If my supervisor wrote a memo about a conversation we had and filed a discrimination/harassment complaint against my wishes, can the County release those records under FOIA?
Plain-English summary
Pulaski County received a FOIA request for complaints against County employees. Among the records the custodian planned to release was a memorandum the County prepared describing a conversation in which Ms. Taggart had voiced concerns about her work environment, plus a discrimination and harassment complaint form completed by her supervisor on Taggart's behalf, but against Taggart's wishes. The custodian classified these as personnel records and intended to release them with redactions. Taggart, as the subject, asked the AG to review.
Attorney General Tim Griffin reversed the classification. The records are not personnel records; they are employee-evaluation records. Why?
- A record created by the employer to evaluate an employee's performance, or the employee's lack of performance on the job, is an evaluation record. The supervisor's memo described Taggart's complaints about her work environment, which is treated as an explanation for her performance or lack of performance. Op. 2005-271 already established that an exit interview detailing the work environment becomes an evaluation. Op. 2002-204 said the same about anonymous internal-survey comments mentioning a particular employee.
- The supervisor then filed a discrimination and harassment complaint form on Taggart's behalf, against her wishes. That complaint, plus the memo, were created by the employer and could imply Taggart was unwilling to comply with the County's personnel policies. That puts them squarely in evaluation-record territory.
- Evaluation records cannot be disclosed unless the four-part test is met: suspension or termination, administrative finality, relevance, and compelling public interest. Without all four, the records must be withheld.
The AG specifically did not rule on whether all four prongs were met. He didn't have access to all the surrounding facts. The classification ruling alone, though, flips the default: instead of "release with redactions" it becomes "withhold unless the four-part test is satisfied."
This opinion sits inside the same Pulaski County FOIA cluster as Opinions 2025-130, 2025-132, and 2026-010. They are related but address different facts and different requesters.
What this means for you
If you're the subject of a workplace complaint someone filed about you (or "for" you)
The classification matters more than anything else. If the document is an evaluation record, it stays sealed in almost all cases. If it's a personnel record, it gets released after a privacy-balancing review.
Two things that push a record into evaluation-record territory:
- The employer created it. A supervisor's memo describing a conversation with you, an HR-prepared complaint form, an internal incident report: all "created by the employer."
- It evaluates your performance or lack of performance. This is broader than it sounds. Notes about your work environment count, because work environment is treated as a window into performance.
If both apply, ask your county attorney or HR to classify the record as an evaluation record under § 25-19-105(c)(1) and apply the four-part test. If you've never been suspended or terminated, the record almost always stays sealed.
If you're a FOIA records custodian
This is a "watch the document, not the label" opinion. Don't classify a record as a "personnel record" just because it's filed in a personnel folder. Run through the test:
- Was the record created by or at the behest of the employer? (Personnel-Policy-driven complaints from coworkers don't count as "at the behest", see Op. 2025-130.)
- Was it created to evaluate the employee?
- Does it detail performance or lack of performance?
If yes/yes/yes, it's an evaluation record. Apply the four-part test. If the test isn't satisfied, withhold the record in full. Don't release "with redactions": the FOIA expressly forbids partial release of evaluation records.
If you're a manager writing memos about employee conversations
Be aware that what you write in a "memo to file" can be FOIA-protected as an evaluation record only if the four-part test is satisfied. If the employee is later suspended or terminated based on those memos, the memos may have to be released. Conversely, if the employee remains employed, the memos generally stay sealed. Write them with the assumption that an opinion-writer at the AG's office may someday read them.
If you're an employee filing a complaint
If you initiate the complaint yourself (and not at the employer's command), Op. 2025-130 holds that your original, unsolicited complaint is a personnel record, not an evaluation record. That means it can be released after a privacy review. If you have a heightened privacy interest (the complaint involves harassment or sensitive personal facts), your identifying information may be redacted. But the document itself can be released to a requester.
If, however, you don't want a complaint to be filed and your supervisor files one on your behalf or at the employer's behest, that complaint becomes an evaluation record of the subject of the complaint.
If you're a journalist requesting these records
Expect the County to withhold most evaluation records in full. Your strongest path is to focus on cases where the employee was actually suspended or terminated, the action is administratively final, the records were the basis, and the public interest in the conduct is compelling. Without all four, evaluation records stay sealed.
Common questions
Q: Why is a memo about a conversation an "evaluation"?
A: Because the AG treats work-environment complaints as a form of self-explanation for performance or lack of performance. Op. 2005-271 said the same about exit interviews, and Op. 2002-204 said the same about anonymous internal-survey comments. The reasoning: an employee's view of her work environment is, in the AG's framework, her account of why she does or doesn't perform her job.
Q: My supervisor filed a complaint against my wishes. Doesn't that change the classification?
A: It actually pushes it deeper into evaluation territory. If you, the employee, had filed the complaint yourself, it would be your personnel record. When the supervisor files on your behalf and against your wishes, the document becomes a record created by the employer, which is one of the elements of an evaluation record.
Q: What's the four-part test?
A: From A.C.A. § 25-19-105(c)(1):
1. The employee was suspended or terminated.
2. The suspension or termination is administratively final.
3. The records in question were the basis for the decision.
4. The public has a compelling interest in disclosure.
All four must be met. Missing any one means the record stays sealed in full.
Q: Can the County release just the parts that don't evaluate me?
A: For evaluation records, no. The FOIA flatly prohibits releasing "any portion" of an evaluation record unless the four-part test is met (Op. 2004-012, cited in companion Op. 2025-132). For personnel records, segregation is allowed and even required.
Q: Does this opinion mean my supervisor's memo can never be released?
A: Not "never," but only after the four-part test is satisfied. If you're later suspended or terminated, the action becomes final, the memo formed the basis, and there's a compelling public interest, the memo would be released.
Q: How does this opinion compare to Op. 2025-130 (the custodian's opinion)?
A: Op. 2025-130 was filed by the County Attorney as custodian. It addressed the broader question of whether unsolicited complaints by coworkers under the County's Personnel Policy are personnel records (yes) or evaluations (no). This opinion addresses the narrower scenario where the supervisor (not the employee) creates the record. The two opinions are consistent: who creates the record matters more than where it's filed.
Background and statutory framework
Arkansas FOIA splits employee-related records into two narrow buckets with very different release rules.
Personnel records (A.C.A. § 25-19-105(b)(12)) are records pertaining to an individual employee that were not created by or at the behest of the employer to evaluate the employee. They get released subject to a balancing test from Young v. Rice, 308 Ark. 593 (1992): is the information of a "personal or intimate nature" giving rise to a more-than-de-minimis privacy interest? If yes, does the public interest outweigh that privacy interest? The scale is tipped toward public access.
Employee-evaluation records (A.C.A. § 25-19-105(c)(1)) are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance. The Arkansas Supreme Court adopted this framework in Thomas v. Hall, 2012 Ark. 66. These records stay sealed unless the four-part test is met.
The AG has built a body of opinions defining the edges of "to evaluate the employee," including:
- Op. 2005-271, exit interview detailing work environment is an evaluation
- Op. 2002-204, anonymous internal-survey comments mentioning a specific employee may be evaluations
- Op. 2025-130, supervisor's incident reports and memoranda are exempt as "preliminary notes and other materials"
- Op. 2023-074, employer-initiated complaint forms are evaluations as to the subject and personnel records as to the complainant
This opinion extends those to a supervisor-prepared memo describing the employee's voiced complaints about her work environment, plus a complaint form filed against the employee's wishes.
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), burden on the person resisting disclosure
- 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 for unsolicited complaints)
- Op. 2025-132 (separate requester's view of overlapping records)
- Op. 2026-010 (different subject, mixed-record analysis)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2026-002
January 8, 2026
Ms. Tiffany Taggart
Via email only: [email protected]
Dear Ms. Taggart:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the subject 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 we received from the records custodian, Pulaski County received a FOIA request for complaints filed against Pulaski County employees. The custodian has provided me with redacted and unredacted copies of a discrimination and harassment complaint form and a memorandum referenced in the complaint. The custodian has classified these records as personnel records, and she intends to release them with redactions. You object to the release of these records, and you ask if the custodian's decisions are consistent with the FOIA.
RESPONSE
In my opinion, the custodian's decision to classify these documents as personnel records is inconsistent with the FOIA. Instead, these records are best classified as employee evaluations. As employee-evaluation records, they cannot be disclosed unless the four-part test for release has been met.
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 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.
- 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.
- 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. "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
- 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.
- Application. Here, the documents at issue are best classified as employee evaluations. Your supervisor created a memorandum detailing a conversation between you in which you voiced concerns regarding your work environment. Information detailing an employee's viewpoint on her work environment is an employee evaluation because work environment affects an employee's performance or lack of performance on the job. In essence, an employee's complaint about work environment is her explanation for lack of performance on the job.
Based on that conversation, your supervisor then completed a discrimination and harassment complaint form on your behalf and against your wishes. Additionally, these documents could imply that you were unwilling to comply with Pulaski County's personnel policies. Because the documents were created by your employer to evaluate you and they detail your performance or lack of performance on the job, they qualify as employee-evaluation records.
As employee-evaluation records, they cannot be disclosed unless the four-part test for release is satisfied. If the test is not satisfied, the evaluation records must be withheld in their entirety. I do not have access to all the facts surrounding these documents, so I am unable to determine if they should be withheld in this instance.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General