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

Plain-English summary

The Pulaski County Prosecuting Attorney's Office received two Arkansas FOIA requests: one for police "Brady information" (the material prosecutors must disclose about the credibility of law enforcement witnesses) emailed to the office, and one for records of substantiated misconduct or policy violations by specific officers. The prosecutor, Will Jones, sorted hundreds of pages into 15 officer-by-officer packets, proposed redactions, and asked the Attorney General whether releasing them that way follows the FOIA.

Attorney General Tim Griffin concluded the records are "mixed records" and split them:

• The emails (the Brady material) are personnel records of the officers they mention, and nothing in them would be a clearly unwarranted invasion of privacy, so releasing them is consistent with the FOIA.
• Forms like the "Supervisory Evaluation Form," "Administrative Evaluation Form," "Officer Resume," and "Concise Officer History" are employee-evaluation records. Those may be released only for officers who were suspended or terminated (and only if the rest of the four-part test is met), and must be withheld for officers whose alleged misconduct was not sustained or did not lead to suspension or termination. The AG agreed with the prosecutor's plan to withhold the latter.
• Because law enforcement officers hold a significant public trust, the "compelling public interest" prong is usually satisfied for records reflecting policy violations by disciplined officers.

The AG added two practical cautions: the proposed redactions only marked where redactions would go rather than fully obscuring the text (so he could not verify them), and the prosecutor must cite the specific FOIA exemption for each redaction under A.C.A. § 25-19-105(a)(3)(B). Whether particular records are even responsive to the requests is outside the AG's review authority.

What this means for you

Prosecutors and records custodians

The opinion confirms that Brady emails from police agencies, held by a prosecutor's office, are releasable personnel records of the officers named. For evaluation-type forms, run the four-part test officer by officer: release only where the officer was suspended or terminated, the discipline is final, the record is relevant, and there is a compelling public interest. Withhold the forms for officers who were not disciplined. The opinion also reminds custodians that redactions must fully hide exempt text (not just mark it) and that each redaction needs a stated exemption under A.C.A. § 25-19-105(a)(3)(B).

Journalists and police-accountability advocates

The opinion signals that in Arkansas, records reflecting sustained misconduct by suspended or terminated officers are generally obtainable, because officers carry a significant public trust that usually creates a compelling public interest. But records about officers who were investigated and not disciplined stay confidential as evaluation records.

Criminal defense attorneys

The opinion treats the prosecutor's Brady emails as public personnel records, which is relevant to understanding what impeachment material about law enforcement witnesses exists and can be obtained. It does not decide any Brady disclosure obligation in a specific case; it addresses only FOIA classification.

Officers whose records were requested

An officer suspended or terminated over sustained misconduct should expect the related evaluation forms to be disclosable once the discipline is final. An officer investigated but not disciplined is protected: the opinion supports withholding those evaluation records.

Common questions

Q: Are police "Brady" records held by a prosecutor public in Arkansas?
A: The opinion treats the Brady emails as personnel records of the officers named and finds their release consistent with the FOIA, since nothing in them was a clearly unwarranted invasion of privacy.

Q: Can the public see officer misconduct evaluation forms?
A: Only for officers who were suspended or terminated, and only if the full four-part evaluation-records test is met. For officers who were not disciplined, the opinion says those forms must be withheld.

Q: Why is misconduct by police officers more likely to be disclosable?
A: The opinion says law enforcement officers are invested with significant public trust, so there is usually a compelling public interest in records reflecting their policy violations.

Q: What if an officer's termination was overturned on appeal?
A: The opinion notes that if the discipline was reduced to a suspension, the first prong is still met; but if the final discipline was less than a suspension (like a reprimand), the record should be withheld.

Q: Does the AG decide which records are responsive to the request?
A: No. The opinion says determining responsiveness and non-responsiveness is outside the scope of the AG's statutory review; that is the custodian's job.

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), a presumption that is rebuttable (Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)).

Personnel records are open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under 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 records, 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), are released only when the four-part test in A.C.A. § 25-19-105(c)(1) is met. "Mixed records," which combine more than one person's records or record types, are analyzed portion by portion. Redactions must fully obscure exempt material under A.C.A. § 25-19-105(f)(3), and exemptions must be identified under A.C.A. § 25-19-105(a)(3)(B).

Citations and references

Statutes:
- A.C.A. § 25-19-105 (FOIA exemptions; personnel and evaluation records; redaction; identifying exemptions)
- 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. 2026-065
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.

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 files5 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.