When an employee files a Discrimination and Harassment Complaint form on a county template, is that an evaluation record (which can be withheld) or a personnel record (which must be released)?

Subject

Whether Pulaski County's proposed release of two discrimination and harassment forms and an official memorandum, with redactions, is consistent with FOIA.

Plain-English summary

Lieutenant Matthew Arivette asked the Attorney General to review a plan to release two county Discrimination and Harassment Complaint forms and an Official Memorandum. The records discuss several employees, so the opinion treats them as mixed records. The Attorney General could not classify them definitively from the documents alone; the county custodian had to determine how the completed records came to be created.

An evaluation record is created by or at the employer's behest to evaluate an employee and details performance. For these forms and the memorandum, the opinion focused on the employer's involvement in creation of the completed records, rather than the mere existence of policies or blank templates. An instruction to an employee to complete the forms or draft the memorandum would, by itself, satisfy the “at the behest” condition. But the opinion did not make such instruction the only possible evidence: use of a highly detailed employer-created template for a particular set of harassment or discrimination complaints may further support an employer-behest finding when direct instruction is unclear. The custodian must decide on the facts.

If the records are evaluations, the opinion says they cannot be released unless the four-part disclosure test is met. The Attorney General understood that the subjects of the complaints had not been suspended or terminated, so on that understanding the evaluation forms should be withheld in full. If the complaints were voluntarily submitted without employer prompting, the records are better treated as personnel records of the filer, the employees complained about, and other employees mentioned. The proposed release under the personnel-record test would then be consistent with FOIA, subject to justified redactions.

The opinion approved redaction of employees' personal contact information and found some medical-information redactions proper under the personnel-record privacy test. It could not determine the basis for some name redactions and left that review to the custodian.

What this means for you

If you classify complaint records for FOIA

Find out who initiated and shaped the completed document. Employer direction to create a specific record is sufficient to show employer behest, but a detailed employer template can also support that conclusion when the direction is unclear. Apply the appropriate disclosure test to each part of a mixed record and verify the factual basis for each redaction.

If you filed a complaint about another employee

A complaint submitted voluntarily without employer prompting is treated in this opinion as a personnel record, even if it concerns multiple employees. A complaint produced at the employer's behest to evaluate another employee may instead be an evaluation record. The document's classification cannot be settled merely by its title or the fact that a county template exists.

If you request these records

This opinion does not order release or withholding of all three documents. The result depends on facts the custodian must determine about their creation. If classified as evaluations, all four statutory release conditions must be met; if classified as personnel records, a different privacy test applies.

Common questions

Q: Must the employer have expressly told the employee to complete the form? A: No. Direct instruction is sufficient, but the opinion says a highly detailed employer-created template may further support an employer-behest finding when instruction is unclear. The custodian must assess the circumstances.

Q: Is merely having a blank complaint template enough to decide classification? A: No. The opinion focuses on the employer's involvement in creating the completed record rather than solely on general policies or the existence of templates.

Q: What if the employee submitted the complaint entirely on their own? A: The opinion says an unprompted voluntary submission is better classified as a personnel record, subject to the applicable privacy test and redactions.

Q: Does a suspension alone permit release of an evaluation record? A: No. The four-part test also requires final administrative resolution, a record forming a basis for the decision, and a compelling public interest.

Q: Were the proposed name redactions approved?
A: The Attorney General said some were unexplained on the materials before him. The custodian must determine whether a privacy basis exists for each one.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) governs personnel records, while § 25-19-105(c)(1) sets the release conditions for evaluation records. The opinion cites Thomas v. Hall and Davis v. Van Buren Sch. Dist. for the evaluation-record definition. Its footnote 24 cites Ark. Att’y Gen. Op. 2025-130 for focusing on how the completed record was created; footnote 25 cites Op. 2023-074 for the significance of a detailed employer-created complaint template. Neither citation replaces the custodian's fact-specific inquiry.

Citations and references

• A.C.A. § 25-19-105(b)(12) and (c)(1), cited in the opinion's classification and disclosure discussion.
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, and Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466, cited in the opinion's definition of evaluation records.
• Ark. Att’y Gen. Ops. 2025-130 and 2023-074, opinion footnotes 24–25.

Source

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

Original opinion text

Opinion No. 2026-011

January 26, 2026

Lieutenant Matthew Arivette
Pulaski County Sheriff’s Office
Via email only: [email protected]

Dear Lieutenant Arivette:

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 I received from the records custodian, Pulaski County received a FOIA request for complaints filed against Pulaski County employees. You report that the custodian intends to release certain records from your personnel file with redactions: two “Discrimination and Harassment Complaint” forms and an “Official Memorandum” which is also a harassment and discrimination complaint. I have been provided redacted and unredacted copies of the records for my review, and you ask whether the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian’s decision to release the records is consistent with the FOIA only if the records are properly classified as personnel records. The custodian must make a fact-specific determination on how these records were created, determine whether the records should be classified as employee-evaluation or job-performance records or as personnel records, and then apply the appropriate test for release.

DISCUSSION

1. General rules. A document must be released in response to a FOIA request if all three of the
   following elements are met. First, the FOIA request must be directed to an entity subject to the

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Lieutenant Matthew Arivette
Opinion No. 2026-011
Page 2

FOIA. 1 Second, the requested document must constitute a public record. 2 Third, the document must not be subject to an exemption. 3

The first two elements appear to be met here. The request was made to Pulaski County, which is a public entity subject to the FOIA. 4 And the records at issue appear to be public records. 5 Because these records are held by a public entity, they are presumed to be public records, 6 although that presumption is rebuttable. 7 I have no information, however, to suggest that the presumption can be rebutted, so I will turn to whether any exemptions prevent the documents’ release.

For purposes of the FOIA, employees’ personnel files 8 normally contain two distinct groups of records: “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. 9 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. 10

The test for whether these two types of documents may be released differs significantly. When reviewing documents to determine whether to release them under the FOIA, the custodian must

1
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
2
Id.
3
Id.
4
See, e.g., A.C.A. § 25-19-103(13)(B), as amended by Act 505 of 2025, § 1 (including “counties” as public entities).
5
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(15)(A). 6 Id.
7
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)). 8 “Personnel files” are not referenced in the FOIA but typically includes the following documents: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health- and life-insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. E.g., Ark. Att’y Gen. Ops. 2016-104, 97-368; John J. Watkins et al., The Arkansas Freedom of Information Act 203–04 (6th ed. 2017). 9 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
10
Thomas v. Hall, 2012 Ark. 66, at 8–9, 399 S.W.3d 387, 392; see also Davis v. Van Buren Sch. 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

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Opinion No. 2026-011
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first decide whether a record meets the definition of either a “personnel record” or an “employee- 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.” 11 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. 12 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 13

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. 14 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. 15

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. 16 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. 17

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. 18 For instance, the FOIA exempts the personal

records developed by the Attorney General’s office); Ark. Att’y Gen. Ops. 2015-057, 2009-067, 2006-038, 2003-073, 95-351, 93-055. 11 A.C.A. § 25-19-105(b)(12).
12
308 Ark. 593, 826 S.W.2d 252 (1992).
13
Watkins et al., supra note 8, at 208.
14
Young, 308 Ark. at 598, 826 S.W.2d at 255.
15
Id.
16
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
17
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 8, at 207.
18
A.C.A. § 25-19-105(f).

Lieutenant Matthew Arivette
Opinion No. 2026-011
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contact information of certain public employees from disclosure, including their personal telephone numbers, personal email addresses, and home addresses. 19

3. Employee-evaluation records. The second relevant exception is for “employee evaluation or
   job performance records.” This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 20

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). 21

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. 22

4. Mixed records. Some employee-related records are “mixed records” because they are (1) more
   than one person’s evaluation, (2) at least one person’s evaluation and at least one person’s personnel record, or (3) more than one person’s personnel record. 23 When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Application. The two “Discrimination and Harassment Complaint” forms and the “Official
   Memorandum” are mixed records because they pertain to multiple employees. The job performance of multiple individuals is discussed in the records. But whether these records are best classified as those employees’ employee-evaluation or job-performance records or as their personnel records depends on whether they were created at the employer’s behest. This inquiry focuses on the employer’s involvement in the creation of the completed record itself, not merely

19
See id. § 25-19-105(b)(13).
20
E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
21
A.C.A. § 25-19-105(c)(1).
22
E.g., Ark. Att’y Gen. Op. 96-168.
23
See Ark. Att’y Gen. Op. 2020-037.

Lieutenant Matthew Arivette
Opinion No. 2026-011
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the employer’s adoption of general policies or the existence of complaint templates. 24 This is a fact-specific determination that the custodian must undertake.

If the employer directed the employee to complete these forms or to draft the memorandum detailing the discrimination and harassment allegations, then the records were created at the behest of the employer and are employee-evaluation or job-performance records. The employer’s direction to create a specific document is sufficient, by itself, to satisfy the “at the behest of” requirement.

The use of a highly detailed template created by the employer for a specific subset of harassment or discrimination complaints may further support the conclusion that a record was created at the employer’s behest, particularly when the employer’s direction to complete the document is otherwise unclear. 25

By contrast, an employee’s voluntary submission of a complaint, without any direction from the employer to create the record, is not an employee-evaluation or job-performance record. In that situation, the record is better classified as a personnel record.

If the custodian determines that the forms are employee-evaluation or job-performance records, then they cannot be released unless the four-part test for disclosure is satisfied. Because my understanding is that the subjects of the complaints have not been suspended or terminated, the forms should be withheld in their entirety if they are classified as employee-evaluation or job- performance records.

If the custodian determines that the employee submitted the complaint without prompting by the employer, then these forms are best classified as the personnel records of the employee filing the complaint, the employees being complained of, and any other employees mentioned in the complaint. In that circumstance, the custodian’s decision to release the records as personnel records would be consistent with the FOIA.

The custodian has redacted names and contact information of employees, as well as some information related to the complaint itself under A.C.A. § 25-19-105(b)(12)–(13). The redaction of employees’ personal contact information is consistent with A.C.A. § 25-19-105(b)(13). And some of the redactions, such as removing information discussing employee medical conditions, are clearly proper under the balancing test for personnel records. 26 But the basis for other redactions, such as the removal of employee names, is not clear. Because I do not have access to

24
See Ark. Att’y Gen. Op. 2025-130.
25
See Ark. Att’y Gen. Op. 2023-074 (opining that a highly detailed complaint form created by the employer “as a means for employees to report alleged instances of discrimination and harassment” and completed at the employer’s behest was an evaluation record). 26 See, e.g., Ark. Att’y Gen. Op. 2025-047.

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Opinion No. 2026-011
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all the facts concerning the complaint records, some privacy interest may exist that is not readily apparent, but the custodian will need to review and make that determination. 27

Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

27
See Ark. Att’y Gen. Op. 2025-132.