Can the public get police Brady lists and misconduct records held by an Arkansas prosecutor under FOIA?

Subject

Whether the Pulaski County Prosecuting Attorney's Office may release Brady-related emails and officer-misconduct forms, with proposed redactions, under Arkansas FOIA.

Plain-English summary

The prosecutor's office received requests for potential Brady information about law-enforcement witnesses and for records of substantiated officer misconduct or policy violations. The AG called the records submitted for review mixed records. He classified the emails as personnel records and found nothing in them whose release would be a clearly unwarranted invasion of personal privacy. Releasing these emails was consistent with FOIA.

The Supervisory Evaluation Forms, Administrative Evaluation Forms, Officer Resumes and Concise Officer Histories appeared to be employee-evaluation records. The AG approved withholding portions about employees who were neither suspended nor terminated. For portions concerning employees who were suspended or terminated, release was consistent with FOIA only if all four conditions were met: that level of discipline, final administrative resolution, a record that formed a basis for the decision, and a compelling public interest in disclosure. The AG assumed finality for some records but said it was not clear from their faces. He found relevance apparent and a compelling public interest likely for records like these reflecting law-enforcement policy violations. He did not declare every such form public.

Footnote 24 addresses overturned terminations. In one instance the discipline became a suspension, still meeting the first condition. In another the final outcome was unclear; if it was below suspension, such as a reprimand or counseling, the first condition failed and the record should be withheld.

The proposed redactions marked material for later removal but had not obscured it, so the AG could not verify whether they complied with FOIA. The custodian must fully obscure exempt material while showing where a redaction occurred and identify the applicable exemption for each exempt portion. The AG gave no opinion on material called nonresponsive because choosing responsive records lies outside his review.

What this means for you

Prosecutors and records custodians

The AG approved releasing the emails reviewed here and withholding forms for officers without suspension or termination. For other officers, the custodian must verify finality and the other statutory conditions before release. The opinion also leaves the actual redaction work and responsiveness decisions to the custodian.

Officers and FOIA requesters

A misconduct form's release cannot be decided merely by asking whether an officer received any discipline. The first condition requires suspension or termination, and three more conditions follow. This opinion treats a written reprimand or counseling after an overturned termination as insufficient for the first condition.

Common questions

Q: Were the prosecutor's Brady-related emails releasable?
A: Yes, for the emails reviewed. The AG classified them as personnel records and found no clearly unwarranted privacy invasion from release.

Q: Are evaluation forms public whenever an officer is disciplined? A: No. The first condition is suspension or termination, not any discipline. Finality, relevance and compelling public interest must also be established.

Q: Did the AG approve the proposed redactions?
A: He could not determine whether they complied with FOIA because they only marked material for removal. He also declined to rule on the proposed nonresponsive-information redactions.

Background and statutory framework

The opinion applies A.C.A. § 25-19-105(c)(1)'s four-part test to evaluation records and § 25-19-105(b)(12)'s privacy test to personnel records. It cites § 25-19-105(f)(3) for the appearance of redactions and § 25-19-105(a)(3)(B) for identifying applicable exemptions. Mixed records require the relevant test to be applied to each employee's portion.

Citations and references

• Statutes: A.C.A. § 25-19-105(a)(3)(B), (b)(12), (c)(1), (f)(3).
• Cases: Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2026-065

June 30, 2026

Mr. Will Jones
Prosecuting Attorney
Sixth Judicial District
224 South Spring Street
Little Rock, Arkansas 72201

Dear Mr. Jones:

You have requested an opinion from this Office regarding the Arkansas Freedom of Information Act (FOIA). Your request, which is made as the custodian 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 correspondence, the Pulaski County Prosecuting Attorney’s Office received two FOIA requests. The first request asks for “the latest version of potential Brady information sent in an email by a law enforcement agency to a member of the Pulaski County Prosecuting Attorney’s Office regarding any law enforcement witness, including attachments, for the time period January 1, 2020, to December 7, 2025.” The second request seeks “the latest version of records regarding substantiated allegations of misconduct or violations of internal department policy or criminal law by specific law enforcement officers that has been produced to this office by law enforcement agencies for the period January 1, 2015, through December 12, 2025.”

You have identified hundreds of pages of responsive records, which you have organized into 15 packets, each relating to an individual employee. You state that certain information within the records is not responsive to the FOIA requests, and you indicate proposed redactions. You ask whether your decision to release the records with redactions is consistent with the FOIA.

RESPONSE

In my opinion, the records you have provided for my review are mixed records. The emails constitute the personnel records of the listed employees, and nothing within them, if released, would amount to a clearly unwarranted invasion of personal privacy. Accordingly, your decision to release the emails is consistent with the FOIA.

BOB R. BROOKS JR. JUSTICE BUILDING
101 WEST CAPITOL AVENUE
LITTLE ROCK, ARKANSAS 72201
Will Jones
Prosecuting Attorney, Sixth Judicial District
Opinion No. 2026-065
Page 2

The documents entitled “Supervisory Evaluation Form,” “Administrative Evaluation Form,” “Officer Resume,” and “Concise Officer History” appear to be the evaluation records of the named employees. You propose releasing the evaluation records of those employees who were suspended or terminated as a result of the listed incidents, while withholding the evaluation records of those employees whose actions did not result in suspension or termination. I agree with your decision to withhold the records for employees who were neither suspended nor terminated. With respect to those employees who were suspended or terminated, it is my opinion that your decision to release those records is consistent with the FOIA, provided that the remaining prongs of the four-part test for release of evaluation records have been satisfied.

When redacting public records, custodians must fully obscure all redactable material while indicating that a redaction has been made. In the records provided, you have only marked where redactions are intended; therefore, I cannot determine whether the proposed redactions comply with the FOIA. As custodian, you must ensure all redactions comply with the statute when made.

Finally, the basis for some of your proposed redactions is unclear. Under A.C.A.
§ 25-19-105(a)(3)(B), if responsive records are subject to exemptions, the custodian must identify the applicable exemptions. To the extent you assert that certain information is not responsive to the FOIA requests, determining which records are responsive falls outside the scope of my statutory review under A.C.A. § 25-19-105(c)(3)(B)(i).

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 the Pulaski County Prosecuting Attorney’s Office, which is a public entity subject to the FOIA. And the records at issue appear to be public records. 2 Because these records are held by a public entity, they are presumed to be public records, 3 although that presumption is rebuttable. 4 Given that I have no information to

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 Id.
4
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)). Will Jones Prosecuting Attorney, Sixth Judicial District Opinion No. 2026-065 Page 3

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 files 5 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. 6 A personnel record is open to public inspection except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.” 7 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. 8 The balancing test, which takes place “with the scale tipped in favor of public access,” has two steps. 9 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. 10 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. 11

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

5
“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). 6 See, e.g., Ark. Att’y Gen. Ops. 2015-072, 99-147.
7
A.C.A. § 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins et al., supra note 5, at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id.
Will Jones
Prosecuting Attorney, Sixth Judicial District
Opinion No. 2026-065
Page 4

public’s interest. 12 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. 13

Even if a document, when considered as a whole, meets the test for disclosure, it may contain pieces of information that must be redacted. 14 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. 15

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. 16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 17

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). 18

12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Ark. Att’y Gen. Ops. 2016-055, 2001-112, 2001-028, 94-198; Watkins et al., supra note 5, at 207.
14
A.C.A. § 25-19-105(f).
15
A.C.A. § 25-19-105(b)(13).
16
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. 17 E.g., Ark. Att’y Gen. Op. 2015-057 (collecting citations).
18
A.C.A. § 25-19-105(c)(1); e.g., Ark. Att’y Gen. Op. 2008-065.
Will Jones
Prosecuting Attorney, Sixth Judicial District
Opinion No. 2026-065
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. 19

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, 20 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. 21 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. 22

4. Mixed records. Some employee-related records are “mixed records,” which means they are (1)
   more than one person’s evaluation, (2) at least one person’s evaluation and at least one other person’s personnel record, or (3) more than one person’s personnel record. 23 When a portion of a record is mixed, the custodian should apply the applicable tests for disclosure to that portion of the record.

5. Classification and disclosure of the emails. The emails are best classified as the personnel
   records of the employees they mention because they pertain to those employees but were not created by or at the behest of the employer to evaluate them. Further, the emails contain no information that, if disclosed, would constitute “a clearly unwarranted invasion of personal privacy.” Thus, your decision to release the emails is consistent with the FOIA.

19
Watkins et al., supra note 5, at 238–39.
20
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”). 21 E.g., Ark. Att’y Gen. Ops. 2024-045, 2023-012, 2015-057, 2011-051.
22
E.g., Ark. Att’y Gen. Op. 96-168.
23
See Ark. Att’y Gen. Op. 2020-037 (and opinions cited therein).
Will Jones
Prosecuting Attorney, Sixth Judicial District
Opinion No. 2026-065
Page 6

6. Classification and disclosure of forms. You have included multiple records entitled “Officer
   Resume,” “Concise Officer History,” “Supervisory Evaluation Form,” and “Administrative Evaluation Form.” The “Officer Resume” and “Concise Officer History” forms contain lists of incidents in which officers were involved, allegations of officer misconduct, the employer’s determinations as to whether those allegations were sustained, and any resulting disciplinary action. The “Supervisory Evaluation Form” and “Administrative Evaluation Form” each address a specific incident or allegation of misconduct and provide detailed information, including the employer’s comments and recommendations. Accordingly, your decision to classify all of these forms as the evaluation records of the named officers is consistent with the FOIA. Their release must therefore be analyzed under the FOIA’s four-part test for disclosure of employee-evaluation records.

For these forms to be releasable, all of the following elements must be satisfied: (1) the officer was suspended or terminated; (2) the suspension or termination is administratively final; (3) the records are relevant to the suspension or termination; and (4) the public has a compelling interest in the disclosure of the records. For employees whose alleged misconduct was not sustained or did not result in suspension or termination, the first two elements are not met. As a result, the forms—or portions of forms—detailing those incidents are not subject to disclosure, and your decision to withhold them is consistent with the FOIA.

With respect to forms detailing incidents or allegations that resulted in suspension or termination, the first element is satisfied. I assume the second element is also satisfied and that no suspensions or terminations are pending administrative review, although this information is not clear from the face of the records. 24 Because these records detail the grounds for suspension or termination, they appear to satisfy the third element as well. Finally, the fourth element is likely also satisfied because, as this Office has consistently opined, law enforcement officers are invested with a significant public trust, so there is usually a compelling public interest in records, such as these, that reflect violations of office policy. 25 If, indeed, all four of these elements are met, your decision to release these records is consistent with the FOIA.

7. Appearance of redactions. When redacting information from public records, custodians must
   fully obscure any redactable material so that it is not visible, while still indicating to the requester that a redaction has been made. 26 In the records provided, the information has not been fully redacted; rather, you have only marked where you intend to make redactions. Accordingly, I

24
I note that, in at least a couple of instances, an officer’s termination was overturned on appeal. In one instance, the termination was reduced to a suspension (and therefore the first prong remained satisfied). In the other instance, however, the records do not indicate what disciplinary action, if any, was imposed after the termination was overturned. If the resulting discipline was less than a suspension (such as a written reprimand or counseling), the first prong would not be satisfied, and the record should be withheld. 25 See Ark. Att’y Gen. Ops. 2023-071, 2023-013, 2014-129, 2006-026.
26
A.C.A. § 25-19-105(f)(3).
Will Jones
Prosecuting Attorney, Sixth Judicial District
Opinion No. 2026-065
Page 7

cannot determine whether the appearance of your redactions complies with the FOIA. As custodian, you must ensure that all redactions comply with the statute when they are made.

8. Basis for redactions. Finally, the basis for some of your proposed redactions is unclear.
   Under A.C.A. § 25-19-105(a)(3)(B), if responsive records are subject to exemptions, the custodian must identify the applicable exemptions. You state that you have redacted certain information from the records because it is not responsive to the FOIA requests. Determining which records are responsive to a particular FOIA request falls outside the scope of my statutory authority under A.C.A. § 25-19-105(c)(3)(B)(i). 27 Accordingly, I offer no opinion on whether those redactions are consistent with the FOIA.

Deputy Attorney General Kelly Summerside prepared this opinion, which I hereby approve.

Sincerely,

TIM GRIFFIN
Attorney General

27
It is the responsibility of the custodian to determine, in the first instance, which records are responsive to a FOIA request and whether the request is sufficiently specific to enable the custodian to locate the pertinent records “with reasonable effort.” A.C.A. § 25-19-105(a)(2)(C). My duty arises after records have been located or identified in response to a FOIA request. I am not authorized or required to advise the custodian regarding the selection of responsive documents. E.g., Ark. Att’y Gen. Ops. 2020-038, 2006-158.