When a county employee files a complaint about a coworker or supervisor under the county's personnel policy, is that complaint a 'personnel record' (mostly disclosable) or an 'employee evaluation' (mostly sealed)?

Plain-English summary

The Pulaski County Attorney, Adam Fogleman, asked the AG for a custodian's-eye review under A.C.A. § 25-19-105(c)(3)(B)(i) before releasing two sets of records responsive to a FOIA request for "[a]ll complaints filed against any Pulaski County employee, supervisor, or official within the past five (5) years." The two sets:

• Misconduct complaint set. An employee had a heated exchange with a supervisor, the employee was reprimanded, and the employee then emailed HR to begin a misconduct investigation. The set contains two emails, a reprimand, and a memo to file.
• Harassment complaint set. An employee emailed HR alleging harassment by a supervisor or department head. The HR Director forwarded internally; days later HR notified the employee an investigation was beginning, and the employee responded with additional information.

The custodian had classified all of the documents in both sets as "mixed records" and intended to release them with redactions. Attorney General Tim Griffin walked through the classification carefully and concluded the custodian's plan was partially consistent with FOIA. The breakdown:

Personnel records (releasable with privacy redactions):
- The original, unsolicited complaint emails from employees (March 28, 2021 emails in the harassment set; the misconduct-set emails). These are personnel records of both the employee filing and the employee being complained about. Under the Young v. Rice balancing test, they get released; identifying information of the complainant gets redacted where there's a heightened privacy interest.

Evaluation records (sealed unless four-part test is met):
- The reprimand and memo to file from the misconduct set.
- The April 6-8, 2021 emails in the harassment set (HR's notice of investigation and the employee's investigation-response email).
- Any related supervisor incident reports, memoranda, transcripts of investigations.

The doctrinal core: the AG had to decide whether complaints filed under the County's Personnel Policy were "at the behest" of the County. If yes, they're evaluation records (mostly sealed). If no, they're personnel records (mostly released).

The AG said no, on two grounds:

1. Plain meaning of "behest." Webster's defines behest as "a command or directive" or "an earnest or strongly worded request." The Personnel Policy invites employees to file complaints; it doesn't command them, and it doesn't impose ramifications for failing to file. So a complaint filed under the Policy is not "at the behest" of the County.
2. Long line of AG opinions. Original, unsolicited complaints are personnel records, not evaluations (Ops. 2025-099, 2001-191, 1998-001, 1996-257). The complaint isn't created for evaluation purposes; it's initiated by the employee. It's not part of an investigation; the investigation comes after. And when an unsolicited oral complaint is reduced to writing as a routine administrative act, the complaint document still doesn't become an evaluation record.

The AG then sliced through each set:

• Misconduct set emails: personnel records, release with redactions.
• Misconduct set reprimand and memo to file: evaluation records (created by employer to evaluate). Because no party was suspended or terminated, four-part test fails, withhold in full.
• Harassment set, March 28-29 emails: personnel records, release with redactions.
• Harassment set, April 6-8 emails: evaluation records (created as part of investigation). Because supervisor/department head was not suspended or terminated, four-part test fails, withhold in full.

This opinion is the custodian's piece of the broader Pulaski County complaints cluster (along with Op. 2025-132 from the requester and Ops. 2026-002 and 2026-010 from subjects).

What this means for you

If you're a FOIA records custodian for an Arkansas county

Two principles to encode in your decisions:

1. The "behest" test requires command, not invitation. A personnel policy that allows or facilitates complaints is not a command. The mere fact that an employee filed a complaint doesn't make the complaint an evaluation record. Look for whether the policy required the complaint or imposed consequences for non-filing.

2. Watch the timeline. A complaint that initiates an investigation is a personnel record. Documents created after HR or a supervisor opens the investigation become evaluation records (incident reports, witness statements, investigation correspondence, reprimands, memos to file). The classification can change between two emails sent days apart by the same person.

A practical sorting heuristic for a complaint cluster:

• Original complaint email/letter from employee → personnel record
• Forwarding emails between HR personnel that just route the complaint → likely personnel records
• HR notice "we're starting an investigation" + employee's response with more information → evaluation records (now part of the investigation)
• Witness interview transcripts, supervisor incident reports, memos to file → evaluation records as "preliminary notes and other materials"
• Final reprimand or discipline letter → evaluation record

If you're an employee who filed a workplace complaint

If you filed on your own initiative under your employer's personnel policy, your complaint email is generally a personnel record. That means it can be FOIA'd and released, with your identifying information redacted only if you have a heightened privacy interest (sexual harassment is the canonical example). If you don't want your complaint released, talk to your county attorney about the privacy-balancing analysis and what specific facts give rise to a privacy interest.

If your supervisor or HR opened an investigation in response, the documents created during that investigation are evaluation records. Those are sealed unless you (or the subject of the investigation) are suspended or terminated and the other prongs are met.

If you're a manager investigating a complaint

Your incident reports, memoranda, and investigation correspondence are evaluation records once the investigation is open. Document them with the assumption that they'll be sealed unless an officer is later suspended or terminated. Don't treat them as informal, § 25-19-105(c)(1) covers "preliminary notes and other materials" too.

If you're a journalist requesting these records

Three practical takeaways from this cluster:

1. The complaint email itself is generally available. Ask for the original complaints; they're personnel records.
2. The investigation files are generally not. Unless the employee was suspended or terminated, the investigation file stays sealed.
3. A "personnel policy" doesn't transform complaints into evaluations. If a custodian tries to seal complaints by arguing they were "at the behest" of the agency under a personnel policy, push back with this opinion.

If you're a public-records litigator

Op. 2025-130 is a useful piece of authority on the meaning of "at the behest." The plain-meaning analysis (using Webster's definition of "behest") combined with the long line of supportive AG opinions creates a clean argument structure for plaintiffs claiming a custodian misclassified an unsolicited complaint.

Common questions

Q: My HR policy says employees "shall" report harassment. Is that a "behest"?
A: It's closer to a behest than a permissive policy, but the AG's analysis here suggested that without consequences for non-filing, even a "shall" policy may not impose enough urgency to constitute a behest. Each policy needs to be analyzed on its specific language.

Q: What happens when an unsolicited oral complaint gets written down by HR as a routine administrative step?
A: It's still a personnel record. Per Op. 2001-191, an unsolicited oral complaint reduced to writing as a routine administrative act, and not as a result of a decision to investigate, doesn't become an evaluation record.

Q: How does this differ from Op. 2026-002 (the supervisor's memo)?
A: In Op. 2026-002, the supervisor created a memo on her own initiative describing the employee's complaints, and the supervisor filed a discrimination/harassment form on the employee's behalf against the employee's wishes. That's the supervisor (an arm of the employer) creating records to evaluate the employee. Under the Thomas v. Hall three-element definition, that's an evaluation record.

In this Op. 2025-130, by contrast, the employee sent the original complaint emails. The employee initiated. That's personnel record.

The line is who created the document and what their role was when they did.

Q: When does an investigation start (turning later documents into evaluations)?
A: When the employer makes a decision to investigate. The opinion uses HR notifying the employee that an investigation is beginning as the marker. Anything before that point is generally a personnel record; anything after is generally an evaluation record.

Q: Can the County release the personnel-record portions and withhold only the evaluation-record portions?
A: Yes, that's exactly what § 25-19-105(f) allows for personnel records: segregate and release. For evaluation records, no: they're either fully releasable (if the four-part test is met) or fully withheld.

Q: Does this apply to private employers?
A: No. FOIA applies to public agencies. Private employers' workplace complaints are governed by entirely separate frameworks (employment law, privacy law, contractual confidentiality).

Background and statutory framework

Arkansas FOIA's personnel-record / evaluation-record split is built on three elements established in Thomas v. Hall, 2012 Ark. 66:

1. The record was 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.

If all three are met, it's an evaluation record. If any one is missing, it's a personnel record (assuming it pertains to the employee).

The "at the behest" test is the linchpin. The AG draws it from common dictionary usage of "behest": command, directive, or earnest/strongly-worded request. The AG looks for institutional pressure on the employee to create the record. A personnel policy permitting complaints doesn't impose pressure; an employer telling an employee "write this up" does. The line shifts when an investigation opens: at that point, documents the employer prepares (or directs others to prepare) for investigation purposes are at the employer's behest.

The "preliminary notes and other materials" language in A.C.A. § 25-19-105(c)(1) extends the evaluation-record exemption to incident reports, memoranda, witness-statement transcripts, and other documents from which the formal evaluation is later prepared. The Arkansas Supreme Court in Thomas v. Hall read this language to cover supervisors' incident reports, memoranda, and transcripts of investigations including witness statements.

The historical AG line on unsolicited complaints traces back to Op. 1996-257 and continues through Ops. 1998-001, 2001-191, and 2025-099. The throughline: an employee's original, unsolicited complaint is the employee's complaint, not the employer's evaluation, even when the policy contemplates that complaints will trigger investigations.

Citations and references

Statutes:
- A.C.A. § 25-19-103, definitions
- A.C.A. § 25-19-105: exemptions, four-part test, and (c)(3)(B)(i) review

Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (2012), three-element FOIA disclosure test
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), rebuttable public-record presumption
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), personnel-records balancing test
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), substantial privacy in intimate-detail records
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (2012), evaluation-record three-element definition; preliminary-notes coverage
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (2019), Court of Appeals adopting AG's definition
- Wickham v. State, 2009 Ark. 357, 324 S.W.3d 344 (2009), plain-meaning canon for statutory phrases

AG opinion line on unsolicited complaints as personnel records:
- Op. 1996-257
- Op. 1998-001
- Op. 2001-191
- Op. 2025-099

Companion opinions in this Pulaski-County complaint-records cluster:
- Op. 2025-132 (requester's view)
- Op. 2026-002 (subject's view, supervisor-created memo as evaluation)
- Op. 2026-010 (different subject, mixed-record analysis)

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. 2025-130

December 22, 2025

Mr. Adam Fogelman
Pulaski County Attorney
201 South Broadway, Suite 400
Little Rock, Arkansas 72201

Dear Mr. Fogelman:

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.

According to correspondence you provided our office, Pulaski County received a FOIA request for "[a]ll complaints filed against any Pulaski County employee, supervisor, or official within the past five (5) years, regardless of whether the complaint resulted in disciplinary termination," as well as "[a]ny correspondence or documentation indicating that these complaints were forwarded to or processed by the Pulaski County Clerk's Office or Human Resources."

You note that, under the County's Personnel Policy, "any employee having a complaint of discrimination or harassment against a department director or elected officer shall notify the Human Resources Department [(HR)] who shall conduct the investigation." While "complying with the County's adopted Personnel Policy," employees sometimes contact HR "to file a complaint by telephone or email." HR then emails the employee the County's complaint form and asks the employee to complete the form. But "sometimes County employees will comply with the County's adopted Personnel Policy by providing a written complaint that is not on the county's provided form, thus negating the need for the form to be completed."

You have provided both redacted and unredacted copies of two sets of records you intend to release. And you note that these two sets illustrate instances of employees "providing a written complaint that is not on the County's provided form." The first set contains a complaint submitted to HR after HR requested the County's form be completed, as directed by the County's Personnel Policy. In this case, the "employee did not use the form but instead emailed a response to detail incidents" that led to the allegation of misconduct. For convenience, I will refer to this set of records as the "misconduct complaint." The second set contains a complaint, also not on the County's form, submitted to HR as directed by the County's Personnel Policy when the employee believes that he or she has been subjected to harassment by a supervisor or department head. For convenience, I will refer to this second set of records as the "harassment complaint."

In the redacted records provided to this office, you have redacted each document as a mixed record, that is, more than one person's evaluation, at least one person's evaluation and at least one other person's personnel record, or more than one person's personnel records. You have asked my opinion as to whether your proposed redactions are consistent with the FOIA.

RESPONSE

In my opinion, your decisions are partially consistent with the FOIA. As discussed more fully below, unsolicited complaints regarding coworkers or supervisors are personnel records. A supervisor's incident reports, memoranda, and transcripts of investigations are "preliminary notes and other materials." Thus, they are exempt from disclosure when the four-part test for release of employment evaluations is met. Finally, the County's Personnel Policy is administrative in nature, and employee complaints submitted under that policy are not considered to be "at the behest" of the County.

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.

The first two elements appear to be met. The request was made to Pulaski County, 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 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" and "employee evaluation or job performance records." Personnel records are records that pertain to an individual employee that were not created by or at the behest of the employer to evaluate the employee. 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.

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." 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 the scale tipped in favor of public access," has two steps.

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. 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.

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. The fact that the subject of the records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

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. 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.

3. Employee-evaluation records. The second relevant exception is for "employee evaluation or job performance records," which "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:

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).

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process to promote honest exchanges between employees and their employers.

4. "Preliminary notes and other materials." As part of the employee-evaluation exception, A.C.A. § 25-19-105(c)(1) also exempts "preliminary notes and other materials" from disclosure when the four-part test is met. This office has opined that the intent of A.C.A. § 25-19-105(c)(1) is to exempt "not only of the 'end product,' i.e., the evaluation itself, but also other documents from which the evaluation report was prepared." Thus, supervisors' incident reports, memoranda, transcripts of investigations including witness statements, and other reports on which employee evaluations are based, are exempt when the four-part test is satisfied. In contrast, "documents routinely created by employees in the course of their duties do not [fall within the employee-evaluation exemption]." And these routinely created documents do not later become employee evaluations simply because they are used in an investigation of the employee.

5. "At the behest." Employees making their original, unsolicited complaints against a coworker or supervisor under the County's Personnel Policy are not acting "at the behest" of the County for two reasons.

First, in construing a phrase, I must give "the words their ordinary and usually accepted meaning in common language." The ordinary and usually accepted meaning of "behest" is "a command or directive" or "an earnest or strongly worded request." The meaning of "behest" suggests urgency, as well as ramifications if the person commanded does not comply with the directive. As you have described it, the Personnel Policy does not impose urgency or ramifications for failing to file a complaint. So the unsolicited complaints at issue here are not "at the behest" of the County.

Second, this office has long held that original, unsolicited complaints are personnel records and not employee evaluations. Because an employee initiated the complaint process, the complaint was "not created for evaluation purposes." Further, unsolicited complaints are "not created as a part of an investigation into a complaint." Finally, when "an unsolicited oral complaint [is] placed in writing as a routine administrative act, and not as a result of a decision to investigate the particular complaint, the complaint document … cannot be said to have been created as a result of a decision to investigate or evaluate the employee." As you have described it, the Personnel Policy is administrative in nature and, therefore, the unsolicited complaints were not made "at the behest" of the County. Instead, they are properly classified as personnel records.

6. The misconduct complaint. In this example, an employee and a supervisor had a heated exchange that resulted in the employee receiving a reprimand and the employee contacting HR to begin an investigation regarding possible misconduct. This sample contains two emails from the employee to HR, the reprimand, and a memo to file.

As discussed above, the emails are best classified as personnel records because they were not created by the employer to evaluate an employee. A coworker's complaint about a public employee is a personnel record. It is not transformed into an employee-evaluation record because of a subsequent investigation. As personnel records, the emails must be released when the public's interest in the records outweighs the employee's privacy interest. The custodian has also correctly redacted discrete pieces of information that would be a "clearly unwarranted invasion of privacy" to the employee, as well as a reference to a separate employee evaluation. Thus, the custodian's decision to release the emails, as redacted, is consistent with the FOIA.

But the reprimand and the memo to file are best classified as employee evaluations because they were created by the employer to evaluate either the employee or the supervisor. These documents detail performance or lack of performance by the employee or the supervisor. Finally, the four-part test for release of these employee-evaluation records has not been met because neither party was suspended or terminated. So the custodian's decision to withhold these documents is consistent with the FOIA.

7. The harassment complaint. In this example, an employee contacted HR to begin an investigation of a supervisor or department head regarding possible harassment. This sample contains three documents of multiple emails, but for clarity, I will discuss each email separately.

On March 28, 2021, an employee submitted an email complaint to the general HR email address regarding a supervisor or department head. On March 29, 2021, the general HR email address forwarded the complaint to the HR Director, who then forwarded it to the County Judge. On April 6, 2021, the HR Director notified the employee that HR was beginning an investigation. The employee responded to the HR Director with additional information on April 8, 2021.

The emails dated March 28-29, 2021, are best classified as personnel records because they were not created by the employer to evaluate an employee. As personnel records, the emails must be released when the public's interest in the record outweighs the employee's privacy interest. And the custodian has correctly redacted discrete pieces of information that would be a "clearly unwarranted invasion of privacy." Thus, the custodian's decision to release the emails, as redacted, is consistent with the FOIA.

But the emails dated April 6-8, 2021, are best classified as employee evaluations because they were created as part of the investigation of the supervisor or department head. These documents detail performance or lack of performance by the supervisor or department head. Finally, the four-part test for release of these employee-evaluation records has not been met because supervisor or department head was not suspended or terminated. Therefore, the custodian's decision to withhold these documents is consistent with the FOIA.

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

Sincerely,

TIM GRIFFIN
Attorney General