If a Fayetteville police lieutenant recorded my two-hour phone call about a citizen complaint and the city is withholding the audio as an 'employee evaluation,' is that legal under the Arkansas FOIA?
Subject
Whether the Fayetteville Police Department's classification of a recorded telephone call between a citizen and a police lieutenant as an "employee evaluation" record, and the resulting decision to withhold it from disclosure under the Arkansas FOIA, is consistent with the statute.
Plain-English summary
Damon Sanford filed a citizen complaint against a Fayetteville officer. A police lieutenant emailed him to set up a meeting; he then phoned the lieutenant and they talked for over two hours about the complaint and "numerous other matters." When Sanford later requested the audio recording of that call under the Arkansas FOIA, Fayetteville's custodian classified it as an "employee evaluation" and refused to release any of it. Sanford asked the AG to review under A.C.A. § 25-19-105(c)(3)(B)(i), which lets a requester get an opinion on whether a custodian's call was lawful.
The AG could not give a clean yes or no without listening to the recording. But based on what Sanford described, the call almost certainly contains both kinds of content: complaint-investigation material and ordinary conversation about other matters. That makes it a "mixed record." The custodian has to slice the recording into its parts and apply the right test to each part:
Personnel-record portions (the parts not tied to investigating the complaint): These are open unless disclosure would be a "clearly unwarranted invasion of personal privacy." That is the Young v. Rice balancing test, with the scale tipped toward release. Personal contact information (home addresses, personal phone numbers) gets redacted under § 25-19-105(b)(13) but the rest comes out.
Employee-evaluation portions (anything the lieutenant captured for the purpose of investigating Sanford's complaint): These are closed unless all four prongs of the evaluation-record test are met: (1) the officer was suspended or terminated, (2) the proceeding has reached final administrative resolution, (3) the records formed a basis for that decision, and (4) the public has a compelling interest in disclosure.
The opinion turns heavily on why the call was recorded. If FPD records every call the lieutenant takes (a routine practice), then the recording was not "created … to evaluate" anyone, and the recording is a personnel record subject to the privacy-balancing test. If the lieutenant hit record specifically because she was investigating Sanford's complaint, then that part of the call is "preliminary notes and other materials" under § 25-19-105(c)(1), gated by the four-part test. That factual question, the AG noted, has to be answered by the custodian, not the AG.
What this means for you
Citizens filing FOIA requests for police records
Don't accept a flat "this is an employee evaluation, you can't have it" answer when the underlying record is a phone call or interaction you initiated yourself. Push back with the mixed-records analysis: ask the custodian which portions of the call were captured for the purpose of investigating the complaint and which were just ordinary conversation. The custodian has a legal duty under § 25-19-105(f) to redact discrete pieces and release the rest, not to swallow the whole record under one label.
If the custodian still refuses, the route Sanford used (asking the AG for an opinion under § 25-19-105(c)(3)(B)(i)) is fast and free. The AG's opinion is advisory, but custodians take it seriously, and if the custodian still refuses you can sue under the FOIA.
Records custodians (cities, counties, police departments)
Three things the AG opinion makes clear:
- You have to ask why the recording was made before you can classify it. A blanket "this is an employee evaluation" call is wrong if the recording was made as part of routine call-recording policy. Document the answer to "why was this recorded" before you respond.
- Mixed records are common, especially with audio and video. The same recording can hold both evaluation content and personnel content. Apply the right test to each portion. Don't treat the whole file as one type.
- The four-part test for employee-evaluation records is conjunctive. All four elements must be met before you can release. If the officer was never suspended or terminated, the recording stays closed. But "stays closed" only applies to the evaluation portion, not the whole record.
Police internal affairs investigators
If you record interviews or calls as part of an investigation, the recording is "preliminary notes and other materials" under § 25-19-105(c)(1) and stays closed until the four-part test is met. The investigation-evaluation framework that protects the formal review process applies to your audio just like it does to your written notes (Thomas v. Hall, 2012 Ark. 66). Mark the recording with the date, the investigation it relates to, and the officer being evaluated, so a future custodian can do the mixed-records analysis without guessing.
Municipal attorneys advising on FOIA responses
The AG's framework for mixed records is the same one the office has used since Op. 2020-037 and earlier: identify each portion, classify each portion, apply the test for that classification. The novel point in this opinion is the application to a citizen-initiated phone call. The "purpose for which the recording was made" controls the classification, and that is a fact question you may have to develop through your custodian's testimony or department policy documents before you can defend a withholding.
Common questions
Q: I called the police and the call was recorded. Can I get a copy?
If your call is in the police file, it is a public record under the FOIA. Whether you can get the full audio depends on what is on it and why it was recorded. If the call has anything to do with investigating an officer's conduct, that portion may be withheld unless the officer was suspended or terminated. The rest, the ordinary conversation, generally has to be released with personal-privacy redactions.
Q: What is a "mixed record"?
A record that has more than one type of content. The classic version is one record that contains both an employee's personnel material (job title, salary, work assignments) and the employer's evaluation of that employee (formal review notes, investigation transcripts). The custodian has to apply the personnel-record test to one part and the evaluation-record test to the other.
Q: What is the "four-part test" for employee-evaluation records?
To release an evaluation record, all four must be true:
1. The employee was suspended or terminated (not just disciplined some other way),
2. The suspension or termination proceeding has reached final administrative resolution (the appeals are over),
3. The records formed a basis for the suspension or termination decision (not just background),
4. The public has a compelling interest in disclosure (a serious breach of public trust by a high-level employee, for example).
If any one of those fails, the evaluation record stays closed.
Q: What is "clearly unwarranted invasion of personal privacy"?
The standard for withholding a personnel record. The Arkansas Supreme Court applies the Young v. Rice test: first, does the information have a privacy interest greater than minimal? Second, if yes, is that privacy interest outweighed by the public's interest in disclosure? The scale is tipped toward release. The fact that the officer would prefer the records stay private is irrelevant; the test is objective.
Q: Does it matter that the citizen recorded the call too, or initiated it?
Not directly for the FOIA analysis. What matters is whether the police department's recording exists and how the FPD classified it. A separate citizen recording would not be a public record at all because it would not be in the city's possession.
Q: What if the lieutenant recorded the call without telling me?
Arkansas is a one-party-consent state for recording conversations, so the lieutenant's failure to disclose is not by itself an FOIA issue. The recording is still a public record once made. If you have a separate concern about consent, that is a different statute and would not change the FOIA analysis.
Background and statutory framework
The Arkansas FOIA, A.C.A. § 25-19-101 et seq., starts from a presumption that records held by public bodies are open. The custodian rebuts that presumption only by pointing to a specific exemption.
Two exemptions matter for police-employee records:
Personnel records exemption, § 25-19-105(b)(12): "Personnel records" can be withheld only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The test is Young v. Rice's two-step balancing, with the scale tipped toward release. Personal contact information (home addresses, personal phone numbers, personal email) is separately exempt under § 25-19-105(b)(13).
Employee-evaluation exemption, § 25-19-105(c)(1): Employee evaluation or job-performance records, including "preliminary notes and other materials," are open only if all four conditions are met (suspension or termination; finality; relevance; compelling public interest). The Arkansas Supreme Court approved the AG's three-part definition of evaluation records in Thomas v. Hall, 2012 Ark. 66: created by or at the behest of the employer, to evaluate the employee, detailing performance or lack of performance.
The line between the two exemptions is decided by the purpose of the record's creation. A document created as part of the employee's job (a routine call recording, for example) is a personnel record. A document created to evaluate the employee (a written investigation interview, supervisor notes during a misconduct review) is an evaluation record. Davis v. Van Buren School District, 2019 Ark. App. 466, confirms the distinction.
When a single record contains both kinds of content, the AG calls it a "mixed record" (Op. 2020-037, collected). The custodian has to apply each test to the corresponding portion and redact under § 25-19-105(f).
The compelling-public-interest factor under prong four is, per Watkins's Arkansas Freedom of Information Act treatise, weighed by: (1) the nature of the infraction, (2) the existence of a related public controversy, and (3) the employee's rank within the agency. A general interest in public-employee performance does not count.
Citations
- A.C.A. § 25-19-103(15)(A) (definition of public records)
- A.C.A. § 25-19-105(b)(12) (personnel-records exemption)
- A.C.A. § 25-19-105(b)(13) (personal contact-info exemption)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation exemption with four-part test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (requester's right to AG opinion)
- A.C.A. § 25-19-105(f) (redaction of discrete pieces)
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511 (three FOIA-disclosure elements)
- Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (rebuttable presumption of public-record status)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy-balancing test for personnel records)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (custodian bears burden)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation records)
- Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466
- John J. Watkins et al., The Arkansas Freedom of Information Act (6th ed. 2017)
- Prior AG opinions cited: 2025-130, 2024-045, 2023-012, 2020-037, 2016-055, 2015-072, 2015-057, 2008-065, 2005-095, 2005-032, 2003-073, 2001-112, 2001-028, 1999-147, 1996-168, 1995-351, 1994-198, 1994-127, 1993-076, 1993-055
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Opinion No. 2026-039
April 29, 2026
Mr. Damon Charles Sanford
1763 Creek Court
Fayetteville, Arkansas 72701
Dear Mr. Sanford:
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 information you provided, you submitted a FOIA request to the City of Fayetteville
seeking an audio recording of a telephone call you had with a Fayetteville Police Department
lieutenant on April 22, 2026. You state that you had "filed a citizen complaint" against another
Fayetteville police officer, after which the lieutenant emailed you "to schedule a meeting to discuss
[the complaint]." In response to that email, you initiated a telephone call with the lieutenant that
lasted more than two hours. You further report that "the call was not limited to [your] citizen
complaint" and that you and the lieutenant "discussed numerous other matters during the call."
The custodian has classified the audio recording as an employee evaluation and, on that basis,
withheld the recording from disclosure. I have not been provided with a copy of the recording.
You ask whether the custodian's decisions are consistent with the FOIA.
RESPONSE
Without reviewing the recording, I cannot definitively determine whether it constitutes a personnel
record, an employee evaluation, or a mixed record. But based on the information you provided,
the recording is likely a mixed record, and the custodian should apply the applicable tests for
disclosure to each portion of the recording. Further, I cannot determine the lieutenant's reason for
recording the telephone call. If it is the Fayetteville Police Department's policy to record all
telephone calls, then the recording was not created to evaluate the officer who was the subject of
your complaint, and the recording would not be an employee-evaluation record. Instead, it would
be a personnel record subject to release unless its disclosure would constitute a clearly unwarranted
invasion of personal privacy. If, however, the lieutenant recorded the telephone call for the purpose
of investigating your citizen complaint, then that part of the recording cannot be released unless
the four-part test governing the release of evaluation records 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 the City of Fayetteville—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 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).
As for the final prong, the FOIA never defines the key phrase "compelling public interest." But
the leading commentators on the FOIA, referring to this office's opinions, have offered the
following guidelines:
[I]t seems that the following factors should be considered in determining whether
a compelling public interest is present: (1) the nature of the infraction that led to
suspension or termination, with particular concern as to whether violations of the
public trust or gross incompetence are involved; (2) the existence of a public
controversy related to the agency and its employees; and (3) the employee's
position within the agency. In short, a general interest in the performance of public
employees should not be considered compelling because that concern, at least
theoretically, always exists. However, a link between a given public controversy,
an agency associated with the controversy in a specific way, and an employee
within the agency who commits a serious breach of public trust should be sufficient
to satisfy the "compelling public interest" requirement.
These commentators also note that "[t]he status of the employee" or "his or her rank within the
bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest"
exists, which is always a question of fact that must be determined, in the first instance, by the
custodian after he considers all the relevant information. 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.
-
"Preliminary notes and other materials." As part of the employee-evaluation exception,
A.C.A. § 25-19-105(c)(1) also exempts "preliminary notes and other materials" from disclosure
unless the four-part test is met. This Office has opined that the intent of A.C.A. § 25-19-105(c)(1)
is to exempt "not only … the 'end product'—i.e., the evaluation itself—but also other documents
from which the evaluation report was prepared." Thus, supervisor's incident reports,
memoranda, and transcripts of investigations—including witness statements and other reports on
which employee evaluations are based—are exempt unless the four-part test is satisfied. In
contrast, "documents routinely created by employees in the course of their duties do not [fall within
the employee-evaluation exemption]." And these routinely created documents do not later
become employee evaluations simply because they are used in an investigation of the employee. -
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. -
Classification and disclosure. Because I have not reviewed the recording at issue, I cannot
definitively opine on whether it constitutes a personnel record, an employee evaluation, or a mixed
record. Even so, you report that you discussed numerous matters during the call, in addition to
your citizen complaint. This suggests that the recording is a mixed record. As a mixed record, the
custodian should apply the applicable tests for disclosure to each portion of the recording.
The next critical issue is the purpose for which the recording was made. If the lieutenant records
all telephone calls as a routine part of her duties, then the recording would not qualify as
"preliminary notes and other materials" under A.C.A. § 25-19-105(c)(1). Instead, it would
constitute a personnel record relating to the citizen complaint. As a personnel record, it must be
released unless disclosure would constitute a clearly unwarranted invasion of personal privacy.
If, however, the lieutenant recorded the telephone call to investigate a citizen complaint, then the
portion of the recording created for that purpose would constitute "preliminary notes and other
materials" under A.C.A. § 25-19-105(c)(1), and it cannot be released unless the four-part test for
disclosure of an employee-evaluation record has been met. Ultimately, the circumstances under
which the recording was created are questions of fact to be determined by the custodian, as this
Office is not a factfinder when issuing opinions.
Assistant Attorney General Jodie Keener prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General