint, the opinion says release was likely consistent with FOIA. For communications sent during work hours, first determine whether each is a public record, then apply the employee-record analysis where appropriate.

If you requested the records

The opinion does not establish a blanket release or withholding rule for any broad category. It identifies the tests the custodian must apply. The administrative inquiry number and original complaint were treated together as likely releasable, while evaluation records tied to the pending termination lacked administrative finality.

Common questions

Did the AG say the administrative inquiry number must be withheld?
No. The custodian proposed releasing the administrative inquiry number and original complaint, and the AG said that disclosure of these items was likely consistent with the FOIA.

Are all records in an officer’s personnel file releasable?
No. The AG said the file likely contains both personnel and evaluation records. The custodian must classify each document, apply the relevant test, and make necessary redactions before releasing records.

Why do termination-related evaluation records remain withheld during the appeal? The opinion says the pending Conway Civil Service Commission appeal means the termination has not reached final administrative resolution, which is required for release of evaluation records related to it.

Does a later investigation turn the original complaint into an evaluation record? No. The opinion says a complaint generated by a third party unaffiliated with the employer is a personnel record and is not transformed by a subsequent investigation.

Are work-hour emails and texts automatically public records?
No. The AG said each email, call log, or text must be evaluated to determine whether it records the performance or lack of performance of official functions. Work-hour timing alone is insufficient.

Did the AG decide whether each requested document could be released? No. The AG had not received the records and limited his analysis to the custodian’s general decisions by category.

Background and statutory framework

The opinion distinguishes personnel records from employee-evaluation or job-performance records. Personnel records are assessed under the clearly unwarranted invasion of personal privacy standard. Evaluation records cannot be released unless the employee was suspended or terminated, the proceeding is administratively final, the record formed a basis for the decision, and a compelling public interest exists.

The opinion applies those tests conditionally to broad categories of requested records. The AG said he could not opine on the release of any specific record without examining it. For the Internal Affairs category, he separately noted that employer-generated investigation records can be evaluation records and that an unaffiliated third party’s original complaint remains a personnel record. He then said the proposed release of the administrative inquiry number and complaint was likely consistent with FOIA.

Citations

Statutes:

• A.C.A. § 25-19-103(14)(A)
• A.C.A. § 25-19-105(b)(11)
• 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(c)(3)(B)(i)
• 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. 2025-093
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

1. Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.

2. See, e.g., Ark. Att’y Gen. Ops. 2024-095, 2022-006.

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. “Personnel files” are not referenced in the FOIA but typically includes the following documents: employment
   applications; school transcripts; payroll-related documents, such as information about reclassifications, promotions, or demotions; transfer records; health- and life-insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents, such as subpoenas. E.g. Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017).

7. See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.

8. Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren Sch. Dist., 2019 Ark. App.
   466, at 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employee- 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.

9. A.C.A. § 25-19-105(b)(12).

10. 308 Ark. 593, 826 S.W.2d 252 (1992).

11. Watkins et al., supra note 6, at 208.

12. Young, 308 Ark. at 598, 826 S.W.2d at 255.

13. Id.

14. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

15. E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 6, at 207.

16. A.C.A. § 25-19-105(f).

17. A.C.A. § 25-19-105(b)(13).

18. Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070. Public employee personnel numbers are exempt from
    disclosure because “these numbers presumably provide access to computerized data, and records containing ‘personal identification numbers’ used for computer security functions are specifically exempt from disclosure under the FOIA.” Ark. Att’y Gen. Op. 2022-032; see also A.C.A. § 25-19-105(b)(11).

19. Ark. Att’y Gen. Op. 2001-080.

20. Ark. Att’y Gen. Ops. 2018-084, 2018-083, 2001-080.

21. Ark. Att’y Gen. Op. 2007-064.

22. Ark. Att’y Gen. Ops. 2006-035, 2003-153.

23. Ark. Att’y Gen. Op. 2007-025.

24. Ark. Att’y Gen. Op. 2004-167.

25. Ark. Att’y Gen. Ops. 2005-194, 2003-385.

26. Ark. Att’y Gen. Op. 98-126.

27. Ark. Att’y Gen. Ops. 2018-064, 2018-015, 2002-043, 98-126.

28. Ark. Att’y Gen. Op. 2005-194.

29. Ark. Att’y Gen. Ops. 2005-194, 98-126, 95-242, 95-110, 94-235, 91-093, 87-422.

30. E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).

31. E.g., Ark. Att’y Gen. Ops. 2024-021, 2023-120, 2014-052, 2013-155, 2001-276, 1995-171.

32. A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

33. See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).

34. Ark. Att’y Gen. Op. 2025-059, 2007-311, 97-081, 92-319; see also Ark. Att’y Gen. Op. 2004-178.

35. See, e.g., Ark. Att’y Gen Ops. 2006-225, 2006-176, 2003-153.

36. Ark. Att’y Gen. Ops. 2025-059, 2001-123, 2000-166, 98-001, 96-257.

37. E.g., Ark. Att’y Gen. Ops. 2025-059, 2023-117, 2018-023, 1998-260.

38. A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (emphasis added).