Are a public university employee's work text messages and emails public under the Arkansas FOIA?

Plain-English summary

Arkansas State University received a FOIA request for three years of prior FOIA requests and the records produced in response. Among those records were 11 pages from an employee's personnel file: nine pages of text messages and two pages of emails discussing them. Through her attorney, the employee objected, arguing the pages were either employee-evaluation records or personnel records too private to release. She also said she had not received notice of the earlier request that first produced these pages.

Attorney General Tim Griffin concluded the text messages and emails are personnel records, not evaluation records, because ASU did not create them to evaluate the employee. Applying the FOIA's balancing test, the opinion found nothing in them private or intimate enough to be a "clearly unwarranted invasion of personal privacy." The text messages were vague enough that even the precise subject was unclear. With the "thumb on the scale favoring disclosure," the employee's privacy interest did not outweigh the public's interest, so the custodian's decision to release them is consistent with the FOIA. Because the records also mention other employees, they are "mixed records" that require individualized assessment and, where appropriate, notice to those other employees. The separate complaint about lack of notice on a prior request fell outside the scope of the AG's review.

What this means for you

Public employees

The opinion is a reminder that work-related messages in a personnel file are generally public. Based on this opinion, an Arkansas public employee's text messages and emails that were not created to evaluate them are personnel records, and they can be released unless the content is genuinely private or intimate. An employee's own objection does not control, because the privacy test is objective, and mere workplace disagreement reflected in the messages is not enough to withhold them.

Records custodians

The opinion confirms the classification path: messages not created to evaluate an employee are personnel records subject to the Young v. Rice balancing test, not the stricter evaluation-record test. It also flags the "mixed records" wrinkle: when records reference other employees, the custodian must assess each affected person's interest and, where appropriate, give them notice.

University administrators and public bodies

The opinion treats a public university as a FOIA entity whose employee communications are presumptively public. It also confirms that whether an employee received notice of a prior FOIA request is a separate question the AG will not resolve in this kind of review.

Common questions

Q: Are a public employee's text messages public in Arkansas?
A: If they are personnel records (not created to evaluate the employee) and contain nothing that would be a clearly unwarranted invasion of privacy, the opinion says they are releasable.

Q: Can an employee block release just by objecting?
A: No. The opinion states the privacy test is objective, so the subject's own view that release invades their privacy is irrelevant.

Q: What are "mixed records"?
A: Records that involve more than one person's personnel or evaluation records. The opinion says the custodian must assess them individually and, where appropriate, notify the other affected employees.

Q: Did the AG address the employee's complaint about lack of notice?
A: No. The opinion says whether the custodian properly gave notice on a prior FOIA request is outside the scope of this review.

Background and statutory framework

The Arkansas FOIA presumes government records are public (A.C.A. § 25-19-103(15)(A)) and requires disclosure unless an exemption applies (Harrill & Sutter, PLLC v. Farrar, 2012 Ark. 180, 402 S.W.3d 511; the presumption is rebuttable, Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)). Personnel records are open except where disclosure would be a "clearly unwarranted invasion of personal privacy" (A.C.A. § 25-19-105(b)(12)), judged 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 (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 get the stricter four-part release test in A.C.A. § 25-19-105(c)(1). Because the messages here were not created to evaluate the employee, the opinion analyzed them as personnel records and found the balance favored disclosure.

Citations and references

Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions; personnel and evaluation records)
- 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. 2026-056
June 5, 2026
Erin Cassinelli
Lassiter & Cassinelli
1218 West Sixth Street
Little Rock, Arkansas 72201
Dear Ms. Cassinelli:
You have requested an opinion from this Office regarding the Arkansas Freedom of Information
Act (FOIA). Your request, which is made as the attorney for 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 correspondence you provided, Arkansas State University (ASU) received a FOIA
request seeking three years’ worth of prior FOIA requests and the records produced in response to
those requests. In May 2025 and April 2026, records from your client’s personnel file were
released with redactions in response to separate FOIA requests. The ASU records custodian now
intends to produce those same records in response to the current request. Of the records slated for
release, your client objects only to the release of 11 pages from her personnel file—specifically,
nine pages of text messages and two pages of emails discussing those messages.
You contend that the records should be withheld because they are either employee-evaluation
records unrelated to any suspension or termination or personnel records whose disclosure would
constitute a clearly unwarranted invasion of personal privacy. You further state that your client
received actual notice of only one of the two previous FOIA requests. She did not receive actual
notice of the May 2025 FOIA request, in response to which these records were produced, and you
explain that this lack of notice is why she did not object to their release at that time.
You have provided copies of the records at issue for my review so that I may determine whether
the custodian’s decision to release them is consistent with the FOIA.
RESPONSE
In my opinion, the emails and text messages are properly classified as the personnel records of
your client and the other employees referenced in the records, and the custodian’s decision to

Erin Cassinelli
Opinion No. 2026-056
Page 2
release them is consistent with the FOIA. To the extent you question whether the custodian
properly provided notice to your client regarding a prior FOIA request for her records, that issue
falls outside the scope of my review under A.C.A. § 25-19-105(c)(3)(B).
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 ASU, 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
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).

Erin Cassinelli
Opinion No. 2026-056
Page 3
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.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 For instance, the FOIA exempts the personal contact
information of certain public employees from disclosure, including their personal phone numbers,
personal email addresses, and home addresses.
14
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
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).

Erin Cassinelli
Opinion No. 2026-056
Page 4
job.15 This exception includes records generated while investigating allegations of employee
misconduct that detail incidents that gave rise to an allegation of misconduct.16
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).17
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.18
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.19 When a portion of a record is
mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.
5. Application. The text messages appear to consist of communications between your client and
another employee. Although they relate to both individuals, they were not created by or at the
behest of ASU to evaluate either employee. Accordingly, they qualify as “personnel records” under
the FOIA. While the emails appear to have been written by ASU employees, they were not created
for the purpose of evaluating your client either. Rather, they discuss the text messages and address
potential next steps. Therefore, they are properly classified as the personnel records of your client
and the other employees to whom they relate.
15 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.
16 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
17 A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
18 E.g., Ark. Att’y Gen. Op. 96-168.
19 See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).

Erin Cassinelli
Opinion No. 2026-056
Page 5
A personnel record must be disclosed unless the employee’s privacy interest in the record
outweighs the public’s interest in disclosure. Applying that balancing test here, the balance weighs
in favor of release. Although the records suggest that your client may have experienced a
disagreement or conflict with another employee or faculty member, they do not contain
information that is of such a private or intimate nature that disclosure would constitute a clearly
unwarranted invasion of personal privacy. In fact, the text messages are vague enough that the
precise subject of the discussion is unclear. Thus, applying the balancing test, your client’s privacy
interest does not outweigh the public’s interest in access to the records, particularly when there is
a “thumb on the scale favoring disclosure.” Accordingly, the custodian’s decision to release the
records is consistent with the FOIA.
To the extent the records reference other employees, they constitute mixed records and must be
treated accordingly. Such mixed records require individualized assessment and, where
appropriate, notice to the other affected employees.20
Finally, you note that your client received actual notice of only one of the two previous FOIA
requests for her records. Specifically, you state that she did not receive notice of the May 2025
request, in response to which these records were produced, and that this lack of notice explains
why she did not object to their release at that time. Whether the custodian properly provided notice
to your client in connection with a prior FOIA request falls outside the scope of my review under
A.C.A. § 25-19-105(c)(3)(B). I therefore do not address that issue here.
Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.
Sincerely,
TIM GRIFFIN
Attorney General
20 Ark. Att’y Gen. Op. 2025-093.