Can the public get a fired government employee's personnel file and investigation report under the Arkansas FOIA?

Plain-English summary

A Saline County employee, Eric Thacker, was in an accident while operating county machinery and was then fired. The county received a Freedom of Information Act (FOIA) request for records tied to the accident: his personnel file, disciplinary actions, and employment-status records. As the subject of those records, Thacker asked the Attorney General to review whether the custodian's plan to release them (in redacted form) followed the FOIA. This kind of review is authorized by A.C.A. § 25-19-105(c)(3)(B)(i).

Attorney General Tim Griffin concluded the custodian's decision to release the records as redacted is likely consistent with the FOIA. The reasoning splits the file into two categories the FOIA treats very differently:

• Personnel records (most of the file). These are open to the public unless disclosure would be a "clearly unwarranted invasion of personal privacy." The opinion found the custodian appears to have properly redacted the private pieces (Social Security number, personal contact information, employee ID number, health insurance, tax withholdings, and payroll deductions) while releasing the rest.
• Employee-evaluation records (one document). The "Personnel Investigation Report and Finding" was created by the employer to evaluate Thacker and details his job performance, so it is an employee-evaluation record. Those are confidential unless four conditions are met: the employee was suspended or terminated; that action is administratively final; the record formed a basis for it; and there is a compelling public interest in disclosure. The AG found the first, third, and fourth prongs met (the incident involved a confrontation with a member of the public that caused an accident and injury), so if the termination is administratively final, the report must also be released.

What this means for you

Public employees whose records are requested

The opinion lays out what stays private and what comes out. Based on this opinion, an Arkansas public employee's ordinary personnel records are public, but the custodian must redact personal and financial identifiers before releasing them. An internal investigation report about your conduct is normally confidential, but that protection ends once your suspension or termination is administratively final and the public has a compelling interest in seeing it. The opinion also notes that whether the subject personally objects to release is irrelevant, because the privacy test is objective.

Records custodians

The opinion is a step-by-step map: first classify each record as a "personnel record" or an "employee-evaluation or job-performance record," then apply the correct test. For personnel records, run the two-step Young v. Rice balancing test with the scale tipped toward disclosure, and redact the specific categories the AG lists. For an investigation report, apply the four-part evaluation-record test, treating "compelling public interest" as a fact question the custodian decides first.

Journalists and FOIA requesters

The opinion signals that misconduct-investigation records of a fired public employee are generally obtainable once the discipline is final, especially where the underlying incident touched the public. It also confirms the presumption that government records are public and that the party resisting disclosure carries the burden.

Common questions

Q: Are a public employee's personnel records public in Arkansas?
A: Generally yes. The opinion says personnel records are open to inspection except to the extent disclosure would be a "clearly unwarranted invasion of personal privacy," with private identifiers redacted.

Q: What has to be redacted?
A: The opinion lists items like personal contact information, employee personnel/ID numbers, Social Security numbers, health insurance, tax withholdings, and payroll deductions, among other intimate financial details.

Q: Can the public see the internal investigation into an employee's conduct?
A: Only if four things are true: the employee was suspended or fired; that action is administratively final; the record was a basis for it; and there is a compelling public interest. The opinion found those likely satisfied here.

Q: Does it matter that the employee objects to the release?
A: No. The opinion states the test is objective, so the subject's view that release invades their privacy is irrelevant to the analysis.

Q: What makes the public interest "compelling"?
A: The opinion points to the nature and seriousness of the infraction, whether there is a related public controversy, and the employee's position. Here, a confrontation with a member of the public that caused an accident and injury likely created a compelling interest.

Background and statutory framework

The Arkansas FOIA presumes government records are public (A.C.A. § 25-19-103(15)(A)), and a record must be disclosed unless a specific exemption applies (Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511). That presumption is rebuttable (Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)).

For personnel records, A.C.A. § 25-19-105(b)(12) allows withholding only where release would be a "clearly unwarranted invasion of personal privacy," measured by the two-step balancing test of Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), with the burden on the party resisting disclosure (Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)). Employee-evaluation or job-performance records are those created by or at the employer's behest to evaluate the employee and detailing job performance (Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466), and they are released only when the four-part test in A.C.A. § 25-19-105(c)(1) is met.

Citations and references

Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions; personnel and employee-evaluation records; redaction)
- A.C.A. § 25-19-103(15)(A) (definition of public record)

Cases:
- Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511
- Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Davis v. Van Buren Sch. Dist., 2019 Ark. App. 466, 572 S.W.3d 466

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. 2026-054
June 4, 2026
Eric Thacker
c/o Christy Peterson
Saline County
200 North Main Street
Benton, Arkansas 72015
Dear Mr. Thacker:
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.
According to your communications with this Office, you were involved in an accident while
operating machinery for Saline County and were subsequently terminated from employment. The
County has now received a FOIA request for numerous records pertaining to the accident,
including your personnel records, disciplinary actions taken against you, and records relating to
your employment status with Saline County.
The records custodian has provided redacted copies of the records she intends to release. You have
asked that I review the custodian’s decision to determine whether it is consistent with the FOIA.
RESPONSE
Although I do not know how the custodian has classified the responsive records, it is my opinion
that the custodian’s decision to release the records as redacted is likely consistent with the FOIA.
Most of the records at issue are personnel records, and the custodian has correctly determined that
they must be disclosed with certain information redacted. Only one document, the Personnel
Investigation Report and Finding, qualifies as an employee-evaluation record. It is my
understanding that your termination is administratively final. If so, this report must also be released
because the criteria for disclosing employee-evaluation records would be met.

Eric Thacker
Opinion No. 2026-054
Page 2
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 Saline County, which is a public
entity subject to the FOIA. And the records at issue are presumed to be public records,2
although
that presumption is rebuttable.3 Given that I have no information to suggest that the presumption
can be rebutted here, I will focus on whether any exemptions prevent the documents’ disclosure.
For purposes of the FOIA, employees’ personnel files4 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.
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.5 A personnel record
is open to public inspection except “to the extent that disclosure would constitute a clearly
unwarranted invasion of personal privacy.”6 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
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 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)).
4 “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).
5 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
6 A.C.A. § 25-19-105(b)(12).

Eric Thacker
Opinion No. 2026-054
Page 3
accessing the records against the individual’s interest in keeping them private.7 The balancing test,
which takes place “with the scale tipped in favor of public access,” has two steps.8 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.9 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.10
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.11 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.12
Even if a document, when considered as a whole, meets the test for disclosure, it may contain
pieces of information that must be redacted,
13 such as personal contact information of public
employees (including personal phone numbers, email addresses, and home addresses);
14 employee
personnel numbers or identification codes;15 marital status of public employees;16 information
about children and dependents;17 dates of birth of public employees;18 Social Security numbers;19
7 308 Ark. 593, 826 S.W.2d 252 (1992).
8 Watkins et al., supra note 4, at 208.
9 Young, 308 Ark. at 598, 826 S.W.2d at 255.
10 Id.
11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12 E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 4, at 207.
13 A.C.A. § 25-19-105(f).
14 Id. § 25-19-105(b)(13).
15 Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070. Public employee personnel numbers are exempt from
disclosure because “these numbers presumably provide access to computerized data, and records containing ‘personal
identification numbers’ used for computer security functions are specifically exempt from disclosure under the FOIA.”
Ark. Att’y Gen. Op. 2022-032; see also A.C.A. § 25-19-105(b)(11).
16 Ark. Att’y Gen. Op. 2001-080.
17 Ark. Att’y Gen. Ops. 2018-084, 2018-083, 2001-080.
18 Ark. Att’y Gen. Op. 2007-064.
19 Ark. Att’y Gen. Ops. 2006-035, 2003-153.

Eric Thacker
Opinion No. 2026-054
Page 4
driver’s license numbers;20 insurance coverage;21 tax information or withholdings;22 payroll
deductions;23 net pay;24 banking information;25 and other financial “records that would divulge
intimate financial detail.”26
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.27 This exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct.28
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).29
20 Ark. Att’y Gen. Op. 2007-025.
21 Ark. Att’y Gen. Op. 2004-167.
22 Ark. Att’y Gen. Ops. 2005-194, 2003-385.
23 Ark. Att’y Gen. Op. 98-126.
24 Ark. Att’y Gen. Ops. 2018-064, 2018-015, 2002-043, 98-126.
25 Ark. Att’y Gen. Op. 2005-194.
26 Ark. Att’y Gen. Ops. 2005-194, 98-126, 95-242, 95-110, 94-235, 91-093, 87-422.
27 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.
28 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
29 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.

Eric Thacker
Opinion No. 2026-054
Page 5
As for the final prong, the FOIA never defines the key phrase “compelling public interest.” But
the leading commentators on the FOIA 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.30
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,31 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.32 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.33
4. Application. I do not know how the custodian has classified the responsive records. But nearly
all of the records submitted for my review constitute personnel records because they pertain to you
but were not created by or at the behest of the employer to evaluate you. Nothing in the unredacted
portions of these personnel records would constitute a clearly unwarranted invasion of personal
privacy if released. And while I have not been provided with unredacted copies of the records—
and thus cannot definitively assess each redaction made by the custodian—it appears that the
custodian has properly redacted the following information from your personnel records: your
personal contact information;
34 employee personnel number;35 Social Security number;36 health
30 Watkins et al., supra note 4, at 238–39.
31 Id. at 237 (noting that “[a]s a practical matter, such an interest is more likely to be present when a high-level
employee is involved than when the [records] of ‘rank-and-file’ workers are at issue”).
32 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
33 E.g., Ark. Att’y Gen. Op. 96-168.
34 A.C.A. § 25-19-105(b)(13).
35 Ark. Att’y Gen. Ops. 2022-032, 2014-094, 2007-070.
36 Ark. Att’y Gen. Ops. 2006-035, 2003-153.

Eric Thacker
Opinion No. 2026-054
Page 6
insurance coverage;37 tax withholdings;38 and payroll deductions.
39 These redactions are
consistent with the FOIA.
Records created as part of an employer’s investigation into an employee’s conduct qualify as
employee-evaluation records.40 Here, the investigation report was created by your employer to
evaluate you, and it details your performance or lack of performance on the job. Accordingly, it is
best classified as an employee-evaluation record. As such, the report may be released only if all of
the following conditions are met: (1) you were suspended or terminated; (2) the suspension or
termination is administratively final; (3) the record details the grounds for suspension or
termination; and (4) there is a compelling public interest in its disclosure.
The first and third prongs of the test are clearly satisfied: you were terminated, and the report
details the grounds for your termination. It is also my understanding that your termination is
administratively final; if so, the second prong would likewise be met. With respect to the fourth
prong—whether there is a compelling public interest in disclosure—relevant factors include the
nature and seriousness of the infraction, the existence of any public controversy, and your position
within the agency.
41 Although you did not hold a high-ranking position, the incident involved a
confrontation with a member of the public that resulted in an accident and injury. Under these
circumstances, there is likely a compelling public interest in the release of the report. Accordingly,
if your termination is administratively final, then all four prongs of the test have been satisfied,
and the custodian’s decision to release the investigative report is consistent with the FOIA.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
37 Ark. Att’y Gen. Op. 2004-167.
38 Ark. Att’y Gen. Ops. 2005-194, 2003-385.
39 Ark. Att’y Gen. Op. 98-126.
40 Ark. Att’y Gen. Op. 2025-111.
41 Watkins et al., supra note 4, at 238–39.