Which records in an Arkansas deputy sheriff's personnel file must be withheld from a FOIA request when there's been no final discipline?

Plain-English summary

A deputy at the Pulaski County Sheriff's Office, Major Greg Evans, asked the AG to review his agency's decision to release his personnel file in response to a FOIA request. The custodian planned to release all responsive records with redactions, including evaluations, commendations, a final investigation letter, promotion letters, and a 2007 demotion letter. AG Tim Griffin split the records by category.

Releasable (with redactions): the administrative records, including interoffice memoranda, change-of-address records, salary memos, status-change forms, an information-release authorization, transfer and promotion memoranda, hire and appointment records, the Law Enforcement Code of Ethics, home-storage vehicle memo, basic-training letter, job applications, and certificates of merit or achievement. Also releasable: unsolicited third-party commendation letters (the August 15, 2008 and July 7, 2006 letters appear to fall in this bucket, with the May 17, 2002 letter's classification unclear).

Must be withheld: the employee performance evaluations (five evaluations from 1991 to 2012); the November 18, 2008 final investigation letter, which records the outcome of an internal misconduct investigation; commendation letters created by or at the behest of the employer; the promotion letters; and the December 5, 2007 demotion letter. These are all employee evaluation or job performance records under the Thomas v. Hall test, and there is no final suspension or termination that would satisfy the statutory test for release.

The redaction method is wrong. Under § 25-19-105(f)(3), redactions must be visible enough that a reader can see "the amount and the place" of the redaction. Whiteout or deletion does not meet that standard. Black marker is the standard safe option for paper documents.

What this means for you

If you work in a sheriff's office, police department, or other law-enforcement records custody role

When a FOIA request lands on a personnel file, you do not get to release the whole file just because most of it is releasable. Run each document through the Thomas v. Hall three-part test:

1. Was the record created by or at the behest of the employer?
2. Was it created to evaluate the employee?
3. Does it detail performance or lack of performance on the job?

If all three are yes, the document is an employee evaluation or job performance record and stays sealed until all four release elements (suspension or termination, administrative finality, basis, compelling public interest) are met.

Then, for the items that are personnel records, audit your redactions. Whiteout and "delete" tools fail § 25-19-105(f)(3) because they hide both the place and the amount of the redaction. Use a black box or marker so the requester can see where and how much was removed.

If you are the subject of the records and someone requests them

You can ask the AG to review the custodian's decision under § 25-19-105(c)(3)(B)(i). That review is limited to whether the custodian's call was consistent with FOIA, not whether the release is in your interest. If you think evaluation records were misclassified or are about to be released without the four-part test being met, this is the channel to flag it before the records go out.

If you are a journalist or researcher requesting a deputy's personnel file

Expect the agency to send you the administrative records (training, applications, status changes, certificates) and any unsolicited third-party commendations. Expect them to withhold supervisor-created evaluations, internal-investigation summaries, and supervisor commendations until and unless a final discipline has been imposed. If you think a record was wrongly withheld, you can ask the AG to review.

If you represent a law enforcement employee whose file is requested

The Thomas v. Hall test does most of the work. Under this opinion, an internal-investigation closeout letter that records conclusions about officer conduct is an evaluation record that stays sealed unless the four-part release test is met. Supervisor commendation letters that praise specific on-duty conduct are also evaluation records, while unsolicited third-party commendations are personnel records subject to release.

Common questions

Q: Why are some "commendation" letters releasable and others not?
A: Origin matters. A letter from a private citizen, victim, or another agency saying the deputy did good work is unsolicited, comes from outside the employer, and is a personnel record. A letter from the deputy's own supervisor praising specific conduct is created by or at the employer and is an evaluation record.

Q: Why are evaluations sealed unless there is a suspension or termination?
A: Section 25-19-105(c)(1) requires all four prongs: suspension or termination, administrative finality, the records formed a basis for that decision, and a compelling public interest. The first prong is a hard threshold. No suspension or termination means no release, period.

Q: What about a deputy who was demoted? Is a demotion letter releasable?
A: Not under this analysis. The four prongs are tied to "suspension or termination." A demotion alone is not on the list. The 2007 demotion letter here, created by the employer and recording an adverse action, is treated as an employee evaluation record and withheld.

Q: What if a single document mixes one employee's evaluation with another employee's personnel record?
A: It is a "mixed record." The custodian applies each test to the relevant portion and may need to notify the other employee under § 25-19-105(c)(3)(A).

Q: What information must always be redacted from a personnel record before release?
A: Personal contact information of public employees (personal phone, email, home address) under § 25-19-105(b)(13), social security numbers, dates of birth of public employees, and employee personnel identification numbers used for computer access (§ 25-19-105(b)(11)).

Q: What is wrong with using whiteout to redact?
A: Whiteout hides both the place and the amount of the redaction. The requester cannot tell something was removed. Section 25-19-105(f)(3) requires both to be visible. Black marker or a digital black box achieves that; whiteout and deletion do not.

Background and statutory framework

Arkansas' FOIA presumes that public records are open. A record is releasable unless an exemption applies. For employee records, two exemptions matter.

Personnel records (§ 25-19-105(b)(12)) cover records about an individual employee that were not created to evaluate the employee. They are open except where disclosure would be a clearly unwarranted invasion of personal privacy. The court's balancing test, set in Young v. Rice, has a thumb on the scale favoring disclosure. The two-step analysis asks whether the information triggers more than a minimal privacy interest, and if so, whether that interest outweighs the public's interest.

Employee evaluation or job performance records (§ 25-19-105(c)(1)) are records created by or at the employer's behest to evaluate the employee, detailing performance or lack of performance. These records are sealed unless all four elements are met: the employee was suspended or terminated, the discipline became administratively final, the records formed a basis for that decision, and the public has a compelling interest in disclosure.

The Arkansas Supreme Court's definition in Thomas v. Hall, adopted by the Court of Appeals in Davis v. Van Buren School District, is the framework for sorting documents. Investigation closeout letters that record conclusions about specific officer conduct, supervisor commendations and demotions, and routine performance evaluations all fall into the evaluation bucket. Routine administrative paper (applications, training certificates, change-of-address forms, status-change forms, salary memoranda) falls into the personnel-record bucket.

Section 25-19-105(f)(3) requires redactions to be made so that "the amount and the place" of the redaction are visible. The opinion calls out whiteout and deletion as non-compliant methods.

Citations and references

Statutes:
- Ark. Code Ann. § 25-19-103(15)(A) (public record definition)
- Ark. Code Ann. § 25-19-105(b)(11) (personal identification numbers)
- Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
- Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
- Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records test)
- Ark. Code Ann. § 25-19-105(c)(3)(A) (notification requirement)
- Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (opinion request authority)
- Ark. Code Ann. § 25-19-105(f) and (f)(3) (redaction visibility)

Cases:
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records)
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466 (Court of Appeals adoption of evaluation-record test)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on resister)
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007) (public-record presumption rebuttable)
- Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 722 S.W.2d 581 (1987) (three-part FOIA test)

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. 2026-043
May 14, 2026

Major Greg Evans
Pulaski County Sheriff's Office
2900 South Woodrow Street
Little Rock, Arkansas 72201

Dear Major Evans:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the subject 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.

You report that the Pulaski County Sheriff's Office received a request for certain records from your personnel file. The custodian has identified certain employee records as responsive to this request and intends to disclose those records. It is unclear how the custodian has classified the records.

You have provided copies of the following employee records for my review:

• Administrative records. These include an interoffice memorandum addressed to you regarding an incident outside a courthouse; multiple interoffice memorandums regarding a change of address; multiple memorandums regarding salary increases; multiple Pulaski County Personnel Appointment or Status Change forms; an authorization to release information for employment purposes; multiple interoffice memorandums regarding promotions, transfers, and assignments; multiple records reflecting your appointment as a sheriff's deputy; the Law Enforcement Code of Ethics; a memorandum regarding assignment of a home storage vehicle; a memorandum regarding a lateral transfer; hire letters; records reflecting your appointment as a deputy jailer for Pulaski County; a letter documenting your completion of basic training; multiple job applications; and multiple certificates of merit or achievement.

• Employee Performance Evaluations. These include employee evaluations dated January 9, 2012 (pp. 30–34); June 3, 2002 (pp. 56–59); August 15, 1991 (pp. 75–76); January 23, 1998 (pp. 77–78); and February 10, 1996 (pp. 79–80).

• Final investigation letter. This is a November 18, 2008 letter (p. 36) from the chief deputy concluding an internal investigation and noting that no policy violations were found.

• Letters of Commendation, Promotion and Demotion letters: These include promotion letters dated November 26, 2002 (p. 7); August 12, 2022 (p. 27); and May 3, 2007 (p. 44); a demotion letter dated December 5, 2007 (p. 42–43); and letters of commendation dated August 20, 2008 (p. 37); August 15, 2008 (p. 38–39); July 7, 2006 (p. 47); May 12, 2006 (p. 48); May 20, 2002 (p. 61); May 17, 2002 (p. 62); and December 4, 2001 (p. 63).

You ask whether the custodian's decision to release these records is consistent with the FOIA.

RESPONSE

The Pulaski County Sheriff's Office's custodian of records has determined that the records should be released with certain redactions. This decision is partially consistent with the FOIA. The custodian may properly release the unsolicited letters of commendation and appreciation from third parties and the administrative records, subject to redactions. But the custodian should withhold from release the employee performance evaluations, the final investigation letter, the commendation letters made by or at the behest of the employer, the promotion letters, and the December 7, 2007 demotion letter. These records are properly classified as employee-evaluation or job-performance records, and the test for their release appears not to have been met. If, however, the custodian determines that the test for release has been met for any of these records, then they should be disclosed. Finally, the manner, as opposed to the substance, of the redactions is inconsistent with the FOIA.

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 Pulaski County Sheriff's Office, 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. Given that I have no information to suggest that the presumption can be rebutted here, I will turn to whether any exemptions prevent the documents' 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. 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 "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. 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, such as personal contact information of public employees (including personal telephone numbers, email addresses, and home addresses); social security numbers; and dates of birth of public employees.

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. 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.

Additionally, A.C.A. § 25-19-105(c)(3)(A) requires that any public employee or former employee whose records are sought under the FOIA must be notified of that request. Thus, if an entire record is requested, such that portions pertaining to other employees or former employees cannot be redacted, those employees or former employees will also need to be notified of the FOIA request.

5. Classification of administrative records. In my opinion, the administrative records are best categorized as "personnel records," and the custodian's decision to disclose them is consistent with the FOIA. Public records are "personnel records" when they (1) pertain to an individual employee and (2) were not created by or at the behest of the employer to evaluate the employee. Although these administrative records appear to have been created by the employer, they do not evaluate or detail the employee's performance. So they are best classified as personnel records.

This Office has consistently opined that the following are personnel records subject to disclosure under the FOIA: documents confirming employment; dates of hire; general education background, including schools attended and degrees received; training and certifications; signed acknowledgments of having received policies and procedures; pre-employment background investigations; general change-of-status records that do not contain reasons for the change; employee race and gender; employee names; salaries; payroll records; and general resignation letters. Therefore, the custodian's decision to release these administrative records as "personnel records" is consistent with the FOIA, subject to any necessary redactions.

Some of these administrative records are also mixed records, as they pertain to multiple employees. If the portions pertaining to other employees or former employees cannot be redacted, those employees or former employees will also need to be notified of the FOIA request, and the custodian must apply the appropriate test for disclosure to each portion.

6. Classification of the final investigation letter. The November 18, 2008 final investigation letter relates to an internal investigation and summarizes the outcome of that process. Records that memorialize or summarize the results of an investigation may constitute employee-evaluation records, even when prepared at the conclusion of the investigative process. Unlike purely administrative final investigation letters, this letter reflects conclusions drawn from an internal investigation into officer conduct in connection with a specific incident. For these reasons, the letter is best classified as an employee-evaluation or job-performance record. As such, the letter cannot be released unless all of the following elements have been met: suspension or termination; administrative finality; relevance; and compelling public interest. Because there is no indication that any of the elements have been met, the letter must be withheld.

7. Classification of employee performance evaluation records. Because the employee performance evaluations were generated by or at the behest of your employer and detail your performance or lack of performance on the job, they are best classified as employee-evaluation or job-performance records. As explained in Section 3, employee-evaluation or job-performance records cannot be released unless all the required elements are met. Nothing in the employee performance records themselves, nor in the other records provided, suggests that you were suspended or terminated. If that is the case, then the test for release has not been met, and all of the employee performance evaluations must be withheld.

8. Classification of commendation, promotion, and demotion letters. This Office has consistently opined that employee-evaluation and job-performance records include written commendations and letters related to promotions or demotions when they are created by or at the behest of the employer. Such records may be released only if all four statutory elements for disclosure are satisfied. Because there is no indication that you have been suspended or terminated, the threshold requirement for release has not been met, and the records should be withheld.

By contrast, commendation letters from the public praising a public employee are not employee-evaluation or job-performance records because they are not created by or at the behest of the employer. Instead, this Office has concluded that unsolicited commendation letters written by third parties, someone other than the employer, are personnel records subject to release, provided their release would not constitute an unwarranted invasion of personal privacy.

The letters dated August 20, 2008; May 12, 2006; May 20, 2002; and December 4, 2001 appear to have been created by or at the behest of the employer, in which case they should be classified as employee-evaluation or job-performance records. The letters dated August 15, 2008 and July 7, 2006 appear to be unsolicited third-party commendation letters. Accordingly, they should be classified as personnel records. The classification of the May 17, 2002 letter is unclear based on the information you have provided.

Ultimately, the custodian must review each commendation letter, determine its proper classification, and apply the appropriate test for release. As with the records discussed above, some of these letters are mixed records. If the portions pertaining to other employees or former employees cannot be redacted, those employees or former employees will also need to be notified of the FOIA request.

9. Redactions. Under A.C.A. § 25-19-105(f)(3), redactions must be made in such a way that one can see both the "amount" and the "place" of the redaction. The surest way to comply with these requirements when redacting from paper documents is to use a black marker, not whiteout or deletion. Here, the redactions appear to have been made with whiteout or by deleting the content from the records. Both of those methods of redaction are inconsistent with the FOIA. The custodian must redact the releasable records in such a way that one can see both the "amount" and the "place" of the redaction.

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

Sincerely,

TIM GRIFFIN
Attorney General