Is a student complaint about a faculty member a personnel record (releasable) or an evaluation record (closed) under the Arkansas FOIA?

Subject

Whether a student's complaint about a law-school faculty member is a personnel record or an employee-evaluation record for Arkansas FOIA disclosure.

Plain-English summary

The University of Arkansas at Little Rock received a request for records concerning a faculty member and found a student's narrative complaint. The custodian planned to release it with the student's identifying information redacted. The faculty member argued that it was an employee-evaluation record and should be withheld.

The AG said the classification depends on why and how the student created the email. If the student submitted it independently, rather than at the University's behest, it is a personnel record. For this record, the AG found no clearly unwarranted invasion of the faculty member's privacy from disclosure, so it would be released under the personnel-record test. If the student sent it in response to a school prompt for evaluative feedback, it is an employee-evaluation record. No suspension or termination had occurred on the facts supplied, so that category's four-part release test would fail and the email would be withheld.

The custodian described the complaint as submitted after the semester and outside a required feedback process. The faculty member said students were explicitly told each semester to submit comments and faculty were instructed to encourage them. The AG did not decide which account controlled. He said the custodian could consider the time between a school feedback request and the email, whether the school had a standard course-evaluation form, whether the email resembled that form, and whether a Zoom meeting with the dean was a normal part of solicited feedback. He described those observations as conjectural because he lacked the necessary facts.

The opinion compares a county policy that merely told employees to report discrimination or harassment, which was insufficient by itself to make all complaints employer-solicited, with a detailed employer-created complaint form, which did make a resulting record employer-solicited. It did not decide whether this faculty member's statement about routine student encouragement was too attenuated. The AG also did not rule on the student's FERPA redactions; he said that separate question belonged to the custodian with local counsel.

What this means for you

University records custodians

The opinion leaves the central fact for the custodian to determine: was this particular complaint created in response to a request for evaluative feedback or on the student's own initiative? The suggested factors help investigate that question, but the AG made no factual finding about them. Depending on the answer, the complaint is either releasable under the personnel-record privacy test applied here or withheld under the evaluation-record test.

Faculty members, students and requesters

Neither the custodian's description nor the faculty member's statement resolved classification for the AG. The distinction turns on the University's involvement in the email's creation. The student's identifying information had already been redacted, but the AG did not review the legal sufficiency of that separate redaction.

Common questions

Q: Are unsolicited student complaints public personnel records? A: If this complaint was submitted on the student's own initiative, the AG said it is a personnel record and, on the facts reviewed, subject to release under the privacy balancing test.

Q: What if the school requested feedback on the faculty member? A: A complaint submitted in response to that prompt would be an evaluation record. No suspension or termination had occurred here, so the AG said it would be withheld.

Q: Did the AG decide whether the regular encouragement to submit comments counted as a request? A: No. The AG said he lacked the facts to resolve whether this email responded to a school feedback request.

Background and statutory framework

A.C.A. § 25-19-105(b)(12) permits release of personnel records unless disclosure would clearly and unwarrantedly invade personal privacy. A.C.A. § 25-19-105(c)(1) permits release of evaluation records only if the suspension-or-termination, finality, relevance and compelling-interest conditions are met. The opinion uses the employer's role in creating the particular complaint to choose between those tests.

Citations and references

• Statutes: A.C.A. § 25-19-105(b)(12), (c)(1), (c)(3)(B)(i); 20 U.S.C. § 1232g.
• 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

TIM GRIFFIN
ATTORNEY GENERAL

Opinion No. 2026-042

May 8, 2026

Mr. Charles Lyford
Associate General Counsel
University of Arkansas at Little Rock
2801 South University Avenue
Little Rock, Arkansas 72204

Dear Mr. Lyford:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made on behalf of the records custodian, 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, the University of Arkansas at Little Rock received a FOIA request for “complaints, allegations, reports, or investigations of misconduct or harassment of any kind” involving a particular faculty member. You have identified a record responsive to that request, which you describe as “a narrative submitted by a student voluntarily, outside any mandatory or regular student evaluation process.” The custodian has classified this student complaint as a personnel record that is subject to release under the applicable balancing test. The custodian also notes that the student’s personally identifiable information has been redacted from the record, as required by the Family Educational Rights and Privacy Act (20 U.S.C. § 1232g) (FERPA) and A.C.A. § 25-19-105(c)(3)(B)(i).

The faculty member, however, objects to this classification, asserting that the complaint constitutes an evaluation or job-performance record that does not satisfy the requirements for disclosure of records of that type. Accordingly, you have provided a copy of the original FOIA request, the notice to the faculty member, related correspondence, and both redacted and unredacted copies of the record for my review. You ask whether the custodian’s decision to release the records with the proposed redactions is consistent with the FOIA.

RESPONSE

I am unable to definitively conclude whether the custodian’s decision to release the record is consistent with the FOIA because the proper classification of the record turns on unresolved factual BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Charles Lyford
Associate General Counsel
Opinion No. 2026-042
Page 2

questions. If the student complaint was submitted on the student’s own initiative and not at the behest of the University, the record is a personnel record subject to release under the applicable balancing test. But if the complaint was submitted in response to a request for the student to provide evaluative feedback on the faculty member’s performance, it constitutes an employee-evaluation or job-performance record that must be withheld because the four-part test for disclosure has not been met.

DISCUSSION

1. 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.1

The first two elements appear to be met. The request was made to the University of Arkansas at Little Rock, which is a public entity subject to the FOIA. And the record at issue appears to be a public record.2 Because the record is held by a public entity, it is presumed to be a public record,3 although that presumption is rebuttable.4 Given that I have no information to suggest that the presumption can be rebutted here, I will focus on whether any exemptions prevent the document’s disclosure.

For purposes of the FOIA, employees’ personnel files5 normally contain two distinct groups of records: “personnel records” and “employee-evaluation or job-performance records.” The test for whether these two types of documents may be released differs significantly. Thus, the custodian must first decide whether a record meets the definition of either a “personnel record” or an

1
Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515.
2
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). 3 Id.
4
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)). 5 “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). Charles Lyford Associate General Counsel Opinion No. 2026-042 Page 3

“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. 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.6 A personnel record is open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”7 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.8 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps.9 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.10 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.11

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 interest.12 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.13

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted.14 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.15

6
See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
7
A.C.A. § 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins et al., supra note 5, at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id.
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 5, at 207.
14
A.C.A. § 25-19-105(f).
15
A.C.A. § 25-19-105(b)(13).
Charles Lyford
Associate General Counsel
Opinion No. 2026-042
Page 4

3. Employee-evaluation records. The second relevant exception is for “employee evaluation or
   job performance records,” which 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.16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.17

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).18

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.19

4. Application. This Office has consistently concluded that unsolicited complaints or allegations
   concerning a public employee are personnel records.20 Such unsolicited records are not transformed into employee-evaluation or job-performance records by virtue of a subsequent investigation.21 By contrast, complaints or allegations about a public employee that are generated by or at the behest of the employer are employee-evaluation or job-performance records.22

16
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. 17 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
18
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
19
E.g., Ark. Att’y Gen. Op. 96-168.
20
E.g., Ark. Att’y Gen. Ops. 2016-014, 2015-053, 2012-074, 2010-109, 2001-028, 2000-058.
21
Thomas 2012 Ark. at 11, 399 S.W.3d at 393 (quoting Ark. Att’y Gen. Op. 2005-032).
22
E.g., Ark. Att’y Gen. Ops. 2025-063, 2006-158.
Charles Lyford
Associate General Counsel
Opinion No. 2026-042
Page 5

Thus, the circumstances surrounding the creation of records, as opposed to their later use, are determinative. This can be explained in part by the rationale underlying the exemption: “The exemption for evaluation records reflects the public interest in maintaining an effective public- employee evaluation system as well as the privacy interests of employees. Without such an exemption, supervisory personnel who perform the evaluations may not be candid in assessing employee performance.”23 As my predecessor observed, “It is difficult to conclude that the listed purposes of the exemption are fostered where the record was not initially created in the evaluation process but was only later used for that purpose. For example, disclosure of records not created for the purposes of evaluating an employee would presumably not affect the candor of an evaluator.”24

In determining whether a complaint was submitted “at the behest” of the employer, a critical factor is the degree of the employer’s involvement in its creation.25 The more attenuated the employer’s role, the less likely the record qualifies as an employee-evaluation or job-performance record. For example, this Office has previously opined that a county policy directing employees to notify the Human Resources Department of discrimination or harassment was insufficient, by itself, to render all complaints submitted “at the behest” of the employer.26 By contrast, this Office has concluded that when an employee completes a highly-detailed complaint form created by an employer that poses specific questions and prompts the complainant to provide particular information, the resulting record is created “at the behest” of the employer.27

Here, the central question is whether the student submitted the complaint at the behest of the University. According to the correspondence you provided, the student submitted the complaint “after the semester had ended and outside any student-feedback process required by the Law School.” The correspondence further asserts that the complaint “was not otherwise created by or at the behest of the employer.” But follow-up correspondence from the faculty member who is the subject of the request states, “All students are explicitly told every semester to submit comments, and the faculty are instructed by the Associate Dean and the Dean to tell students to provide comments.”

Whether the student submitted the complaint in response to the school’s regular request for student feedback is a question of fact, and I am not a factfinder when issuing opinions.28 I do not have access to all the information that may bear on this question. Relevant considerations might include, for example, the length of time between the school’s request for feedback and the student’s email 23 Watkins et al., supra note 5, at 223.
24
Ark. Att’y Gen. Ops. 2012-001, 2008-172, 2007-313.
25
Ark. Att’y Gen. Op. 2026-011 (“This inquiry focuses on the employer’s involvement in the creation of the completed record itself…”). 26 Ark. Att’y Gen. Op. 2025-130.
27
Ark. Att’y Gen. Op. 2023-074.
28
See, e.g., Ark. Att’y Gen. Ops. 2025-009, 2024-045, 2016-117, 2009-186.
Charles Lyford
Associate General Counsel
Opinion No. 2026-042
Page 6

to the Dean; whether the law school employs a standardized course-evaluation form; and whether the substance of the complaint mirrors questions typically asked on such a form, suggesting that the email may be a belated response to a feedback request rather than an unsolicited complaint. Additionally, the student’s email requests a Zoom meeting with the Dean to discuss the complaint. Unless meetings are routinely held to discuss feedback solicited by the Law School, that fact may suggest the complaint was submitted on the student’s own initiative, rather than as part of a routine feedback process.

I emphasize, however, that these observations are conjectural. I lack the facts necessary to determine the proper classification of the record. Instead, I have set out the applicable principles to guide the factual review. If the complaint was submitted at the student’s own initiative and not at the behest of the University, it constitutes a personnel record. Because its disclosure would not constitute a clearly unwarranted invasion of personal privacy, the record would be subject to release under the Young v. Rice balancing test.29 But if the student sent the email in response to a prompt to provide feedback on the faculty member’s performance, the record constitutes an employee-evaluation or job-performance record created at the behest of the employer. In that case, the record may be released only if the four-part test for disclosure of evaluation records is satisfied. Based on the records provided, no suspension or termination has occurred; therefore, the first two elements of the test have not been met, and the record would be withheld.

Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

29
As noted above, you have redacted the student’s personally identifiable information to comply with FERPA and A.C.A. § 25-19-105(c)(3)(B)(i). My review under A.C.A. § 25-19-105(c)(3)(B)(i) is limited to determining the applicability of the exemptions for personnel records and employee evaluation records. Because the applicability of this separate exemption falls outside the scope of my review, I have not addressed it here. That determination rests with the records’ custodian with the assistance of local counsel. See, e.g., Ark. Att’y Gen. Ops. 2021-068, 2020-010, 2016-083.