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 "any and all public records that pertain to the violation of the ethics code and subsequent action by the Sheriff's Office" relating to officers meeting on duty with a sheriff candidate. The custodian (Captain Pevehouse) identified an internal-investigation report as responsive and intended to release it. None of the involved deputies were suspended or terminated. The custodian asked the AG to confirm.
The AG says no, do not release.
The internal-investigation report is an "employee-evaluation or job-performance record" under FOIA. Three elements define that category: created by or at the behest of the employer; to evaluate the employee; detailing the employee's performance or lack of performance on the job. Records created during an investigation into employee misconduct are squarely within this category, even when investigating allegations rather than confirmed misconduct.
Employee-evaluation records cannot be released unless all four conditions in A.C.A. § 25-19-105(c)(1) are satisfied:
- The employee was suspended or terminated;
- The suspension or termination is administratively final;
- The record formed a basis for the discipline; and
- The public has a compelling interest in disclosure.
Here, no deputy was suspended or terminated. Element one fails. The record stays confidential.
The AG also gently corrects the custodian's process. The opinion notes the custodian "do[es] 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.'" The right approach is to first classify the record, then apply the appropriate test.
What this means for you
If you are a sheriff's office or police department records custodian
Internal-investigation reports about on-duty officer conduct are employee-evaluation records, not personnel records. That distinction matters because the release test is much stricter:
- Personnel record: Apply Young v. Rice balancing test (release unless privacy interest outweighs public interest).
- Employee-evaluation record: All four (c)(1) elements required for release.
If you are inclined to release an internal-investigation report, walk through the four elements in writing first. If even one element fails (especially the suspension-or-termination element), withhold the record.
If you are a journalist or accountability advocate seeking police records
This opinion is a meaningful constraint. An internal investigation into deputies' on-duty conduct that did not result in suspension or termination is exempt, even if you believe the underlying conduct is newsworthy. Strategies to consider:
- Frame requests around outcomes that did result in suspension or termination, where the four-element test can be met.
- Request the underlying complaint (if from a third party, it is a personnel record under the Fountain Lake analysis in Opinion 2025-121).
- Pursue alternative paths: open meetings, sheriff's public statements, court filings, or news of any criminal charges.
If you are a sheriff facing political controversy and want to release a report
You cannot legally release an employee-evaluation record just because you want transparency. The four-element test is statutory. If you want the public to see your office's investigation, you have two options: (a) take suspension or termination action and release the report once it is administratively final, or (b) ask the General Assembly to amend § 25-19-105(c)(1) to permit voluntary disclosure. As long as the statute stands, releasing the report without meeting the four elements puts your office on the wrong side of the FOIA.
If you are a deputy or officer who was investigated but not suspended or terminated
The internal-investigation report stays confidential. A future request from another media outlet, candidate, or member of the public should hit the same bar: no release without the four elements met.
Common questions
Why is an internal-affairs report an "evaluation," not a "personnel record"?
Because it was created by the employer to evaluate the employee's on-the-job conduct. Personnel records are records about the employee that were not created at the employer's behest for evaluation purposes.
What if the report is bundled with witness statements from third parties?
Mixed records get split. The third-party witness statement that was solicited by the employer to investigate the officer is part of the evaluation record. An unsolicited complaint from a parent or community member that triggered the investigation is a personnel record. Apply the appropriate test to each portion. See Opinion 2025-121 for the personnel-vs-evaluation analysis.
Does it matter if the public is angry about the underlying conduct?
The fourth element of the (c)(1) test is "compelling public interest in disclosure." For police officers, the AG has previously held that there is usually a compelling public interest in records reflecting policy violations (see Opinion 2025-090). But that fourth element only kicks in if the first three are met. Here, the first element (suspension or termination) fails, so the public-interest analysis never starts.
What if a deputy resigned during the investigation?
The release test requires "suspension or termination." A resignation is generally not either. Some custodians have treated involuntary resignation as a constructive termination, but Arkansas case law on the point is thin. Conservative approach: treat resignations as not satisfying element one.
Could a court compel release through discovery in a lawsuit?
The FOIA exemption is from records-disclosure law, not from court discovery. Different rules govern subpoenas. Material that FOIA exempts can sometimes be obtained through litigation discovery.
What if I want to know whether the deputies were ever disciplined later?
A separate FOIA request for personnel-action records (suspensions, terminations, disciplinary letters with administrative finality) could be productive. If there was discipline that later became final, the underlying report may become releasable under (c)(1).
Background and statutory framework
FOIA release elements. Three elements: request to a covered entity, public-record status, no exemption applies. Sebastian County is covered.
Personnel record vs employee-evaluation record. AG analysis treats these as two distinct categories with different release tests. Personnel records use the Young v. Rice balancing test under § 25-19-105(b)(12). Employee-evaluation records use the four-element test under § 25-19-105(c)(1).
Three-element evaluation-record definition. Thomas v. Hall, 2012 Ark. 66; Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466. Created by or at the behest of the employer; to evaluate the employee; detailing performance or lack of performance.
Investigation records as evaluation records. AG Opinion 2015-057 (collecting prior opinions): the evaluation-record category includes records "generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct."
Four-element release test. A.C.A. § 25-19-105(c)(1):
- Suspension or termination
- Administrative finality
- Record formed the basis for the discipline
- Compelling public interest
Solicited statements. AG Opinion 2003-257 holds 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.'"
Sexual-harassment investigations as evaluation records. AG Opinion 1998-001 holds 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.'"
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 County 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 Sch. 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
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
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.
DISCUSSION
- 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 Sebastian County, a public entity subject to the FOIA. And the record at issue appears to be a public record. Because the record is held by a public entity, it is presumed to be a public record, 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 document's disclosure.
For FOIA purposes, documents in a public employee's file can usually be divided into two distinct groups: "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 "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.
- 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. "This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct."
If a document qualifies as an employee-evaluation record, the document cannot be released unless all the following elements have been met:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
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The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).
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Application. Records created as part of an employer's investigation into complaints about an employee's conduct qualify as employee-evaluation records. 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.
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