I FOIA'd Pulaski County for complaints against employees. They redacted entire pages and lots of names. Are those redactions legal under Arkansas FOIA?

Plain-English summary

Chief Elder Ean Lee Bordeaux filed a FOIA request with Pulaski County for complaints filed against County employees. The custodian gave him 18 responsive records but redacted significant portions, citing A.C.A. §§ 25-19-105(b)(12), (b)(13), and (c)(1). Bordeaux objected on three grounds: that the custodian failed to identify specific statutory exemptions, that whole-page redactions weren't justified, and that name redactions on routine documents were excessive.

Attorney General Tim Griffin found the custodian's decisions mostly consistent with FOIA, with mixed results on the specifics:

1. Whole-page redactions of evaluation records. Justified, assuming the four-part test for release of evaluation records isn't met. The FOIA "flatly prohibits releasing any portion" of an evaluation record absent the four-part test (citing Op. 2004-012). So when the custodian classifies a complete document as an evaluation, the entire document gets withheld, not redacted.
2. Name redactions under (b)(12). Some are clearly justified: documents 000032, 000033, 000034, and 000042 reference employees' medical conditions and mental health, which give rise to a substantial privacy interest. Others are not. Document 000073 is an email to HR informing the director that one employee filed a complaint against another. Redacting the sender's name there is hard to justify because the public interest in knowing who reports complaints to HR likely outweighs any minimal privacy interest.
3. Failure to identify specific exemptions. The custodian is required by § 25-19-105(a)(3)(B) to cite which exemption applies to each redaction. Bordeaux flagged this generally; the AG found only one missing citation (PDF 000045) and concluded it was likely an inadvertent error because the same redaction was properly cited on duplicate copies (000046, 000047).

The AG's bottom line: the custodian needs to do a record-by-record privacy review on the name redactions, and document why disclosure would be a "clearly unwarranted invasion of personal privacy" for each one.

This opinion is one of four in the Pulaski County complaint-records cluster (Opinions 2025-130 from the custodian's view, 2026-002 and 2026-010 from subjects' views, and this 2025-132 from the requester's view).

What this means for you

If you're a FOIA requester who got back a heavily-redacted production

Three checks:

1. Identify which exemption is cited for each redaction. § 25-19-105(a)(3)(B) requires the custodian to specify. If a redaction has no exemption citation, ask the custodian to identify it. If the custodian can't, the redaction is improper.
2. For whole-page redactions, ask whether the document is classified as an evaluation record. If it is, ask whether the employee was suspended or terminated. If they were not, you have no recourse: evaluation records can't be partially released. If they were, push the four-part test analysis.
3. For name redactions under (b)(12), ask for the privacy basis. Names alone usually don't trigger the balancing test unless tied to medical, mental-health, or sexual-harassment content. If the custodian can't articulate a privacy basis, the redaction is excessive.

You can ask the AG for a (c)(3)(B)(i) review as the requester. This opinion is exactly that: requester-initiated review.

If you're a FOIA records custodian

This opinion gives you a practical template:

• Cite the specific exemption for every redaction. Don't rely on a general statement at the cover letter level. § 25-19-105(a)(3)(B) requires per-redaction identification.
• Don't redact names by default. Apply the Young v. Rice balancing test for each redacted name. Document the privacy basis in your file. Common bases include medical/mental-health references, sexual-harassment allegations, references to children, complainants in retaliation-prone scenarios.
• For whole-page evaluation-record redactions, classify clearly. A.C.A. § 25-19-105(c)(1) requires withholding evaluation records in full unless the four-part test is met. There's no partial release of evaluation records (see Op. 2004-012).
• Mixed records require dual analysis. A complaint form is the evaluation record of the subject and the personnel record of the complainant. Apply both tests; redact the complainant's identifying information if their privacy interest is high (sexual harassment is the canonical example).

If you're a journalist building a "complaints database"

Three Pulaski County cluster opinions (2025-130, 2025-132, and 2026-010) read together give you the working framework for what gets released and what doesn't. Practical implications:

• You'll get the personnel-record portion of complaints (with complainant identifying info redacted in sensitive cases) but rarely the evaluation portion.
• Where you see whole-page redactions, the document is being classified as an evaluation. That tells you the County considers the underlying allegation to be employer-initiated or part of an investigation. That's a story by itself.
• If you suspect a custodian is misclassifying a record (treating a personnel record as an evaluation to keep it sealed), file a (c)(3)(B)(i) request as the requester: that's exactly the path Bordeaux took here.

If you're a public employee whose complaint or HR file is being FOIA'd

The complainant's privacy interest is strongest when the complaint is sensitive (harassment, discrimination, retaliation). The custodian must apply the balancing test individually for each name redaction. If you have a heightened privacy interest, write to the custodian to articulate it before the custodian makes the release decision. You can also seek a (c)(3)(B)(i) opinion as the subject.

Common questions

Q: My request asked for "all complaints filed against any County employee" but I got 18 records, half of which are mostly blacked out. What's going on?
A: Some of those documents are likely classified as employee-evaluation records. Under A.C.A. § 25-19-105(c)(1), evaluation records can't be partially released: they're either fully open (when the four-part test is satisfied) or fully sealed. The custodian's "redaction" of an entire page reflects classification, not heavy-handed redaction.

Q: What's the four-part test?
A: From § 25-19-105(c)(1):
1. The employee was suspended or terminated.
2. The action is administratively final.
3. The records were the basis for the action.
4. There's a compelling public interest in disclosure.

All four. Missing any prong means the evaluation record stays sealed in full.

Q: Are personnel records released differently?
A: Yes. Personnel records are released subject to the Young v. Rice balancing test. The custodian asks: is the information personal or intimate enough to give rise to more than a de minimis privacy interest? If yes, does the public's interest in disclosure outweigh that privacy interest? The scale is tipped toward access, so the burden is on the person resisting disclosure.

Q: When can the County legitimately redact a name?
A: When the surrounding content gives rise to a substantial privacy interest. The Arkansas Supreme Court in Stilley v. McBride recognized substantial privacy in records "revealing the intimate details of a person's life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends." Medical/mental-health references, sexual-harassment allegations, and references to children and family typically clear the bar. Routine business communications usually don't.

Q: I noticed one redaction had no exemption cited. Is that fatal?
A: § 25-19-105(a)(3)(B) requires a citation for each withholding. The AG here found one missing citation (PDF 000045) and concluded it was likely inadvertent because duplicate copies of the same email cited the exemption properly. That's a "harmless error" framing, not a clear right to demand release. But you can ask the custodian to confirm the exemption for any redaction that lacks one.

Q: What if the custodian and I disagree and the AG sided with the custodian?
A: AG opinions are persuasive but not binding. You can file suit under FOIA in circuit court for an order to compel release. The court applies the same statutory framework but can take evidence and resolve fact disputes the AG can't.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) is the statutory hook for AG review. The custodian, the requester, or the subject of certain employee-related records can ask, and the AG has five business days to respond. The opinion is non-binding but valuable: it gives custodians cover for the decisions the AG approves and gives requesters and subjects a roadmap for litigation.

The personnel/evaluation split is Arkansas-specific and built up by AG opinion and Supreme Court interpretation. Thomas v. Hall, 2012 Ark. 66, adopted the AG's three-element definition of evaluation records (created by or at the employer's behest, to evaluate the employee, detailing performance). Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, confirmed that the Court of Appeals also adopts that framework.

Mixed records, those that function as evaluations of one employee and personnel records of another, require dual analysis. Op. 2020-037 and the line of opinions following it explain how to segregate. The complaint-form-as-mixed-record analysis traces back to Op. 2023-074 and Op. 2015-129.

A note about whole-page redactions: A.C.A. § 25-19-105(f) expressly authorizes segregation and partial release for personnel records. But there's no parallel authority for partial release of evaluation records, and Op. 2004-012 reads the FOIA to "flatly prohibit" partial release of evaluation records. So when you see a whole page blacked out, the underlying record is almost always an evaluation.

Citations and references

Statutes:
- A.C.A. § 25-19-103, definitions
- A.C.A. § 25-19-105: exemptions 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
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (2019), Court of Appeals adopting AG's definition

Companion opinions in this Pulaski-County complaint-records cluster:
- Op. 2025-130 (custodian's view, "at the behest" analysis)
- Op. 2026-002 (subject's view, supervisor-created memo classified as evaluation)
- Op. 2026-010 (different subject, mixed-record analysis with redaction-consistency issues)

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. 2025-132

January 6, 2025

Chief Elder Ean Lee Bordeaux
1719 Broadway Street
Little Rock, Arkansas 72206

Dear Mr. Bordeaux:

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 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.

You submitted a FOIA request to Pulaski County for complaints against Pulaski County employees. The custodian has provided you with 18 responsive records. Portions of these records have been redacted, and the custodian has cited A.C.A. § 25-19-105(b)(12), (b)(13), and (c)(1) as the bases for the redactions. You object to these redactions, and you claim that the custodian has failed to identify specific statutory exemptions. You ask whether the custodian's decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision to release the records as redacted is mostly consistent with the FOIA. Assuming that the four-part test for release of evaluation records has not been met, the custodian has properly withheld those portions of records deemed evaluation records. Some employees clearly have a substantial privacy interest in the information contained in the complaints, which justifies redacting their names under the personnel records balancing test. But whether other employees whose names were redacted under the balancing test have a heightened privacy interest is less clear. The custodian must assess each complaint individually to determine whether disclosing employees' names would constitute a clearly unwarranted invasion of personal privacy.

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, which is 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. Accordingly, given that I have no information to suggest that the presumption can be rebutted, I will focus on whether any exceptions prevent the documents' disclosure.

The FOIA contains two exemptions for two groups of documents normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two distinct groups: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly. When custodians assess whether either of these exceptions applies to a particular record, they must first decide whether the record meets the definition of the relevant exception and then apply the appropriate test to determine whether the FOIA requires that record be disclosed.

2. Personnel records. While the FOIA does not define the term "personnel records," this office has consistently opined that personnel records are all records that pertain to an individual employee and were not created by or at the behest of the employer to evaluate the employee. 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 de minimis privacy interest. If the privacy interest is minimal, then the records should be disclosed. Second, if the information does give rise to a greater than de minimis 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 interest. 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 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 the FOIA likewise does not define. But the Arkansas Supreme Court has adopted this office's view that such records are (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:

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 in order to promote honest exchanges between employees and their employers.

4. Mixed records. Some employee-related records are "mixed records," which means they are (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record. When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Classification of the records. Most of the documents you have provided for my review are mixed records. Some constitute both the personnel records of employees who filed the complaints and of other employees mentioned in the complaints. And those complaints that were submitted at the behest of the employer can be classified as the evaluation records of the complaint subjects. Likewise, records generated while investigating allegations of misconduct that detail the incidents underlying the allegations are best classified as the evaluation records of the investigated employees.

6. Redactions under A.C.A. § 25-19-105(c)(1). You object to the custodian's decision to "redact entire pages" from the records produced. The only sizeable redactions appear to be made under A.C.A. § 25-19-105(c)(1), which exempts employee-evaluation records. I gather that the custodian classified these records, or portions of them, as evaluation records because they were created by or at the employer's behest to evaluate an employee. Such records cannot be released unless the above four-part test for disclosure is satisfied. If the test is not satisfied, the evaluation records must be withheld in their entirety. Therefore, assuming each record is properly classified as an evaluation record and the test for release has not been met, the custodian's decision to withhold the entire record is consistent with the FOIA.

7. Redactions under A.C.A. § 25-19-105(b)(12). You also object to the custodian's decision to redact employee names under A.C.A. § 25-19-105(b)(12)'s personnel records balancing test. Documents that qualify as personnel records must be disclosed except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court has recognized a substantial privacy interest "in records revealing the intimate details of a person's life, including any information that might subject the person to embarrassment, harassment, disgrace, or loss of employment or friends." Whether the release of any particular personnel record meets this standard is a question of fact. Therefore, the custodian must review each personnel record individually to determine if its release would constitute a clearly unwarranted invasion of personal privacy.

This office has previously observed that there may be instances where a mixed record meets the test for release for one person but should be withheld for another person. For example, a complaint may serve as an employee evaluation of the person complained about, and if the four-part test for release of evaluation records is satisfied, the record must be disclosed. But the same complaint may also constitute a personnel record of the complainant who, depending on the allegations, may have a significant privacy interest in the record. In such cases, this office has held that the record should be released but the complainant's identifying information must be redacted to protect his or her privacy interest.

Here, the custodian has redacted multiple names from complaint forms, presumably to protect the privacy interests of those employees. In some cases, the employees' privacy interests are apparent from the face of the records. For example, documents numbered "000032," "000033," "000034," and "000042" reference employees' medical conditions and mental health. In other records, however, the reasons for the redactions are less clear. For instance, record "000073" appears to be an email to Human Resources informing the director that one employee has filed a complaint against another. Yet the sender's name is also redacted. If the sender is merely reporting that one person has a complaint against another, it is difficult to identify any significant privacy interest in disclosing the sender's name. That said, I do not have access to all the facts surrounding the complaint, so some privacy interests may exist that are not immediately apparent.

8. Identifying exemptions. Finally, you assert that the custodian has "fail[ed] to identify specific statutory exemptions." You are correct that the FOIA requires a custodian to identify which exemptions apply to any withheld responsive records. But I only see one instance, in the PDF numbered "000045," where the redaction does not list an exemption. The following PDFs, numbered "000046" and "000047," are email chains that duplicate the information found in 000045, and they list the applicable exemption for the redacted portion of 000045 as A.C.A. § 25-19-105(c)(1). Therefore, I conclude that the omission in 000045 was likely an error.

Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General