Can my Arkansas city withhold the entire internal affairs file on a police officer who was not disciplined?

Subject

Whether the City of Lowell may withhold memorandums, reprimands, an internal affairs file and a CFS Report after a FOIA request for an officer's records.

Plain-English summary

The custodian planned to release redacted personnel-file records but withhold the requested memorandums, reprimands and internal affairs file. The AG reviewed only the withheld records. He found the memorandums, reprimands and most of the internal affairs file properly classified as employee-evaluation records. The custodian said the officer had not been suspended or terminated as a result of these records. Because that first condition for releasing evaluation records was absent, the records must be withheld; the AG had no need to decide the remaining conditions, including compelling public interest.

A CFS Report was also in the internal affairs file. The AG understood it to be a record routinely created by employees in the ordinary course of their duties. A routine record does not become an evaluation record merely because it is later used in an investigation or placed in an internal affairs file. To the extent this CFS Report was such a routine record, the AG classified it as a personnel record. It must be disclosed unless doing so would clearly and unwarrantedly invade personal privacy. The AG could not determine such an invasion from the face of the report, so he found withholding it likely inconsistent with FOIA.

What this means for you

Records custodians

The opinion calls for classifying the documents themselves, including a routine record placed in an investigation file. In this case, the lack of suspension or termination required withholding the evaluation records. The CFS Report required the separate personnel-record privacy test, subject to the AG's understanding that it was routinely created during ordinary duties.

Officers and FOIA requesters

The opinion does not treat every item in an internal affairs file alike. It approves withholding the evaluative records reviewed here but finds that the routine CFS Report likely should be released under the personnel-record test. It makes no presumption about compelling public interest in other police-misconduct records.

Common questions

Q: Why were the investigation records withheld?
A: They were evaluation records, and the custodian said the officer had not been suspended or terminated. The first condition for their release was missing.

Q: Why was the CFS Report treated differently?
A: The AG understood it to be routinely created in the course of duty. Such a record does not become an evaluation record just because it is later used in an investigation. As a personnel record, it is subject to a privacy test rather than the four-part evaluation-record test.

Q: Did the AG find a compelling public interest in the evaluation records? A: He did not reach that question. Because the officer had not been suspended or terminated, the first release condition already failed.

Background and statutory framework

Arkansas FOIA distinguishes personnel records from employee-evaluation records. Personnel records are open unless disclosure would constitute a clearly unwarranted invasion of personal privacy. Evaluation records may be released only after suspension or termination, final administrative resolution, use of the records as a basis for that decision, and a compelling public interest. In a mixed record, the custodian applies the appropriate test to each portion. The opinion explains that a routine record retains its classification when later used in an investigation.

Citations and references

• Statutes: A.C.A. § 25-19-105(b)(12), (c)(1).
• Cases: Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2026-032

March 30, 2026

Mr. Sarah Hardin
Via email only: [email protected]

Dear Ms. Hardin:

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 Lowell for a police officer’s records, including “all records reflecting any change in employment status.” Specifically, your request lists nine separate categories of records, including (1) personnel, HR, and employment system records; (2) termination, disciplinary, and pre-termination records; (3) supervisory, command, and event documentation; (4) communication and systems data, including metadata; (5) job abandonment or absence classification; (6) internal affairs and investigative records; (7) state, external, and regulatory reporting records; (8) derivative and secondary records; and (9) records retention, deletion, and absence records.

The custodian has decided to release responsive personnel-file records with redactions under A.C.A. § 25-19-105(b)(12) but withhold employee-evaluation or job-performance records on the grounds that they do not meet the disclosure criteria of A.C.A. § 25-19-105(c)(1).

Because neither you nor the subject of the records objects to the release of his redacted personnel records, this review is limited to the records the custodian has classified as employee-evaluation records. For purposes of this opinion, I have been provided with unredacted copies of the following withheld records:

• investigative records;
• reprimands;
• CFS Report; and
• memorandums.

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Sarah Hardin
Opinion No. 2026-032
Page 2

You ask whether the custodian’s decisions are consistent with the FOIA.

RESPONSE

In my opinion, the custodian’s decision to withhold the records is mostly consistent with the FOIA. The memorandums, reprimands, and most of the records in the internal affairs file must be withheld from release as employee-evaluation or job-performance records. But withholding the CFS Report in the internal affairs file is likely inconsistent with the FOIA. That document is best classified as a personnel record, which is subject to release unless its 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.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 the City of Lowell, which is a public entity subject to the FOIA. And the records at issue appear to be public records. 4 Because these records are held by a public entity, they are presumed to be public records,5 although that presumption is rebuttable.6 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 files7 normally contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” Personnel

1
Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
2
Id.
3
Id.
4
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). 5 Id.
6
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)). 7 “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 Sarah Hardin Opinion No. 2026-032 Page 3

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.8 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.9

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.”10 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.11 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.12 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.13 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.14

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

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). 8 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
9
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 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. 10 A.C.A. § 25-19-105(b)(12).
11
308 Ark. 593, 826 S.W.2d 252 (1992).
12
Watkins et al., supra note 7, at 208.
13
Young, 308 Ark. at 598, 826 S.W.2d at 255.
14
Id.
Sarah Hardin
Opinion No. 2026-032
Page 4

public’s interest.15 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.16

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted.17 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.18

3. Employee-evaluation records. If a document qualifies as an employee-evaluation or job-
   performance record, it 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).19
   

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.20

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.21 When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Investigative records, memorandums, and reprimands. This Office has consistently opined
   that records in an internal affairs file that have been created by or at the behest of the employer as a part of an investigation into a complaint about an employee’s conduct qualify as employee-

15
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
16
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 7, at 207.
17
A.C.A. § 25-19-105(f).
18
A.C.A. § 25-19-105(b)(13).
19
A.C.A. § 25-19-105(c)(1).
20
E.g., Ark. Att’y Gen. Op. 96-168.
21
See Ark. Att’y Gen. Op. 2020-037.
Sarah Hardin
Opinion No. 2026-032
Page 5

evaluation or job-performance records.22 This classification applies not only to the employer’s evaluative documents but also to materials like witness statements and transcripts.23 Thus, the investigative records are best classified as employee-evaluation or job-performance records. Likewise, the custodian has correctly classified the memorandums and reprimands as employee- evaluation or job-performance records because they were created by the employer to evaluate the officer and detail his performance or lack of performance on the job.

The decision to withhold these records turns on whether the four-part test for disclosure of evaluation records has been met. Here, the custodian has stated that the officer was not terminated, demoted, or suspended as a result of anything in the withheld records. Because the first element of the test—suspension or termination—has not been satisfied, the remaining elements need not be considered, and the records must be withheld.

6. CFS Report. The CFS Report, contained in the internal affairs file, appears to be improperly
   classified as an employee-evaluation or job-performance record. It is my understanding that a CFS Report is a routinely created record generated by employees in the ordinary course of their duties. This Office has repeatedly held that such routinely produced records do not fall within the employee-evaluation exemption,24 and they do not later become employee evaluations simply because they are used in an investigation of the employee.25 Thus, to the extent the CFS Report is a routine record created by employees in the course of their duties, it is not transformed into an employee-evaluation or job-performance record by virtue of its inclusion in an internal affairs file. Instead, it is a personnel record and must be disclosed unless disclosure would constitute a clearly unwarranted invasion of personal privacy. Based on the face of the report, I cannot determine that its disclosure would constitute a clearly unwarranted invasion of personal privacy.

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

Sincerely,

TIM GRIFFIN
Attorney General

22
Ark. Att’y Gen. Ops. 2026-026, 2025-111, 2025-063, 2015-057, 2003-257, 98-001.
23
Ark. Att’y Gen. Ops. 2000-175 (interview transcripts), 98-001 (witness statements).
24
Thomas, 2012 Ark. at 10, 399 S.W.3d at 393 (internal citations omitted) (emphasis in original).
25
Id. at 11, 399 S.W.3d at 393 (quoting Ark. Att’y Gen. Op. 2005-032).