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 the Pulaski County custodian's decision to release two Discrimination and Harassment Complaint forms and an Official Memorandum (also a harassment/discrimination complaint) from Lt. Arivette's personnel file, with proposed redactions, is consistent with FOIA.
Plain-English summary
Lt. Matthew Arivette used the FOIA subject-side opinion procedure on a release of two Discrimination and Harassment Complaint forms and an Official Memorandum. The records pertain to multiple employees and are mixed records.
The classification depends on a single factual question: were these forms created "at the behest of the employer" to evaluate someone? The Thomas v. Hall test for an evaluation record requires (a) creation by or at the employer's behest, (b) to evaluate, (c) detailing job performance. The "at the behest" prong is fact-specific.
The AG could not make this determination from the records alone. The custodian must answer two related questions:
First, did the employer direct the employee to complete the form? If the employer told the employee to fill out the specific complaint form (or to draft the memorandum) and submit it, that satisfies "at the behest." Op. 2025-130 explains that "at the behest" focuses on the employer's involvement in the creation of the completed record itself, not just adoption of policies or existence of templates.
Second, what role does the template play? Use of a detailed employer-created complaint template (especially one created "as a means for employees to report alleged instances of discrimination and harassment") can support the "at the behest" finding when the direct employer instruction is otherwise unclear (Op. 2023-074). But a template alone, without employer direction, is not enough.
If "at the behest" is met: the forms are evaluation records. Subject to the four-part test. Since the AG's understanding is that the subjects of the complaints have not been suspended or terminated, the four-part test fails (no suspension or termination, no finality). The forms must be withheld in their entirety.
If "at the behest" is not met (employee voluntarily submitted without prompting): the forms are personnel records. They are records of the complaining employee, the complained-of employees, and any other employees mentioned. Subject to the Young v. Rice balancing test. The custodian's release decision (with redactions) would be consistent with FOIA.
The custodian's specific redactions: personal contact information of employees (consistent with § 25-19-105(b)(13)), medical conditions (consistent with the balancing test for personnel records), and some employee names (basis unclear). The custodian must articulate the basis for each name redaction.
What this means for you
If you are a custodian sorting harassment-complaint records
Build a workflow that captures the "at the behest" question at the time the form is created. Note in the file whether the employee was directed to complete the form or submitted it voluntarily. This makes the FOIA classification at release time straightforward. Without that contemporaneous documentation, the analysis becomes a guess.
If the employer directs employees to use a specific template after a complaint has been triggered, that points strongly toward evaluation-record classification. If the employer just publishes the form on an HR portal and waits for voluntary submissions, that points toward personnel-record classification.
If you are an employee filing a harassment or discrimination complaint
Your form is more likely to be confidential (and protected under the four-part test) if the employer directed you to complete it as part of a formal investigation. It is more likely to be releasable as a personnel record if you submitted voluntarily without specific employer instruction. This may or may not change how you choose to file, but it is worth knowing.
If you are a complained-of employee
Whether the complaint form gets released depends on (a) whether you were suspended or terminated as a result (element 1 of the four-part test) and (b) whether the form was created "at the behest" (which determines the test). If you were not suspended or terminated and the form was at the employer's behest, the form stays confidential. If you were not suspended or terminated but the form was a voluntary employee complaint, the form gets released as a personnel record.
If you are a journalist requesting harassment-complaint records
Two key facts to ask the custodian to articulate: (1) was the form created at the employer's behest? (2) Did the complaint result in suspension or termination of the alleged offender? Together these determine whether the four-part test applies and whether it is satisfied.
Common questions
Q: What's "at the behest of the employer"?
A: The employer's direction to the employee to create the specific record. Adopting general policies or making templates available is not enough; the employer must have told the employee to complete that form (Op. 2025-130).
Q: If the form is voluntarily submitted, why is it a personnel record rather than something outside FOIA entirely?
A: Because it is held by a public entity and pertains to an employee. The "voluntary" aspect just means it does not count as employer-directed evaluation. It is still a record about an employee in the public entity's custody and falls within the personnel-record category.
Q: What does the four-part test require here?
A: (1) The subject of the complaint was suspended or terminated; (2) administrative finality; (3) the form formed a basis for the discipline; (4) compelling public interest. If the subject was not suspended or terminated, element 1 fails and the form stays confidential as an evaluation record.
Q: Why are personnel records easier to release than evaluation records?
A: Personnel records use the Young v. Rice balancing test, which has a thumb on the scale toward disclosure and only protects records that would be a clearly unwarranted invasion of personal privacy. Evaluation records use the four-part test, which requires meeting all four elements (a high bar). The legislature designed evaluation records to be more protected because honest internal evaluation depends on confidentiality.
Background and statutory framework
Thomas v. Hall (2012) and Davis v. Van Buren School District (2019) define evaluation records: created (a) by or at the employer's behest, (b) to evaluate, (c) detailing job performance. Op. 2025-130 explains the "at the behest" inquiry focuses on the employer's involvement in creation of the completed record. Op. 2023-074 addresses templates: a detailed employer-created form designed for employees to report misconduct, completed at the employer's behest, is an evaluation record.
Personnel records: A.C.A. § 25-19-105(b)(12), Young v. Rice balancing test. Evaluation records: A.C.A. § 25-19-105(c)(1), four-part test. Statutory redactions for personnel records under (b)(13) (personal contact info).
Citations and references
Statutes: A.C.A. § 25-19-105.
Cases: Thomas v. Hall; Davis v. Van Buren School District; Young v. Rice; Pulaski County v. Arkansas Democrat-Gazette; Stilley v. McBride.
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
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).
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
[General-rules and personnel-vs-evaluation framework discussion. Personnel records governed by Young v. Rice balancing test under § 25-19-105(b)(12). Evaluation records governed by the four-part test under § 25-19-105(c)(1). Mixed-records analysis when records pertain to multiple employees.]
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 the employer's adoption of general policies or the existence of complaint templates. 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.
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. But the basis for other redactions, such as the removal of employee names, is not clear. Because I do not have access to 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.
Assistant Attorney General Justin Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General