A sheriff's office wants to release an internal-investigation report about deputies meeting with a sheriff candidate while on duty. Can they?

Plain-English summary

Sebastian County received a FOIA request for records about deputies' on-duty meeting with a sheriff candidate and the Sheriff's Office's response. Captain Philip Pevehouse identified an internal-investigation report and planned to release it. He told the AG that none of the employees involved had been suspended or terminated.

After reviewing the report, the AG classified it as an employee-evaluation record. The Sheriff's Office created it to evaluate the named employees' on-the-job conduct, and it detailed their performance. Under A.C.A. § 25-19-105(c)(1), such a record may be released only if all four conditions are met: suspension or termination, final administrative resolution, use of the record as a basis for that decision, and compelling public interest in disclosure. The first condition was absent, so the AG concluded the proposed release was inconsistent with FOIA.

The opinion addresses this internal report. It does not classify an underlying complaint, consider splitting a mixed record, identify a route to voluntary disclosure, or decide how an unrelated future disciplinary action would affect the report.

What this means for you

If you handle a law-enforcement FOIA request

Identify how the requested record was created and what it contains before applying a release test. Here the employer's internal investigation report was an evaluation record, and no employee had been suspended or terminated. The AG said it could not be released. Interest in transparency does not remove the statutory conditions for this record.

If you requested this report

The AG's conclusion turns on the type of record and the absence of suspension or termination. He did not decide whether other records about the incident exist or how they would be classified. Do not assume the report becomes releasable merely because an investigation ended; every statutory condition must be met.

Common questions

Why did the AG classify the report as an evaluation record?

The Sheriff's Office made it to evaluate the employees involved, and it detailed their job performance. The opinion says records generated while investigating alleged employee misconduct can fall within that category.

Could the custodian release it because the office wants to be transparent?

Not under the facts reviewed. The AG said release of this evaluation record was inconsistent with FOIA because no involved employee had been suspended or terminated.

Would a final suspension alone make the report public?

No. For an evaluation record, the record must also have formed a basis for the decision, there must be final administrative resolution, and the public must have a compelling interest in disclosure. The opinion did not assess those conditions because the first one failed.

Did the AG decide whether an unsolicited complaint is public?

No. He reviewed the internal-investigation report. The opinion does not discuss a separate unsolicited complaint or apply the personnel-record test to one.

Background and statutory framework

A.C.A. § 25-19-105(c)(1) establishes the four conditions for releasing employee-evaluation records. The AG described that category as records created by or for an employer to evaluate job performance, including some misconduct-investigation records. He applied those rules to the report supplied by the custodian and found that the absence of suspension or termination ended the disclosure inquiry.

Citations

Statutes:

• A.C.A. § 25-19-103 (FOIA definitions)
• A.C.A. § 25-19-105 (exemptions; (b)(12) personnel; (c)(1) evaluation release; (c)(3) AG review)

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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Davis v. Van Buren School Dist., 2019 Ark. App. 466, 572 S.W.3d 466

Other AG opinions referenced:

• 2015-057 (collecting investigation-record opinions)
• 2003-257 (solicited statements as evaluation records)
• 1998-001 (sexual-harassment investigations as evaluation records)
• 2008-065 (compelling public interest)
• 2024-018, 2023-050 (school district as FOIA entity)
• 2009-067, 2006-038, 2003-073, 1995-351, 1993-055 (evaluation-record definition lineage)

Source

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

Original opinion text

Opinion No. 2025-111

October 29, 2025

Captain Philip Pevehouse
Sebastian County Sheriff’s Office
800 South A Street
Fort Smith, Arkansas 72901

Dear Captain Pevehouse:

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

On October 24, 2025, Sebastian County received a FOIA request for “any and all public records that pertain to the violation of the ethics code and subsequent action by the Sheriff’s [O]ffice” related to officers meeting with a “Sebastian County Sheriff candidate” while on duty. You report that none of the employees involved were suspended or terminated. You have identified an internal-investigation report as responsive to the request and have provided an unredacted copy of the report for my review.

You do not say how you have classified the internal-investigation report or whether you intend to redact any portion of it. Instead, you simply state that your “intention is to release the information,” and you ask me to review that decision.

RESPONSE

In my opinion, the internal-investigation report is properly classified as an employee-evaluation record. Because none of the employees involved were suspended or terminated, the four-part test for release of employee-evaluation records does not appear to be met. Thus, your decision to release the internal-investigation report is inconsistent with the FOIA.

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

Captain Philip Pevehouse
Sebastian County Sheriff’s Office
Opinion No. 2025-111
Page 2

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 Sebastian County—a public entity subject to the FOIA. 2 And the record at issue appears to be a public record. 3 Because the record is held by a public entity, it is presumed to be a public record, 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 document’s 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 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. In this instance, it is apparent that the record at issue is best classified as an employee evaluation. I will, therefore, limit my discussion to records of that type.

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. 2024-018, 2023-050.
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”).

Captain Philip Pevehouse
Sebastian County Sheriff’s Office
Opinion No. 2025-111
Page 3

2. Employee-evaluation records. These 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. 8 “This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.” 9

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). 10

3. Application. Records created as part of an employer’s investigation into complaints about an
   employee’s conduct qualify as employee-evaluation records. 11 This internal-investigation report was created by or at the behest of the Sebastian County Sheriff’s Office to evaluate the employees named within the report, and it details their performance or lack of performance on the job. Therefore, it constitutes an employee-evaluation record. As an employee-evaluation record, it 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.

8
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. 9 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
10
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
11
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’”).

Captain Philip Pevehouse
Sebastian County Sheriff’s Office
Opinion No. 2025-111
Page 4

In this case, as noted above, none of the employees involved has been suspended or terminated, so the four-part test for disclosure has not been satisfied. Thus, the custodian’s decision to release the internal-investigation report is inconsistent with the FOIA.

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

Sincerely,

TIM GRIFFIN
Attorney General