Can my Arkansas city legally refuse a FOIA request for citizen complaints filed against a police officer who was not disciplined?

Subject

Russ Racop made a FOIA request to the City of Bryant for a police officer's personnel file and any complaints. The custodian released the personnel file (with redactions) but withheld two complaint files in full as employee-evaluation records. Racop asked the AG to review the withholding. AG Griffin concluded the withholding was partially wrong: the internal memorandums are evaluation records (correctly withheld because the officer was not disciplined), but the citizen complaint forms, complainant statements, photographs, and incident reports are personnel records subject to release.

Plain-English summary

This opinion is the mirror image of Opinion 2026-025. There, the AG approved a custodian's decision to release records about a terminated officer. Here, the AG corrects a custodian's blanket withholding of records about an officer who was NOT terminated.

The City of Bryant got a FOIA request for an officer's personnel file plus all complaints made against him, regardless of how those complaints were resolved. The custodian released the responsive personnel file with redactions but withheld two complaint files (files 0303 and 5810) entirely. The custodian's reasoning: the four-part test for release of evaluation records was not met because the officer had not been suspended or terminated as a result of the complaints.

The AG agreed in part. But the AG's key insight is that not everything in a "complaint file" is an evaluation record. Walk through each component:

Citizen complaint forms and attached written statements (likely releasable). These are filled out by members of the public on their own initiative. They are not "created by or at the behest of the employer to evaluate the employee," which is the first prong of the evaluation-record definition. So they are personnel records, not evaluation records. Personnel records are subject to release unless disclosure would constitute a clearly unwarranted invasion of personal privacy under the Young v. Rice balancing test. The AG specifically calls out that the AG's office has consistently held that unsolicited citizen complaints "are not transformed into employee-evaluation or job-performance records by virtue of any subsequent investigation." That is a key holding.

But the analysis depends on the facts. If the citizen complaint forms were SOLICITED by the employer (rather than filled out by the complainant on their own initiative), then they ARE evaluation records, because they were "at the behest of the employer." The custodian must check whether the forms were unsolicited.

Official memorandums (correctly withheld). These are records created by the employer to evaluate the officer. They detail the officer's performance. They qualify as evaluation records. Because the officer was not suspended or terminated, the four-part test fails at the first prong, and the memorandums must be withheld.

Photographs and incident reports (likely releasable). Photographs that appear to be screenshots from a video not created by the employer are personnel records, not evaluation records. Incident reports are personnel records because they are "routinely created by employees in the course of their duties" and do not evaluate the employee. They do not become evaluation records simply because they are later used in an investigation. So both are subject to release, with appropriate mixed-records redactions for any other officers mentioned.

There is also a fact question for the custodian about file 5810. The file contains a second citizen complaint form referring to a prior complaint, and it is unclear whether that prior complaint relates to the same officer or to an unrelated earlier complaint by the complainant. If unrelated, it is likely not responsive to this FOIA request anyway.

What this means for you

If you are a police officer who has been the subject of citizen complaints but not disciplined

Some of the records about you are subject to release under the Arkansas FOIA, even if you were not suspended or terminated. The internal investigation memorandums your department generated can be withheld because the four-part evaluation-records test is not met. But the underlying citizen complaint forms and attached statements, plus photographs and incident reports, are personnel records that are usually subject to release. Your privacy interest in those records is weighed against public interest under the Young v. Rice test, with the scale tipped toward public access.

If you are a records custodian for a police department or municipality

When you get a FOIA request for "complaints" against an officer, do not blanket-classify everything as an evaluation record. Walk through each document type:

1. Citizen complaint form filled out by complainant on their own initiative: personnel record, generally releasable.
2. Citizen complaint form filled out at your department's request as part of an investigation: evaluation record, withhold unless four-part test is met.
3. Internal memorandums or investigation reports your department generated: evaluation records, withhold unless four-part test is met.
4. Incident reports created by officers in the course of their duties: personnel records, generally releasable.
5. Photographs not created by the department: personnel records, generally releasable.

For each personnel record, run the Young v. Rice test. For each evaluation record, run the four-part test. Apply mixed-record redactions for other officers mentioned. Apply mandatory redactions under § 25-19-105(b)(13) (personal contact info) and consider others under § 25-19-105(f).

The AG's holding that unsolicited citizen complaints are NOT transformed into evaluation records by a subsequent investigation is settled doctrine. Do not rely on the existence of an internal investigation as a basis to withhold the underlying citizen complaints.

If you are a FOIA requester wanting complaints against a public employee

Even when the employee has not been suspended or terminated, you can probably get the citizen complaint itself, plus related routine records like incident reports and outside-source photographs. What you cannot get without a discipline outcome is the employer's internal investigation memorandum or its formal evaluation of the officer. If the custodian denies your request in full, ask the AG to opine on consistency with the FOIA under § 25-19-105(c)(3)(B)(i).

If you are a city attorney advising on these requests

Two practical points. First, distinguish carefully between solicited and unsolicited complaint forms. If the form was completed at the department's request as part of an investigation, treat it as an evaluation record. If it was completed by a citizen on their own initiative, treat it as a personnel record. Second, when there are factual ambiguities (such as in file 5810 here, where it was unclear whether a referenced prior complaint involved the same officer or an unrelated earlier matter), document your factual analysis for the record. The AG's office defers to the custodian's factual determinations subject to judicial review.

Background and statutory framework

The framework matches Opinion 2026-025 (and other AR FOIA opinions), with one key difference: the four-part evaluation-records test does not produce releasable records when the level-of-discipline prong is not met. Brief recap:

A document must be released if (1) the request was directed to a public entity (Legis. Joint Auditing Comm. v. Woosley), (2) the document is a public record under § 25-19-103(15)(A) (presumed if held by a public entity, rebuttable per Pulaski Cnty. v. Ark. Democrat-Gazette), and (3) no exemption applies.

Personnel records (§ 25-19-105(b)(12)). Open to public inspection except where disclosure would constitute a clearly unwarranted invasion of personal privacy. Young v. Rice (1992) supplies the two-step balancing test, with the scale tipped in favor of public access. The person resisting disclosure bears the burden under Stilley v. McBride. The subjective objection of the records' subject is irrelevant.

Employee-evaluation or job-performance records (§ 25-19-105(c)(1)). Records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing the employee's performance. Thomas v. Hall (2012); Davis v. Van Buren Sch. Dist. (2019). Released only if all four prongs met: suspension/termination, finality, relevance, compelling public interest.

Mixed records. When records reference more than one employee, the custodian applies the appropriate test for each employee's information.

Categorization of complaint-file components.

The AG distinguished four kinds of records in the Bryant complaint files:

1. Citizen complaint forms (and attached complainant statements). These are personnel records when unsolicited because they were not created by or at the behest of the employer. Subsequent investigation by the employer does not transform them into evaluation records. The AG cites Op. 2025-121, 2012-001, 2001-123, 2000-166, 98-130, 98-001, and 96-257 for this rule. If solicited, they would be evaluation records.

2. Official memorandums. Records created by the employer to evaluate the officer in response to complaints. These qualify as evaluation records and are subject to the four-part test.

3. Photographs. Where the photographs are screenshots from videos not created by the employer, they are personnel records.

4. Incident reports. Routinely created by employees in the course of their duties, do not evaluate those employees. Personnel records, even when later used in an investigation. Op. 2025-130 explains the distinction between evaluation records and "documents routinely created by employees in the course of their duties."

The four-part test outcome here. Because the officer was not suspended or terminated, the level-of-discipline prong fails, so the official memorandums must be withheld.

Mandatory redactions. Personal contact information of public employees under § 25-19-105(b)(13). Other discrete redactions under § 25-19-105(f).

Common questions

Why is an unsolicited citizen complaint not an evaluation record?

Because evaluation records require creation by or at the behest of the employer. A citizen filling out a complaint form on their own initiative is not creating the form at the employer's behest. The AG's office has consistently held this since at least the 1990s, and the rule is unaffected by any subsequent employer investigation.

What if the city's complaint form looks "official" and tracks departmental procedure?

The form's appearance does not control. What matters is who initiated the creation of the document. If the citizen filled out the form on their own initiative, it is a personnel record. If the department asked the citizen to fill out the form as part of an investigation, it is an evaluation record. The custodian must look at the surrounding facts.

Why are incident reports personnel records and not evaluation records?

Because they are routinely created by employees in the course of their duties. They document events; they do not evaluate the employees who created them. Even when an incident report is later used as evidence in an investigation, it does not retroactively become an evaluation record.

Can the city withhold a citizen complaint to protect the complainant's identity?

Generally no, unless the personal-privacy balancing test under Young v. Rice tips against disclosure. The complainant filed the complaint with the public knowing the city is subject to FOIA. Their privacy interest in the complaint, while not zero, generally does not outweigh the public's interest in records about police complaints. The complaint may be releasable, with redactions limited to the categorical exemptions (such as personal contact info) and any discrete privacy concerns.

Why must the official memorandum be withheld here?

Because the officer was not suspended or terminated. The four-part test for release of evaluation records starts with the level-of-discipline prong. If the officer was not disciplined, the analysis stops there: the memorandum stays confidential.

What if the officer had been suspended after the complaint?

Then the four-part test could potentially be met for the memorandum, and it could become releasable, subject to the finality, relevance, and compelling-public-interest prongs.

Are photographs of the officer's conduct releasable?

It depends on origin. If the department created the photographs as part of its investigation, they may be evaluation records. If the photographs originate from outside the department (such as screenshots from a video filmed by a citizen), they are personnel records and likely releasable.

What happens to the second complaint form in file 5810?

The custodian must determine factually whether that complaint relates to the officer who is the subject of the FOIA request or to an unrelated prior matter by the complainant. If unrelated, it is likely not responsive to the FOIA request at all.

Citations

• Arkansas FOIA statutes: A.C.A. § 25-19-103(15)(A) (definition of public records); § 25-19-105(b)(12) (personnel records); § 25-19-105(b)(13) (personal contact info redaction); § 25-19-105(c)(1) (employee-evaluation four-part test); § 25-19-105(c)(3)(B)(i) (AG opinion request authority); § 25-19-105(f) (additional redactions).
• General FOIA cases: Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987); Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).
• Personnel records cases: Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998).
• Evaluation records cases: Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466.
• Prior AG opinions on unsolicited citizen complaints: Op. 2025-121, 2025-003, 2012-001, 2001-123, 2000-166, 98-130, 98-001, 96-257; on routinely created records: Op. 2025-130.

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. 2026-026
March 19, 2026
Mr. Russ Racop
Via email only: [email protected]
Dear Mr. Racop:
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 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 your correspondence, you made a FOIA request to the City of Bryant for a certain law enforcement officer's personnel file and any complaints made about him, without regard to any findings or disciplinary action. The custodian released responsive personnel-file records with redactions under A.C.A. § 25-19-105(b)(12) but withheld the complaint files on the grounds that they do not meet the disclosure criteria of A.C.A. § 25-19-105(c)(1). For purposes of this opinion, I have been provided with unredacted copies of the withheld records, which consist of two formal citizen complaint files involving the officer: files 0303 and 5810. You ask whether the custodian's decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian's decision to withhold the complaint records is partially consistent with the FOIA. The official memorandums must be withheld from release as employee-evaluation or job-performance records. But withholding the citizen complaint forms and attached written statements is likely inconsistent with the FOIA, provided the citizen complaints were unsolicited and not completed at the behest of the employer. Additionally, withholding the photographs and incident reports is not consistent with the FOIA because they are best classified as personnel records, which are subject to release unless their disclosure would constitute a clearly unwarranted invasion of personal privacy.

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

The first two elements appear to be met here. The request was made to the City of Bryant, 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. 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 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. 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 them under the FOIA, the custodian must 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." 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." 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" 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. When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Citizen complaint files. The withheld records consist of two formal citizen complaint files involving the officer. File 0303 includes (1) official memorandums; (2) the Bryant Police Department Citizen Complaint Form; (3) a written statement by the complainant attached to and referenced in the complaint form; (4) photographs; and (5) an incident report and supplements. File 5810 includes (1) an official memorandum; (2) the complainant's written statement; (3) the Bryant Police Department Citizen Complaint Form; (4) a Complaint Affirmation; and (5) a second Citizen Complaint Form referring to a prior complaint.

5.1. Citizen complaint forms and attached written statements. Unsolicited complaints about public employees (including affirmations and attached written statements) generated by third parties unaffiliated with the employer are personnel records. They are also mixed records to the extent they mention other employees. The complaints are not transformed into employee-evaluation or job-performance records by virtue of any subsequent investigation.

Unsolicited complaints are not employee-evaluation or job-performance records because they do not meet the first requirement of such records: being created by or at the behest of the employer. Thus, to the extent the Bryant Police Department Citizen Complaint forms were unsolicited and filled out entirely by the complainant at his or her own initiative, they are personnel records subject to release, along with any applicable redactions referenced in Section Two.

If, however, these forms were solicited by the employer, then they would be best classified as employee-evaluation or job-performance records and would not be subject to release unless the four-part test for release has been satisfied. Ultimately, the custodian must review the surrounding facts and make that determination.

The custodian must also review the second complaint form in file 5810. It is unclear whether the second complaint in file 5810 relates to the officer who is the subject of this request or whether it instead concerns an unrelated prior complaint by the complainant. If unrelated, it is likely not responsive to this FOIA request, but that is ultimately a question for the custodian to determine.

5.2. Official memorandums. Records created as part of an employer's investigation into complaints about an employee's conduct qualify as employee-evaluation records. These memorandums were created by or at the behest of the employer to evaluate the officer named within the complaints. Therefore, they constitute employee-evaluation or job-performance records and are not subject to release unless the four-part test for release is satisfied. My understanding is that the officer was not suspended or terminated. If that is correct, these records should be withheld.

5.3. Photographs and incident reports. The photographs and incident reports are best classified as personnel records because they pertain to an individual employee but were not created by or at the behest of the employer to evaluate the employee. The photographs appear to be screenshots taken from a video not created by or at the behest of the employer. Incident reports are personnel records because they are "routinely created by employees in the course of their duties" and do not evaluate those employees. They are also mixed records to the extent they mention other employees.

Personnel records are subject to release unless "disclosure would constitute a clearly unwarranted invasion of personal privacy." Nothing in the photographs or incident reports rises to that level, so the records are subject to release with any appropriate redactions applied.

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

Sincerely,
TIM GRIFFIN
Attorney General