How should a police department handle FOIA release of complaints and medical info in an officer's file?

Plain-English summary

Rachael Kear, an employee of the Conway Police Department, learned that the department planned to release records from her personnel file in response to a FOIA request, with some redactions. She objected to five of them: two third-party complaints (from August and September 2023), a memo, an "Employee Portfolio," and an email called the "Kear Complaint." She asked the Attorney General whether releasing those was consistent with the Arkansas Freedom of Information Act. Attorney General Tim Griffin found the custodian's plan only partly consistent with the law and gave the custodian several corrections to make.

First, on the complaints: whether a complaint is a personnel record depends on whether it was solicited or unsolicited. An unsolicited citizen complaint is a personnel record, judged under the privacy balancing test; a solicited one, gathered as part of an investigation, may be an evaluation record with a different test. The custodian has to check the facts behind each of the three complaints and classify them before deciding on release. Second, on the "Kear Complaint": if it is a personnel record, the custodian must redact any information about the nature, treatment, or diagnosis of an employee's medical condition before releasing it. Third, on the redactions overall: some of the existing redactions were unexplained, and some exempt information (Social Security numbers and driver's license numbers) still appeared unredacted, including in video recordings. The AG told the custodian to review every record and recording slated for release and make sure those identifiers are blacked out first.

What this means for you

Records custodians

Based on this opinion, complaints in an employee's file are not all the same: the custodian has to determine whether each was solicited or unsolicited, because that changes which test applies. Medical information about an employee must be redacted from a personnel record before release, and the custodian is responsible for scrubbing Social Security numbers and driver's license numbers from every document and video before disclosure, not just the obvious ones.

Public employees and law enforcement officers

For an employee objecting to release of complaints in their file, this opinion shows that an unsolicited complaint is generally treated as a personnel record and can be released under the balancing test, but medical details and personal identifiers must be redacted first. The classification of each complaint turns on how it was generated.

FOIA requesters and journalists

A release of an officer's complaint records may still be proper, but expect medical information and personal identifiers to be redacted, and expect the custodian to treat solicited and unsolicited complaints differently.

Common questions

Q: Why does it matter whether a complaint was "solicited" or "unsolicited"?
A: An unsolicited complaint (one a citizen sends in on their own) is a personnel record, judged under the privacy balancing test. A solicited complaint, gathered by the employer as part of investigating the employee, can qualify as an employee-evaluation record with a different, stricter test. The custodian must check the facts to classify each one.

Q: Does an employee's medical information have to be redacted?
A: Yes. The AG said that if the "Kear Complaint" is a personnel record, the custodian must redact any information about the nature, treatment, or diagnosis of an employee's medical condition before releasing it.

Q: What about Social Security numbers and driver's license numbers in the records?
A: Those must be redacted. The AG noted that some exempt information appeared unredacted and directed the custodian to review all records and even video recordings to make sure Social Security numbers and driver's license numbers are removed before release.

Q: Did the AG approve releasing these records?
A: Only in part. He found the custodian's plan partially consistent with the FOIA and identified specific steps (classifying the complaints, redacting medical details, and scrubbing personal identifiers) the custodian must take before release.

Background and statutory framework

Arkansas's FOIA lets the subject, requester, or custodian of certain employee-related records ask the Attorney General to review a custodian's release decision (A.C.A. § 25-19-105(c)(3)(B)(i)). Records held by a public entity are presumed public (A.C.A. § 25-19-103(15)(A); Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)).

Personnel records (A.C.A. § 25-19-105(b)(12)) are open unless disclosure would be a clearly unwarranted invasion of personal privacy, judged under the balancing test of Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), and Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998). Employee-evaluation or job-performance records (A.C.A. § 25-19-105(c)(1)) are judged under the four-part test recognized in Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, and Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466. The FOIA also requires redaction of specific identifiers such as Social Security numbers (A.C.A. § 25-19-105(b)(13)).

Citations and references

Statutes:
- A.C.A. § 25-19-105(c)(3)(B)(i) (subject/requester/custodian may seek an AG opinion)
- A.C.A. § 25-19-105(c)(1) (employee-evaluation/job-performance records; four-part test)
- A.C.A. § 25-19-105(b)(12) (personnel records; unwarranted-privacy-invasion exemption)
- A.C.A. § 25-19-105(b)(13) (redaction of specific personal identifiers)
- A.C.A. § 25-19-103(15)(A) (definition of public record)

Cases:
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), rebuttable public-record presumption
- 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 approval of the evaluation-record test
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), privacy balancing test
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), personal-privacy standard

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. 2026-052
May 26, 2026
Rachael Kear
Via email only: [email protected]
Dear Ms. Kear:
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 Conway Police Department received a request for certain records from your
personnel file. The custodian has identified the employee-related records responsive to this request
and intends to disclose those records with redactions. It is unclear how the custodian has classified
the records.
You have provided copies of the records for my review.
1 Of the records provided, you object only
to the release of five records: two third-party complaints (dated August 2023 and September 2023),
a memorandum entitled “R kear memo,” a record entitled “Employee Portfolio,” and an email
entitled “Kear Complaint.” Accordingly, this opinion addresses only those records.
You ask whether the custodian’s decision to release these records is consistent with the FOIA.
RESPONSE
The Conway Police Department’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
must review the facts surrounding the three complaints discussed in this opinion, determine
whether they are unsolicited or solicited, and then apply the appropriate test for release. If a
complaint is unsolicited, it constitutes a personnel record and may be released under the applicable
balancing test. In the case of the “Kear Complaint,” if it is determined to be a personnel record,
the custodian must redact any information concerning the nature, treatment, or diagnosis of an
1 The records include only redacted copies. This Office was not provided with unredacted copies.

Rachael Kear
Opinion No. 2026-052
Page 2
employee’s medical condition before releasing the record. Finally, the basis for some of the
redactions is unclear, and additional exempt information appears in the records unredacted. The
custodian must carefully review all records slated for release—whether documents or video
recordings—to ensure that social security numbers and driver’s license numbers are properly
redacted before disclosure.
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.2 Second, the requested document must constitute a public record.3 Third, the document
must not be subject to an exemption.4
The first two elements appear to be met here. The request was made to the Conway Police
Department, which is a public entity subject to the FOIA.5 And the records at issue appear to be
public records.6 Because these records are held by a public entity, they are presumed to be public
records,7
although that presumption is rebuttable.8 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 files9
normally contain two distinct groups of
records: “personnel records” and “employee-evaluation or job-performance records.” The test for
2 Legis. Joint Auditing Comm. v. Woosley, 291 Ark. 89, 91, 722 S.W.2d 581, 582 (1987).
3
Id.
4
Id.
5 See, e.g., A.C.A. § 25-19-103(15)(A) (including “a public official or employee” or “a governmental agency”).
6 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).
7
Id.
8 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)).
9
“Personnel files” are not referenced in the FOIA but typically include 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).

Rachael Kear
Opinion No. 2026-052
Page 3
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.10 A personnel record
is open to public inspection except “to the extent that disclosure would constitute a clearly
unwarranted invasion of personal privacy.”11 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.12 The balancing
test, which takes place “with the scale tipped in favor of public access,” has two steps.13
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.14
If the privacy interest is minimal, then disclosure is required. Second, if the information gives 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.15
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.16 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.17
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,
18 such as personal contact information of
10 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
11 A.C.A. § 25-19-105(b)(12).
12 308 Ark. 593, 826 S.W.2d 252 (1992).
13 Watkins et al., supra note 9, at 208.
14 Young, 308 Ark. at 598, 826 S.W.2d at 255.
15 Id.
16 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
17 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 9, at 207.
18 A.C.A. § 25-19-105(f).

Rachael Kear
Opinion No. 2026-052
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public employees (including personal telephone numbers, email addresses, and home addresses);19
social security numbers;
20 and dates of birth of public employees.21
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.22 This exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct.23
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).24
The primary purpose of this exception is to preserve the confidentiality of the formal jobevaluation process in order to promote honest exchanges between employees and their
employers.25
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
19 See id. § 25-19-105(b)(13).
20 Ark. Att’y Gen. Ops. 2006-035, 2003-153.
21 Ark. Att’y Gen. Op. 2007-064.
22 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, at 7–8, 572 S.W.3d 466, 471 (noting that “[o]ur supreme court has approved” the definition of employeeevaluation 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.
23 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
24 A.C.A. § 25-19-105(c)(1).
25 E.g., Ark. Att’y Gen. Op. 96-168.

Rachael Kear
Opinion No. 2026-052
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personnel record, or (3) more than one person’s personnel record.26 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. Third-party complaints. Unsolicited complaints about public employees that are generated by
third parties unaffiliated with the employer are personnel records.27 They are also mixed records
to the extent they mention other employees. The complaints are not transformed into employeeevaluation or job-performance records by virtue of any subsequent investigation.28
Unsolicited complaints are not employee-evaluation or job-performance records because they do
not meet the first requirement of such records: being created by or at the behest of the employer.29
Thus, to the extent the two citizen complaints were unsolicited and completed solely at the
initiative of the complainants, they are personnel records. And because their release would not
constitute an unwarranted invasion of personal privacy, they are subject to disclosure, even if the
complaints are “unsubstantiated or later determined to be unfounded.”30
6. The “Kear Complaint.” The same is true of unsolicited complaints submitted by employees
or former employees about their coworkers: such complaints are the personnel records of both the
complaining employee and the employee who is the subject of the complaint.
31
Here, the “Kear Complaint” appears to be a complaint you made about certain coworkers. If you
submitted the complaint on your own initiative, it is properly classified as a personnel record. If,
however, you submitted the complaint in response to a request for feedback from your employer—
such as through an exit interview or similar process—then it is best classified as an employeeevaluation or job-performance record and is not subject to release unless the four-part test is
satisfied. Ultimately, the custodian must review the surrounding facts and make this determination.
If the custodian determines that the complaint is unsolicited, and thus a personnel record, then the
inquiry turns to whether its release would constitute a clearly unwarranted invasion of personal
privacy. You note that the record entitled “Kear Complaint” contains medical information. This
Office has consistently opined that records containing information about the nature, treatment, or
diagnosis of an employee’s medical condition must be redacted to prevent an unwarranted invasion
26 See Ark. Att’y Gen. Op. 2020-037.
27 E.g., Ark. Att’y Gen. Ops. 2025-121, 2001-123.
28 Ark. Att’y Gen. Ops. 2025-121, 2012-001, 2001-123, 2000-166, 98-130, 98-001, 96-257.
29 Ark. Att’y Gen. Ops. 2025-121, 2025-003.
30 Ark. Att’y Gen. Ops. 2025-063, 2016-014.
31 Ark. Att’y Gen. Op. 2018-133.

Rachael Kear
Opinion No. 2026-052
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of personal privacy.32 Because medical information in the “Kear Complaint” appears to concern
the nature, treatment, or diagnosis of a medical condition, it must be redacted before disclosure.
7. The “R kear memo.” The record entitled “R kear memo” is best classified as a personnel record
because it pertains to you but does not evaluate you or detail your performance or lack of
performance on the job. Rather, the record reflects that you were instructed to review a policy, that
you did so, and that you will comply with the policy. It does not assess or detail your job
performance. As a personnel record, this memo is subject to disclosure unless its release would
constitute a clearly unwarranted invasion of personal privacy. Because the memo does not contain
anything of a personal or intimate nature that would give rise to a greater than de minimis privacy
interest, the custodian’s decision to release this record is consistent with the FOIA.
8. The “Employee Portfolio.” The document entitled “Employee Portfolio” is best classified as a
personnel record because it relates to you and documents training events you may or may not have
attended, but it does not evaluate your performance or lack of performance on the job. You object
to its release on the basis that the training information reflected in the document is incomplete. But
whether a record is complete or accurate is beyond the scope of my review. Identifying records
responsive to a request is a task uniquely within the custodian’s purview.
33 If you believe additional
records exist that may more fully reflect your training, those concerns should be directed to the
records custodian.
Furthermore, the “Employee Portfolio” does not contain information of a personal or intimate
nature that would give rise to a greater than de minimis privacy interest. Accordingly, the
custodian’s decision to release this record is consistent with the FOIA. I note, however, that some
information has been redacted from this record. Because I do not have access to an unredacted
version, I cannot assess the basis for those redactions. Under A.C.A. § 25-19-105(a)(3)(B), when
responsive records are withheld or redacted, the custodian must identify the applicable exemptions.
9. Redactions. This opinion addresses only those records to which you have objected. In the course
of that review, however, it appears that some records the custodian intends to release may contain
the social security numbers and driver’s license numbers of non-employees. Before disclosure, the
custodian should review all records designated for release—whether in documents or video
recordings—and redact any social security numbers34 and driver’s license numbers.
35
32 A.C.A. § 25-19-105(b)(12); Ark. Att’y Gen. Ops. 2026-014, 2000-232, 99-110, 95-252.
33 Ark. Att’y Gen. Ops. 2016-130, 2016-043, 2011-094, 2006-158.
34 Ark. Att’y Gen. Ops. 2006-035, 2003-153.
35 Ark. Att’y Gen. Op. 2007-025.

Rachael Kear
Opinion No. 2026-052
Page 7
Assistant Attorney General Justin L. Hughes prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General