A school district investigated an employee, the employee resigned, and now the district refuses to release the investigation files. Can they?

Plain-English summary

Mr. Cavin requested a former employee's investigation files, complaints, police reports, suspension notices, and personnel records from the Beebe School District. The custodian released the personnel file and resignation letter, withheld mandated-reporting records under child-maltreatment statutes, and classified the remaining records as employee evaluations that could not be released because the employee had resigned. The AG had not seen the withheld records, so he could not decide whether that withholding complied with FOIA.

The AG explained that record classification comes first. An unsolicited third-party complaint about an employee is a personnel record, even if the employer later investigates it. It must be disclosed unless release would be a clearly unwarranted invasion of personal privacy. Records made by or for the employer to investigate an employee's conduct are employee-evaluation records. A suspension notice can fall into either category depending on whether it evaluates the employee. School police records may be evaluations, personnel records, or independent criminal-investigation records depending on how they were created and used.

An employee-evaluation record may be released only if all four conditions are met: suspension or termination, final administrative resolution, use of that record as a basis for the decision, and compelling public interest in disclosure. The AG said a resignation forced by “certain, impending termination” can count as constructive termination for the first condition. If the custodian finds the resignation was voluntary, the evaluations stay withheld because that condition fails. If it was constructive termination, the custodian must still evaluate the other three conditions. The AG did not decide those facts in this case.

What this means for you

If you handle a school district FOIA request

Classify each document from its content and how it was created. Do not treat every complaint or police report as an employee evaluation merely because an employer investigated the same employee. If a resignation may have been forced by certain, impending termination, determine whether it counts as constructive termination. That resolves only the first release condition for evaluation records; check administrative finality, whether the record formed a basis for the decision, and compelling public interest before disclosing it. Apply the personnel-record privacy test to documents in that category, including unsolicited complaints.

If you requested the records

Ask the custodian to identify which disclosure test applies to each kind of record. A resignation does not by itself establish that evaluation records can be withheld: the opinion recognizes constructive termination. It also does not make those records automatically public. The AG could not say whether these particular records should be released without examining them and resolving the facts.

Common questions

Does a resignation always prevent release of employee evaluations?

No. The AG said a forced resignation in the face of certain, impending termination can satisfy the suspension-or-termination element. The other three elements must still be met. A voluntary resignation does not satisfy that first element.

Are unsolicited complaints treated like investigation reports?

No. A third party's unsolicited complaint is a personnel record if the employer did not create it or ask for it to evaluate the employee. A later investigation does not change that classification. Release then depends on the personnel-record privacy test.

How should school police records be classified?

If the police investigated at the district's request to evaluate the employee, the records are employee evaluations. If police investigated independently and the district later put copies in the personnel file, they are personnel records. If the investigation remained independent and the district neither requested nor filed the records, the AG treated them as criminal-investigation records outside this particular opinion's review.

Did the AG decide whether the district must release the withheld files?

No. He had not received the records and said the facts and classifications must first be determined by the custodian.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) allows withholding personnel records to the extent disclosure would be a clearly unwarranted invasion of personal privacy. A.C.A. § 25-19-105(c)(1) sets the four conditions for releasing employee-evaluation records. The AG noted that even a record meeting the applicable disclosure test can contain information requiring redaction. He did not review the separate child-maltreatment confidentiality basis asserted for mandated-reporting records.

Citations

Statutes:

• A.C.A. § 12-18-104 (custodian’s cited basis for withholding mandated-reporting records)
• A.C.A. § 12-18-402 (mandated reporting requirement, referenced in request)
• A.C.A. § 25-19-103 (FOIA definitions)
• A.C.A. § 25-19-105 (exemptions; (b)(12), (b)(13), (c)(1), (c)(3))

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• 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

Other AG opinions:

• 2024-045, 2023-077, 2012-019 (constructive termination)
• 2025-060, 2003-276, 2001-276, 2001-244, 1998-075 (suspension classification)
• 2001-123, 2000-166, 1998-130, 1998-001, 1996-257 (unsolicited complaints)
• 2003-257 (solicited statements as evaluations)
• 1996-168 (purpose of evaluation confidentiality)

Source

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

Original opinion text

Opinion No. 2025-099

September 24, 2025

Mr. Jimmie Cavin
Via email only: [email protected]

Dear Mr. Cavin:

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 the records, is based on A.C.A.
§ 25-19-105(c)(3)(B)(i). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion stating whether the custodian’s decision regarding the release of such records is consistent with the FOIA.

According to correspondence you provided our office, you sent a FOIA request to the Beebe School District for the following information regarding a former employee:

• All Beebe School District PD investigation files.
• All Beebe School District PD incident reports.
• All complaints.
• Title IX complaints.
• Mandated reporting required under AR Code 12-18-402.
• Suspension notices.
• Application for employment.
• Personnel file/records.
• Resignation letter/notice.

The records custodian provided you with the former employee’s personnel file and resignation letter. But the custodian declined to release the mandated reporting records under A.C.A.
§§ 12-18-104 and -909. The custodian also withheld the remaining records, classifying them as employee evaluations. According to the custodian, the employee-evaluation exception applies “[b]ecause the employee resigned and no suspension or termination proceedings occurred[.]” I have not been provided any of the withheld records. You have asked whether the custodian’s decision to withhold those records under the employee-evaluation exemption is consistent with the FOIA.

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

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 2

RESPONSE

Without reviewing the records at issue, I cannot determine if they are employee evaluations or if the four-part test for release of employee-evaluation records has been met. Thus, I cannot definitively say whether the custodian’s decision to withhold the records is consistent with the FOIA. Instead, I offer a general overview of the types of records commonly generated during investigations into a public employee’s conduct, how such records are best classified, and the conditions under which they are subject to disclosure.

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. 1

The first two elements appear to be met. The request was made to the Beebe School District—a public entity subject to the FOIA. 2 And the records at issue appear to be public records. 3 Because these records are held by a public entity, they are presumed to be public records, 4 although that presumption is rebuttable. 5 I have no information to suggest that the presumption can be rebutted here, so I will focus on whether any exceptions prevent the documents’ disclosure.

For FOIA purposes, documents in a public employee’s file can usually be divided into two distinct groups: “personnel records” 6 and “employee evaluation or job performance records.” 7 Personnel records are records that pertain to an individual employee that were not created by or at the behest

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2
E.g., Ark. Att’y Gen. Ops. 2024-096, 2021-054, 2020-008.
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 A.C.A. § 25-19-105(b)(12) (“It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter … [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy”). 7 Id. § 25-19-105(c)(1) (“[A]ll employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure”).

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 3

of the employer to evaluate the employee. 8 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. 9

The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release under the FOIA, the custodian must first decide whether a record meets the definition of either a “personnel record” or an “employment evaluation or job performance record” and then apply the appropriate test for that record to determine whether the record should be released under the FOIA.

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.” 10 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. 11 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 12

First, the custodian must assess whether the information contained in the requested document is of a personal or intimate nature such that it gives rise to a greater than minimal privacy interest. 13 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. 14

Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, the employee’s privacy interests outweigh the public’s interests. 15 The fact that the subject of the records may consider release of the records an

8
See, e.g., Ark. Att’y Gen. Ops. 2015-072, 1999-147.
9
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, 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. 10 A.C.A. § 25-19-105(b)(12).
11
308 Ark. 593, 826 S.W.2d 252 (1992).
12
John J. Watkins et al., The Arkansas Freedom of Information Act 208 (6th ed. 2017).
13
Young, 308 Ark. at 598, 826 S.W.2d at 255.
14
Id.
15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 4

unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 16

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that must be redacted. 17 For instance, the FOIA exempts the personal contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses. 18

3. Employee-evaluation records. The second relevant exception is for “employee evaluation or
   job performance records,” which 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. 19 “This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 20

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). 21

As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But the leading commentators on the FOIA, referring to this office’s opinions, have offered the following guidelines:

16
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 1994-198; Watkins et al., supra note 122, at 207.
17
A.C.A. § 25-19-105(f).
18
See id. § 25-19-105(b)(13).
19
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren School Dist., 2019 Ark. App. 466, 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, 1995-351, and 1993-055. 20 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
21
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 5

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee’s position within the agency. In short, a general interest in the performance of public employees should not be considered compelling because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the “compelling public interest” requirement. 22

These commentators also note that “[t]he status of the employee” or “his or her rank within the bureaucratic hierarchy” may be relevant in determining whether a “compelling public interest” exists, 23 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. 24 The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges between employees and their employers. 25

4. Classification of records. Because I have not reviewed the records at issue, I cannot definitively
   opine on whether the records constitute personnel records, employee evaluations, or neither. Instead, I will provide an overview of the types of records that are often generated as part of an investigation into a public employee’s conduct. Ultimately, the contents of these documents and the circumstances under which they were created are questions of fact to be determined by the custodian, as I am not a factfinder when issuing opinions.

4.1 Unsolicited complaints. First, an unsolicited complaint about a public employee that is created by a third party is a personnel record. 26 It is not transformed into an employee-evaluation record by virtue of a subsequent investigation. 27 If the unsolicited complaint relates to the former employee but was not created by or at the behest of the employer to evaluate the former employee, then that complaint is a personnel record. As a personnel record, an unsolicited complaint must be disclosed unless that “disclosure would constitute a clearly unwarranted invasion of personal privacy.”

22
Watkins et al., supra note 122, at 238–39.
23
Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”). 24 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
25
E.g., Ark. Att’y Gen. Op. 1996-168.
26
See, e.g., Ark. Att’y Gen. Op. 2001-123, 1998-001.
27
Ark. Att’y Gen. Ops. 2001-123, 2000-166, 1998-130, 1998-001, 1996-257.

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 6

4.2 Employer’s investigation records. Second, records created as part of an employer’s investigation into complaints about an employee’s conduct are employee-evaluation records. 28 These investigation records are created by the employer or at the behest of the employer to evaluate the employee, so they are employee evaluations. As employee-evaluation records, they can be released only if (1) the employee was suspended or terminated; (2) the suspension or termination is administratively final; (3) the records detail the grounds for suspension or termination; and (4) there is a compelling public interest in disclosure of the records in question.

4.3 Suspension notices. Third, suspension notices can be either personnel records or employee evaluations. A suspension notice is a personnel record in two situations. In the first type, the notice is a standard form that merely documents the suspension and does not evaluate the employee or detail the employee’s performance or lack of performance on the job. 29 The notice may also provide information so that the employee can appeal the action detailed in the notice. 30

With the second type of suspension notice that is a personnel record, the suspension notice itself states that the suspension is administrative or non-disciplinary. 31 This type of notice is generally issued prior to an employer starting the investigation, 32 and it may detail the alleged conduct for which the employee will be investigated. 33 Because the suspension notice does not include the results of the investigation—the employee’s performance or lack of performance on the job—the suspension notice is a personnel record.

But a suspension notice is an employee evaluation when the notice is disciplinary. 34 In other words, the notice evaluates the employee and details the employee’s performance or lack of performance on the job. 35 The notice then provides the discipline—suspension—based on those findings. This

28
Ark. Att’y Gen. Ops. 2003-257 (opining that “statements that were solicited by the employer and were created as a part of the employer’s investigation into the officer’s conduct constitute ‘employee evaluation/job performance records’”); 1998-001 (opining that “statements taken as a part of an investigation into an allegation of sexual harassment, transcripts of such investigation proceedings, records which reflect administrative action in response to or in connection with such an allegation, and other ancillary documents created as a part of the investigation[] constitute ‘employee evaluation/job performance records[]’ rather than ‘personnel records’”). 29 Ark. Att’y Gen. Op. 2025-060.
30
Id.
31
Ark. Att’y Gen. Op. 2023-077 (opining that the suspension notice at issue was purely administrative because it stated, “The suspension neither makes you guilty nor serves as a disciplinary action”). 32 See id.
33
Id. (opining that “[i]f an employer memorializes an administrative suspension in a letter and states the grounds for the administrative suspension, the suspension is still administrative in nature—not evaluative or disciplinary”). 34 See id.
35
Ark. Att’y Gen. Op. 2003-276.

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 7

office has consistently opined that a suspension notice qualifies as an employee-evaluation record when it states the grounds for the suspension. 36

Once the custodian has classified the suspension notice as either a personnel record or employee evaluation, then the custodian can apply the correct test for disclosure.

5. Beebe School District Police Department. The critical question regarding the investigation
   files and incident reports prepared by the Beebe School District Police department is the documents’ classification: Are they employee evaluations, personnel records, or neither? As noted previously, I have not reviewed these records, and I am not a factfinder when issuing opinions. So I will provide only an outline of the relevant law.

5.1 Employee evaluations. If the police department investigated the former employee at the behest of the school district, then those records are employee evaluations. 37 Based on the custodian’s response to your FOIA request, this is likely how she has classified the records.

5.2 Personnel records. But if the police department investigated the former employee independently and the school district later obtained a copy of the records to include in the former employee’s file, then the records are personnel records. They relate to the former employee but were not created by the employer or at the behest of the employer to evaluate the former employee. 38

5.3 Neither. If the police department investigated the former employee independently and the

school district neither asked for the records nor placed a copy of them in the former employee’s file, then those records are best classified as a criminal investigation. If the records are best classified as a criminal investigation, the records fall outside the scope of this opinion. 39

6. Constructive termination. Other than the mandated reporting records, the custodian has
   withheld the remaining records you requested under the employee-evaluation exception, noting that the former “employee resigned and no suspension or termination proceedings occurred[.]” As discussed above, employee evaluations cannot be released unless the four-part test is met. The first

36
E.g., Ark. Att’y Gen. Ops. 2001-276 (opining that a letter of suspension is an “employee evaluation/job performance record” when the letter details “the incidents that gave rise to the discipline”); 2001-244 (opining that “any document reflecting the fact of disciplinary charges brought against you, regardless of when the document was created, qualifies as a ‘job performance record”’); 1998-075 (analyzing a list containing law-enforcement officer disciplinary action). 37 Ark. Att’y Gen. Op. 2023-077 (opining that a custodian “must determine whether—based on all the facts—the
[investigator] notes were predominately the result of an internal, administrative investigation or of a standard, criminal investigation”). 38 See Ark. Att’y Gen. Ops. 2023-077 (explaining that investigator notes can be classified as employer evaluations, personnel records, or neither); 1998-001 (noting that any record concerning the employee is a personnel record). 39 Ark. Att’y Gen. Op. 2023-077 (opining that “[i]f the [investigator] notes are best characterized as a criminal investigation, then propriety of [the custodian’s] decision to withhold them from disclosure is outside the scope of an opinion under A.C.A. § 25-19-105(c)(3)(B)(i)”).

Mr. Jimmie Cavin
Opinion No. 2025-099
Page 8

question, then, is whether the former employee was suspended or terminated. From the records you provided, it appears that the former employee was suspended and later resigned before the suspension could become administratively final.

So there is a question about whether the former employee resigned in lieu of termination. This office has long concluded that if a resignation is forced—i.e., if it is offered in the face of “certain, impending termination”—then it qualifies as a “constructive termination” that meets the first element of disclosure of evaluation records.40 If the custodian determines that the former employee’s resignation was voluntary, then the employee evaluations must be withheld from release because the first element is not met. But if the custodian determines that the former employee’s resignation amounted to a constructive termination, the custodian proceeds to the remaining elements of the four-part test.

Because I am not a factfinder when issuing opinions, I cannot determine whether the elements of the four-part test have been met here.

Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

40
See generally Ark. Att’y Gen. Ops. 2024-045, 2023-077, 2012-019.