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

Casey Carner asked Washington County for discipline records concerning two former employees. The custodian withheld all the records provided to the AG for review as employee-evaluation or job-performance records. The AG said that decision was largely inconsistent with the FOIA.

The AG classified several emails and three separation notices as personnel records. The emails did not describe the employees’ job performance, and the notices recorded the fact of termination without giving reasons. Those records should be released. Personal email addresses must be redacted. The “Employee ID” on a separation notice must be redacted to the extent it is a public employee personnel number. The opinion does not make redaction depend on a separate finding about system access.

The investigation closure letter was also classified as a personnel record subject to release. A July investigation-opening letter and its transmittal email mentioned no particular employee and fell outside the AG’s limited review of personnel and evaluation records. The April 2024 performance improvement plan was an evaluation record. The AG could not say the decision to withhold that plan was inconsistent with FOIA because the remaining release elements required factual determinations, including the custodian’s finding that no compelling public interest was shown.

What this means for you

If you requested employee discipline records

The opinion rejects the county’s blanket evaluation-record classification for the records the AG reviewed. Emails without job-performance details, separation notices that state no reasons, and the investigation closure letter were treated as personnel records subject to release. The performance improvement plan received a separate evaluation-record analysis.

If you are a county records custodian

Classify the records individually. The AG said the three separation notices were personnel records because they gave no reason for the terminations. Release them with the specified redactions. For the “Employee ID,” the opinion says to redact it if it is a public employee personnel number; it does not impose a separate system-access test on that instruction.

For the performance improvement plan, the custodian must determine administrative finality, whether the plan formed a basis for the termination, and whether a compelling public interest exists. The AG could not resolve those facts from the record before him.

If you are a former employee named in the records

The opinion says former employees whose records are sought must be notified under A.C.A. § 25-19-105(c)(3)(A). It also distinguishes a notice stating only that employment ended from an evaluation record stating reasons for discipline. The records’ contents and purpose determine the applicable disclosure test.

Common questions

Why were the separation notices releasable?
The notices recorded termination and administrative leave without giving the reasons. The AG treated them as personnel records rather than employee-evaluation records.

When must an “Employee ID” be redacted?
The AG said the ID on the first page of each separation notice must be redacted to the extent it is a public employee personnel number. The opinion did not require an additional factual finding about system-access use.

Why was the performance improvement plan treated differently?
The plan was created to evaluate an employee and described performance. The AG classified it as an employee-evaluation record and applied the four-element release test.

Did the AG approve withholding the performance improvement plan? The AG said he could not conclude that withholding it was inconsistent with FOIA. He could not determine all of the factual elements required for release, and the custodian had found no compelling public interest.

Did the AG decide whether to release the investigation-opening letter and its email? No. The AG said those administrative records mentioned no specific employee and were neither personnel nor evaluation records, placing them outside this opinion’s review authority.

Background and statutory framework

The opinion distinguishes personnel records from employee-evaluation or job-performance records. Personnel records are subject to the clearly unwarranted invasion of personal privacy test. Evaluation records require suspension or termination, administrative finality, a record that formed a basis for that decision, and a compelling public interest before release.

The AG said a termination letter that states the reasons for discipline can be an evaluation record, while a notice recording only the fact of termination is a personnel record. The performance improvement plan met the evaluation-record definition. The AG identified the nature of the infraction, any public controversy, and the employee’s rank as factors relevant to compelling public interest, while leaving their application here to the custodian.

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(c)(1)
• A.C.A. § 25-19-105(c)(3)(A)
• A.C.A. § 25-19-105(c)(3)(B)(i)

Cases:

• Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987)
• 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

Source

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

Original opinion text

TIM GRIFFIN
ATTORNEY GENERAL

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.

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

Mr. Casey Carner
Opinion No. 2025-094
Page 2

• 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.1 Second, the requested document must constitute a public record.2 Third, the document must not be subject to an exemption.3

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.4 And the records at issue appear to be public records.5 Because these records are held by a public entity, they are presumed to be public records,6 although

1
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
2
Id.
3
Id.
4
See, e.g., A.C.A. § 25-19-103(14)(A), as amended by Act 505 of 2025, § 1 (including “a public official or employee” or “a governmental agency”). 5 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. 6 Id.

Mr. Casey Carner
Opinion No. 2025-094
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that presumption is rebuttable.7 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 files8 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.9 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.10 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.”

7
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)). 8 “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). 9 See Ark. Att’y Gen. Op. 2020-037.
10
See, e.g., Ark. Att’y Gen. Ops. 2015-072, 1999-147; Watkins et al., supra note 8, at 202.

Mr. Casey Carner
Opinion No. 2025-094
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Personnel records are open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”11 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.12 The balancing test, which takes place with a thumb on the scale in favor of disclosure, has two steps.13

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. 14 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.15

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;16 employee race and gender;17 employee names;18 salaries;19 and work email addresses.20 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.21

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

11
A.C.A. § 25-19-105(b)(12).
12
308 Ark. 593, 826 S.W.2d 252 (1992).
13
Watkins et al., supra note 10, at 208.
14
Young, 308 Ark. at 598, 826 S.W.2d at 255.
15
Id.
16
Ark. Att’y Gen. Ops. 2014-116, 99-040.
17
Ark. Att’y Gen. Ops. 2024-073, 2019-008, 2009-156, 2005-100, 99-305, 91-351.
18
Ark. Att’y Gen. Op. 2009-156.
19
Ark. Att’y Gen. Op. 2002-159.
20
Ark. Att’y Gen. Ops. 2006-165, 2005-114, 2004-225.
21
Ark. Att’y Gen. Op. 2004-225.

Mr. Casey Carner
Opinion No. 2025-094
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suspension or termination.22 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.23 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.24

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.25

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;

22
See Ark. Att’y Gen. Ops. 2025-049, 2024-041, 2023-041, 2014-052, 2001-276, 95-171.
23
Ark. Att’y Gen. Ops. 2013-155, 2006-147, 2002-150.
24
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). 25 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.

Mr. Casey Carner
Opinion No. 2025-094
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• 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.26

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.27 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.”28

26
A.C.A. § 25-19-105(c)(1).
27
Ark. Att’y Gen. Ops. 99-361, 99-148, 99-147, 99-041, 98-122, 98-006; Watkins, et al., supra note 8, at 239.
28
Watkins, et al., supra note 8, at 237; Ark. Att’y Gen. Ops. 96-258 (concerning a vice president of an agency), 95- 109 (concerning a director of a regional agency).

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Opinion No. 2025-094
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This Office has long determined that there is a compelling interest in releasing records that concern illegal conduct,29 sexual harassment or misconduct,30 public trust,31 and public safety.32 Such categories are not exhaustive.33

Ultimately, whether there is a compelling public interest in the performance improvement plan is a question of fact that the custodian must determine.34 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.35

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.36 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

29
Ark. Att’y Gen. Op. 2001-144.
30
Ark. Att’y Gen. Ops. 2005-032, 2004-012, 2002-095, 99-361.
31
Ark. Att’y Gen. Ops. 2008-090 (violating administrative rules or policies “aimed at conduct which undermine the public trust”), 2006-106, 2001-147, 97-400. 32 Ark. Att’y Gen. Ops. 2003-072, 2001-343, 98-210, 98-075, 97-400, 92-319.
33
See Ark. Att’y Gen. Op. 2009-091.
34
See Ark. Att’y Gen. Op. 2010-139.
35
See, e.g., Ark. Att’y Gen. Op. 2009-091.
36
See, e.g., Ark. Att’y Gen. Op. 2007-311.