I asked Washington County for discipline records on two former employees and the custodian denied everything. Can the county hold all of that back?

Plain-English summary

Mr. Carner asked Washington County for "discipline records," including terminations, on two former employees. The custodian refused to release anything, claiming the entire batch was exempt as employee-evaluation or job-performance records and that there was no "compelling interest" in disclosure. Mr. Carner asked the AG whether the blanket withholding was consistent with the Arkansas FOIA.

The AG reviewed the actual records and split them into five buckets:

1. Emails about the former employees (other than a transmittal email). These are personnel records, not evaluations, because they did not detail performance or lack of performance on the job. They must be released. Personal (non-employer) email addresses inside them must be redacted.

2. Three July 17, 2025 separation notices. These are personnel records, not evaluations, because the notices document the fact of termination without stating the reasons. The notices, including the section putting the employees on ninety days of administrative leave, must be released. Any "Employee ID" on the first page must be redacted if it functions as a public employee personnel number, because section 25-19-105(b)(11) exempts personal identification numbers used for computer security functions.

3. The July 17, 2025 investigation letter from the County Attorney to HR and the July 18, 2025 transmittal email. These are purely administrative, mention no specific employee, and are neither personnel records nor evaluations. They sit outside the AG's review under section 25-19-105(c)(3)(B)(i), so the AG took no position.

4. The April 2024 performance improvement plan. This is an employee-evaluation record (created by the employer to evaluate the employee, detailing performance). To release an evaluation, all four elements of section 25-19-105(c)(1) must be met: suspension or termination, administrative finality, relevance (the record formed a basis for the decision), and compelling public interest. The first element is met because the employee was terminated. The custodian must decide finality and relevance. On compelling interest, the custodian determined none existed. Because that is a fact question, the AG could not say the withholding was inconsistent with FOIA.

5. The August 26, 2025 investigation closure letter. Although tied to a workplace investigation, this letter was created after the investigation, contains no detailed employee conduct, and is administrative in nature. It is a personnel record subject to release.

Bottom line: the county's "withhold everything" posture was largely wrong, but the performance improvement plan can stay sealed unless the requester can supply a compelling-public-interest argument the custodian has not yet considered.

What this means for you

If you are a FOIA requester who got a blanket denial

A custodian who labels every employee-related document an "evaluation" and points to "no compelling interest" is using the right vocabulary on the wrong records. Push back. Ask which specific document the custodian classified as an evaluation and why. Emails, separation notices that do not state reasons, and post-investigation closure letters are typically personnel records subject to the Young v. Rice balancing test, not the four-element evaluation test.

If a true evaluation record like a performance improvement plan is in the mix, focus your follow-up on the compelling-public-interest factors the AG identifies: violation of public trust, illegal conduct, sexual misconduct, public safety, or whether the employee was high-ranking. A custodian's "no compelling interest" finding is a fact judgment, but it is not unreviewable. You can supply additional context (public controversy, rank, nature of the conduct) and ask the custodian to reweigh.

If you are a county records custodian

Three concrete corrections you should make before issuing a denial like the Washington County one:

1. Look at each document individually. Do not lump emails, separation notices, and PIPs into one bucket and apply one test.
2. For each record, ask first: was it created by or at the behest of the employer to evaluate the employee, and does it detail performance? If no, it is a personnel record and the four-element test does not apply.
3. For separation notices specifically: if the notice states no reason for termination, it is a personnel record, not an evaluation. Treat it as releasable with redactions.

Redact personal email addresses. Redact any "Employee ID" that functions as a public employee personnel number under section 25-19-105(b)(11).

If you are HR or a county attorney advising on a release

The administrative finality and "formed a basis for the decision" elements of the four-element test require a real factual record. If the PIP predates the termination by more than a year and the custodian cannot articulate how it fed into the termination decision, that gap will show up in any future challenge. Document the link, or accept that the third element is not met.

If you are a former employee whose records are being requested

The county must notify you when records about you are requested under the FOIA. That notice gives you a chance to object, but the FOIA's privacy test is objective. Your personal preference for confidentiality does not control. What matters is whether disclosure would constitute a clearly unwarranted invasion of privacy under the Young v. Rice balancing test.

If you are a journalist

Separation notices that document a fact of termination without the reasons are usually obtainable. To get the reasons (the PIPs, investigation findings, and conduct details) you need the four-element test in your favor, and the most contested element is compelling public interest. Build that record: what is the rank of the employee, was the conduct connected to public trust or public safety, was there a public controversy?

Common questions

What is the difference between a "personnel record" and an "employee-evaluation or job-performance record"?
Personnel records pertain to an individual employee but were not created by or at the behest of the employer to evaluate that employee. Evaluation records meet three conditions: (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) detailing performance or lack of performance on the job. The release tests are completely different. Personnel records use the Young v. Rice balancing test under section 25-19-105(b)(12). Evaluation records use the four-element test under section 25-19-105(c)(1).

Why is a separation notice a personnel record but a performance improvement plan an evaluation record?
Because the separation notice in this case stated only that the employee had been terminated, without giving reasons. A bare fact of termination is a status change, not an evaluation. The PIP, by contrast, was created by the employer to evaluate the employee's performance and to lay out steps for improvement. That is the textbook definition of an evaluation record.

The custodian said there was no "compelling public interest." Is that the end of the matter?
For the AG, yes. The AG is not a factfinder and could not reweigh the custodian's compelling-interest determination. But the requester can ask the custodian to reconsider, supplying facts about the employee's rank, the nature of the alleged conduct, and any public controversy. If the custodian still refuses, the requester's remedy is in court under the FOIA, not another AG opinion.

What has to happen for an "Employee ID" on a separation notice to be redacted?
The redaction is required only if the Employee ID functions as a "public employee personnel number" used for computer security or system access. Section 25-19-105(b)(11) exempts those numbers because they presumably provide access to computerized data. A purely internal HR identifier with no system-access function is not automatically exempt. The custodian has to assess what the number actually does.

Can the county withhold the July 17, 2025 investigation letter and its transmittal email?
The AG did not say either way. Those documents are administrative and mention no specific employee, so they are neither personnel records nor evaluations. Under section 25-19-105(c)(3)(B)(i), the AG can opine only on personnel records and evaluations. The custodian must look elsewhere in FOIA (general public-record analysis or specific exemptions) to decide.

What about the four-element test? Walk me through it.
For an employee-evaluation record to be released, all four must be met:
1. The employee was suspended or terminated.
2. The suspension or termination is administratively final.
3. The record formed a basis for the decision to suspend or terminate.
4. The public has a compelling interest in disclosure.

A "no" on any element means the record stays sealed. The custodian decides each element first; the AG reviews if asked, but cannot supply facts the custodian did not develop.

Background and statutory framework

FOIA structure. Arkansas FOIA, A.C.A. § 25-19-101 et seq., presumes records held by a public entity are public records and places the burden on the entity to invoke an exemption. The two exemptions at issue here come from the same section: 25-19-105(b)(12) (personnel-records balancing test) and 25-19-105(c)(1) (employee-evaluation four-element test).

The two-test split. Watkins, Peltz, and others have long noted that custodians frequently mis-classify documents and apply the wrong test. AG opinions cite the same recurring categories: change-of-status records that don't contain reasons (personnel), employee race and gender (personnel), employee names (personnel), salaries (personnel), work email addresses (personnel). The personnel-records bucket is broad. The evaluation bucket is narrow and tightly defined by Thomas v. Hall and the AG's own historical opinions.

Constructive termination is not in this opinion. Worth noting because some readers will arrive here from a related fact pattern. In opinions like 2025-099, the AG addresses cases where an employee resigns under imminent termination, treating the resignation as a "constructive termination" satisfying element one. In this opinion, the employee was actually terminated, so element one is met directly.

The compelling-public-interest factors. The AG's framework asks about: nature of the infraction (violation of public trust, gross incompetence), public controversy related to the agency, and the employee's rank. Categories where compelling interest has been found in past AG opinions include illegal conduct, sexual harassment or misconduct, public trust, and public safety. The list is not exhaustive.

Recent statutory amendment. The opinion references Act 505 of 2025, which amended the FOIA's definition of "public records" at A.C.A. § 25-19-103(14)(A). The amendment is mentioned in passing as the current source of the public-record definition.

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) (exemption for personal identification numbers used for computer security functions)
- A.C.A. § 25-19-105(b)(12) (personnel-records balancing test)
- 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 for personnel and evaluation records)

Cases:
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (three-element FOIA disclosure framework)
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebutting the public-record presumption)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (personnel-records balancing test)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation record)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (approving AG definition of evaluation records)

Other AG opinions referenced:
- 2025-049, 2024-041, 2023-041, 2014-052, 2001-276, 95-171 (termination letters with reasons are evaluation records)
- 2013-155, 2006-147, 2002-150 (termination letters without reasons are personnel records)
- 2022-032, 2014-094, 2007-070 (Employee ID/personnel-number redaction)
- 2024-073, 2019-008, 2009-156, 2005-100, 99-305, 91-351 (race and gender are personnel records)
- 2014-116, 99-040 (general change-of-status records without reasons)
- 2002-159 (salaries)
- 2006-165, 2005-114, 2004-225 (work email addresses; redaction of personal email)
- 2015-072, 1999-147 (definition of personnel record)
- 2015-057, 2009-067, 2006-038, 2003-073, 95-351, 93-055 (definition of evaluation record)
- 2020-037 (mixed records)
- 99-361, 99-148, 99-147, 99-041, 98-122, 98-006 (compelling-public-interest factors)
- 2001-144, 2005-032, 2004-012, 2002-095, 2008-090, 2006-106, 2001-147, 97-400, 2003-072, 2001-343, 98-210, 98-075, 92-319 (categories of compelling public interest)
- 2009-091 (compelling-interest categories not exhaustive)
- 2010-139 (compelling interest is fact question for custodian)
- 2007-311 (records created after investigation are administrative)
- 96-258, 95-109 (employee rank as factor)
- 2005-095 (public-record definition jurisprudence)

Source

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

Original opinion text

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201

Opinion No. 2025-094
September 18, 2025

Mr. Casey Carner
Via email only: [email protected]

Dear Mr. Carner:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the requester of 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.

Under the FOIA, you requested "discipline records," including terminations, for two former employees of Washington County. In response, the county's records custodian denied your request because the requested records were exempt from release as employee-evaluation or job-performance records.

After you received that response, you informed the custodian that the records should be released as employee-evaluation or job-performance records because an underlying investigation was closed and the employees in question "had a final resolution of being terminated." The custodian responded by stating that the "request does not meet the requirement for a 'compelling interest' and therefore your request is denied."

I have been provided unredacted copies of the following employee records for my review:

• Emails. These include emails with separation notices attached and emails regarding an emergency meeting with three former employees.
• Separation notices. Dated July 17, 2025, these separation notices pertain to the termination of three former employees.
• Investigation letter and related email. This includes a July 17, 2025 letter from the County Attorney to the Human Resources Director about opening an investigation, along with an accompanying email.
• Performance improvement plan. This is an April 2024 performance improvement plan for one of the employees in question.
• Investigation closure letter. This August 26, 2025 letter from Human Resources to the "Director, Division III" includes the findings and recommendations of a workplace investigation.

You ask whether the custodian's decision to withhold these records is consistent with the FOIA.

RESPONSE

The Washington County's custodian of records has determined that all the records provided for my review should be withheld from release. That decision is largely inconsistent with the FOIA. While I cannot conclude that the decision to withhold the performance improvement plan is inconsistent with the FOIA, the remaining records qualify as "personnel records" and should be released. If, however, the "Employee ID" listed on the first page of each separation notice is a public employee personnel number, it must be redacted before release. Likewise, any personal email addresses must be redacted.

DISCUSSION

1. General rules. A document must be released in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the FOIA. Second, the requested document must constitute a public record. Third, the document must not be subject to an exemption.

The first two elements appear to be met here. The request was made to Washington County, 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, however, to suggest that the presumption can be rebutted, and I will thus turn to whether any exemptions prevent the documents' release.

For purposes of the FOIA, employees' personnel files normally contain two distinct groups of records: "personnel records" and "employee-evaluation or job-performance records." 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 "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. 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. Additionally, A.C.A. § 25-19-105(c)(3)(A) requires that any public employee or former 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 or former employees cannot be redacted, those employees or former employees will also need to be notified of the FOIA request.

3. Emails. Because the emails concerning the individual former employees, not including the July 18, 2025 email discussed separately below, do not detail the employees' performance or lack of performance on the job, such records are "personnel records."

Public records are "personnel records" when (1) they pertain to an individual employee; and (2) they are not created by or at the behest of the employer to evaluate the employee. Although these emails appear to have been created by the employer and concern individual former employees, they lack details or specifics concerning the employees' performance or lack of performance on the job. So the emails are best classified as "personnel records."

Personnel records are 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 a thumb on the scale in favor of disclosure, has two steps.

First, the custodian must assess whether the information contained in the requested record is of such a personal or intimate nature 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.

This office has consistently opined that the following are personnel records subject to disclosure under the FOIA: general change-of-status records that don't contain reasons for change; employee race and gender; employee names; salaries; and work email addresses. Therefore, the custodian's decision to withhold the emails as employee-evaluation or job-performance records is inconsistent with the FOIA.

To the extent that any of the email addresses are personal (not provided by the employer), they would need to be redacted.

4. Separation notices. Among the documents you have provided for my review are three individual "Separation Notices." This Office has consistently concluded that letters of termination are "employee-evaluation or job-performance records" when they contain the reasons for suspension or termination. But when the letter simply reflects the fact of suspension or termination, without elaboration, this Office has determined that the letter is best classified as a "personnel record" and is subject to release. Because the separation notices here do not give the reasons for terminating employment, each qualifies as a personnel record subject to release. Likewise, the portion of the separation notices that include administrative leave for ninety days, are also personnel records because no reason is given for the administrative leave. As personnel records, the notices are subject to disclosure under the FOIA. But to the extent that the "Employee ID" listed on the first page of each notice is a public employee personnel number, it must be redacted before release.

5. Investigation letter and related email. While the July 17, 2025 investigation letter generally refers to "allegations," the letter is purely administrative, non-disciplinary, and mentions no specific employee. The accompanying July 18, 2025 email from the County Attorney merely transmits the letter. Thus, neither is a "personnel record" nor an "employee-evaluation or job-performance record." Therefore, they fall outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B)(i), and I lack the authority to opine on whether the custodian's decision to withhold these records is consistent with the FOIA.

6. Performance improvement plan. Another record provided for my review is an April 2024 performance improvement plan for an employee. The performance improvement plan qualifies as an "employee-evaluation or job-performance record." An employee-evaluation or job-performance record is a record created by or at the behest of an employer; to evaluate the employee; and that details the employee's performance or lack of performance on the job.

But employee-evaluation or job-performance records cannot be released unless all the following elements have been met:

• Suspension or termination. The employee was suspended or terminated;
• Administrative finality. The suspension or termination is administratively final and is, therefore, incapable of any administrative reversal or modification;
• Relevance. The records in question formed a basis for the decision to suspend or terminate the employee; and
• Compelling interest. The public has a compelling interest in the disclosure of the records in question.

Because the employee was terminated, the first element is met. But whether the remaining elements are met is unclear from my review of the record. The custodian will need to determine whether the termination is administratively final. If it is, the second element is also met. Regarding the third element, the performance improvement plan predates the termination by more than a year. This temporal gap suggests that the reasons for the improvement plan may not have formed the basis for the county's decision to terminate the former employee. Without knowing why that employee was terminated, however, I cannot conclude whether this element is met. The custodian must assess whether the improvement plan formed the basis of the termination. If it did, the third element is met. But if the plan did not serve as the basis of the termination, that element would not be met.

As for the fourth element, the FOIA does not define the phrase "compelling public interest." But this Office and leading commentators on the FOIA have noted that whether there is a compelling public interest in releasing employee-evaluation or job-performance records turns on a few factors: (1) the nature of the infraction that led to suspension or termination, like a violation of public trust or gross incompetence; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's rank within the agency. The third factor likely is "present when a high-level employee is involved versus when the [records] of 'rank-and-file' workers are at issue."

This Office has long determined that there is a compelling interest in releasing records that concern illegal conduct, sexual harassment or misconduct, public trust, and public safety. Such categories are not exhaustive.

Ultimately, whether there is a compelling public interest in the performance improvement plan is a question of fact that the custodian must determine. I do not know why the former employee was terminated; whether there existed a public controversy; or what position within the agency the former employee held. But based on information submitted for my review, the custodian has determined that the fourth element is not met, that there is no "compelling public interest" in the record.

Thus, I cannot say that the custodian's decision to withhold the performance improvement plan is inconsistent with the FOIA.

7. Investigation closure letter. The August 26, 2025 letter from Human Resources to the "Director, Division III" determined that each allegation was "not substantiated," and it provided workplace recommendations. Although the letter is connected to an internal investigation, the record itself is administrative in nature. It was not created by or at the behest of the employer while investigating a former employee, it was generated after investigating. Additionally, the letter does not contain details of conduct by an employee. As such, the investigation closure letter is best classified as a personnel record subject to release.

Assistant Attorney General William R. Olson prepared this opinion, which I hereby approve.

Sincerely,
TIM GRIFFIN
Attorney General