Is a student complaint about a faculty member a personnel record (releasable) or an evaluation record (closed) under the Arkansas FOIA?
Plain-English summary
The University of Arkansas at Little Rock received a FOIA request for "complaints, allegations, reports, or investigations of misconduct or harassment" involving a particular faculty member. The custodian found one responsive document: a narrative submitted by a student. The custodian classified it as a personnel record (releasable, subject to the balancing test) with FERPA-required redactions. The faculty member objected, arguing it was an evaluation record (closed, unless a strict four-part test is met).
Attorney General Tim Griffin could not give a clean yes/no. The classification turns on a fact that the AG cannot determine from the record: did the student submit the complaint at the school's behest (in response to a feedback request) or on their own initiative? If on the student's own initiative, the document is a personnel record and the custodian's decision to release with redactions is consistent with the FOIA. If submitted in response to a school request for feedback on the faculty member, the document is an evaluation record. Because no suspension or termination has occurred, the four-part disclosure test cannot be met, and the document must be withheld.
The opinion sets out the legal framework cleanly and identifies the factual signals the custodian should weigh: timing between any feedback request and the student's submission, whether the law school uses a standard feedback form, whether the substance of the complaint mirrors that form, and whether the requested Zoom meeting was a typical part of the feedback process.
What this means for you
If you are a public-college records custodian
Per this opinion, when a faculty-related complaint comes in, the most important question is who triggered the writing. If the faculty's school has a standard student feedback request, and the complaint reads like a response to that request, treat it as an evaluation record (§ 25-19-105(c)(1)). If the complaint shows up outside any solicitation channel, it is a personnel record (§ 25-19-105(b)(12)), generally releasable subject to the Young v. Rice balancing test and FERPA redactions.
Look at: timing between feedback solicitation and the complaint, similarity to the standard feedback form, the channel used (student feedback portal vs. direct email to the dean), and whether the student requested an out-of-process meeting like a Zoom with the dean.
If you are a faculty member who is the subject of a complaint
Under this opinion, a complaint qualifies as an evaluation record only when the school created or solicited it to evaluate you. The opinion treats a general statement that students are encouraged to give feedback as too attenuated, while a detailed, school-created feedback form that prompts specific information is enough to make the resulting record one created "at the behest" of the employer.
If you are a student who submitted a complaint
The opinion holds that a complaint submitted on your own initiative, outside any school feedback process, is a personnel record that may be released under FOIA with personally identifiable information redacted under FERPA. A complaint submitted in response to the school's request for feedback is an evaluation record, which stays closed unless the four-part test is met.
If you are a journalist or researcher requesting these records
Your motive does not matter. The custodian's analysis turns on the record's character, not on who you are. If the complaint was unsolicited, expect a release with personally identifiable information redacted. If solicited, expect a denial unless suspension or termination follows.
If you are a higher-education attorney
The "at the behest" line draws from Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, and Davis v. Van Buren School District, 2019 Ark. App. 466, 572 S.W.3d 466, plus the AG's prior opinions analyzing employer-driven complaint forms (Op. 2023-074) and contrasting them with general policy statements directing employees to report (Op. 2025-130). The opinion makes clear that "at the behest" is not a label, it is a degree-of-employer-involvement test.
Common questions
Q: What's the difference between a personnel record and an evaluation record?
A: Personnel records pertain to individual employees but were not created by or at the employer's behest to evaluate them. Evaluation records were created by or at the employer's behest specifically to evaluate the employee. The classification controls which test governs disclosure.
Q: Why is the four-part evaluation-records test so hard to meet?
A: Because the General Assembly wanted to protect candor in employer evaluations. Releasing evaluations without those protections would chill honest assessments. The four parts are: (1) suspension or termination, (2) final administrative resolution of that proceeding, (3) the records formed a basis for the suspension or termination decision, and (4) compelling public interest. Without a suspension or termination, the test fails at step one.
Q: Does FERPA apply here?
A: Yes. FERPA (20 U.S.C. § 1232g) protects student personally identifiable information in education records. The custodian had already redacted the student's identifying information for that reason, separately from the FOIA analysis. The FERPA redaction was outside the AG's review under § 25-19-105(c)(3)(B)(i).
Q: What if the student complaint was made in writing for one purpose and later used by the school for another?
A: Per Thomas v. Hall and prior AG opinions, the classification turns on the circumstances of creation, not later use. An unsolicited complaint does not become an evaluation record just because the school later treats it as feedback.
Q: How specific does an employer's solicitation need to be to push the record into evaluation territory?
A: The opinion discusses degree of involvement. A general HR policy telling employees to report harassment is not enough on its own (Op. 2025-130). A detailed complaint form with specific prompts that elicit particular information is enough (Op. 2023-074). For the student-feedback context here, the opinion treats whether the school uses a standardized course-evaluation form, and whether the complaint mirrors it, as relevant facts the custodian must weigh, but does not resolve them.
Background and statutory framework
The Arkansas FOIA's two main exemptions for employee-related records sit in § 25-19-105(b)(12) (personnel records, balancing-test disclosure) and § 25-19-105(c)(1) (evaluation records, four-part-test withholding by default). The classification puzzle arises whenever a record is generated outside a formal evaluation process but ends up in an employee's file.
Arkansas case law and AG opinions converged on the "at the behest" test. The Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, approved the AG's framework: evaluation records are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing the employee's performance or lack of performance. The Arkansas Court of Appeals in Davis v. Van Buren School District, 2019 Ark. App. 466, ratified the test and the AG's role in developing it.
What "at the behest" means depends on facts. AG opinions chart the spectrum: a county anti-discrimination policy that simply directs employees to report harassment is too thin to render every report evaluation-driven (Op. 2025-130); a detailed complaint form with specific evaluative prompts is enough to render a complaint evaluation-driven (Op. 2023-074). Faculty evaluation by students is closer to the second category when the school operates a structured feedback channel and the complaint slots into that channel.
The opinion's key methodological move is its acknowledgment that the AG is not a fact-finder. Section 25-19-105(c)(3)(B)(i) calls on the AG to opine on consistency with the FOIA, but where the answer turns on disputed facts, the AG identifies the legal framework and lists the considerations the custodian must weigh, with the final factual determination resting with the custodian and local counsel.
Citations and references
Statutes:
- Ark. Code Ann. § 25-19-103(15)(A) (definition of public records)
- Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
- Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees)
- Ark. Code Ann. § 25-19-105(c)(1) (evaluation records, four-part test)
- Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure for personnel/evaluation records)
- Ark. Code Ann. § 25-19-105(f) (item-level redaction within otherwise releasable records)
- 20 U.S.C. § 1232g (FERPA)
Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, at 8, 402 S.W.3d 511, 515 (three-part disclosure test under FOIA)
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) (rebuttable presumption of public-record status)
- Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992) (personnel-records balancing test)
- Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (burden on party resisting disclosure)
- Thomas v. Hall, 2012 Ark. 66, at 8-9, 399 S.W.3d 387, 392 (definition of evaluation records, "at the behest" test)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 7-8, 572 S.W.3d 466, 471 (approving AG's framework)
Selected prior AG opinions:
- Op. 2025-130 (county harassment-reporting policy not enough to render reports "at the behest")
- Op. 2023-074 (detailed employer complaint form renders complaint "at the behest")
- Op. 2026-011 (focus on employer's role in creation of completed record)
Source
Original opinion text
BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
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 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
- 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 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. Because the record is held by a public entity, it is presumed to be a public record, although that presumption is rebuttable. 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 files 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 "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.
- 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. 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 de minimis privacy interest. 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.
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. 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 pieces of information that must be redacted. 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.
- 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. 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:
- The employee was suspended or terminated (i.e., level of discipline);
- There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
- The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., relevance); and
- 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.
- Application. This Office has consistently concluded that unsolicited complaints or allegations concerning a public employee are personnel records. Such unsolicited records are not transformed into employee-evaluation or job-performance records by virtue of a subsequent investigation. 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.
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." 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."
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. 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. 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.
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. 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 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. 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