Does an Arkansas public employee have the right to see their own internal affairs file before discipline is final?

Plain-English summary

A Little Rock city employee filed an internal complaint against another Little Rock employee. The subject of the complaint then made a FOIA request for "a complete copy of an internal complaint filed by [the complainant]" and "a complete copy of [the subject's] Internal Affairs (IA) Investigation File." The City's records custodian classified most of the responsive documents as the subject's evaluation records that were "still in the administrative process," meaning no final suspension or termination had yet been issued. The custodian planned to release a few items as personnel records but withhold the rest. Shella Evans, the City's Labor and Employee Relations Manager, asked the AG whether that decision was consistent with the FOIA.

Then-Attorney General Leslie Rutledge said no. The custodian had applied the wrong test. The four-prong gate in § 25-19-105(c)(1) (suspension/termination, finality, basis, compelling public interest) controls disclosure of evaluation records to third parties. It does not apply when the requester is the subject of the records. Section 25-19-105(c)(2) carves out a separate rule: public employees are entitled to obtain their own personnel and evaluation records, regardless of whether an investigation has reached final administrative resolution. The records are about the employee, so the employee gets them.

The opinion confirmed the City's decision to release personnel records to the subject was correct. The decision to withhold the subject's own evaluation records, simply because the investigation was ongoing, was inconsistent with the FOIA. The records had to be produced to the subject.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does the subject get records that the public can't?
Because the FOIA's evaluation-records exemption is a privacy protection for the employee. When the request comes from the employee, the privacy concern goes away. The Arkansas legislature wrote § 25-19-105(c)(2) to make that explicit: a public employee or former employee has the right to obtain their own personnel or evaluation records on request.

Does the subject get the entire IA file, including statements from witnesses about them?
The opinion did not draw a line between the subject's own statements and statements about the subject. It treated all of the responsive documents as records "maintained about him." The implication is that the subject is entitled to the records that pertain to him, including the statements that drive the investigation.

Can the City still withhold information about other employees mentioned in the file?
The opinion did not address that wrinkle. In practice, custodians often redact names of complainants or unrelated employees who appear collaterally in an investigation, balancing the subject's right to his own records against third-party privacy. The opinion's framing (the records are "about him") suggests the subject gets the substantive content, but third-party identifiers may still be redacted under the standard categorical-redactions list.

What about the complainant's identity?
Not addressed in this opinion specifically. Op. 2021-013 (issued days later, also to Shella Evans, on the related complainant-side request) treated the complainant's own statement as the complainant's personnel records. By analogy, when the subject sees the IA file, the complainant's identity is likely already disclosed by the underlying complaint document, but custodians should think through whether any redaction applies.

Does this rule apply to private-sector employees?
No. Arkansas FOIA reaches only public employees. Private-sector workers do not have a comparable FOIA right; their access to their personnel files depends on contract, employer policy, and any Arkansas-specific employment statute that might apply.

Background and statutory framework

Arkansas's FOIA divides employee records into two mutually exclusive categories. Personnel records under § 25-19-105(b)(12) get the Young v. Rice balancing test. Evaluation records under § 25-19-105(c)(1) require the four-prong gate before they can be released to a third-party requester. Both rules are designed to protect the employee from unwarranted disclosure.

Section 25-19-105(c)(2) handles the question this opinion turned on: what about disclosure to the employee herself? The statute gives the employee a separate, unconditioned right of access to "his or her own personnel or employee-evaluation records." It is a one-line provision that does most of the work in subject-side requests. It is not subject to the four-prong gate, because the four-prong gate exists to protect the employee, not to be wielded against her.

The opinion's correction of the custodian was procedural rather than substantive. The custodian had read the four-prong gate as a universal rule. It is not. The gate applies only to third-party requesters; § 25-19-105(c)(2) governs the subject's access.

Citations

State statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (public record definition)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identifying information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job performance records, third-party test)
• Ark. Code Ann. § 25-19-105(c)(2) (subject employee's right to own records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian's right to AG review)

Cases:

• Pulaski Cty. 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

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 6th ed., 2017)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2021-011
January 19, 2021
Shella A. Evans, Ed.D.
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Labor & Employee Relations Manager
Human Resources Department
500 West Markham, Suite B18
Little Rock, AR 72201
Dear Ms. Evans:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related records to seek an opinion from this office stating whether the custodian's decision regarding the release of such records is consistent with the FOIA.

Your correspondence indicates that the City of Little Rock has received a request under the FOIA by the subject of records for "a complete copy of an internal complaint filed by [the complainant against the subject]," as well as "a complete copy of [the subject's] Internal Affairs (IA) Investigation File." You have attached numerous documents that you believe are responsive to the request, divided into documents you intend to release and those you believe should not be disclosed to the subject-requester. You write that the few records you intend to release are the personnel records of the requester, and are thus disclosable. As to the majority of the records you have presented for my review, you write that they comprise the subject's evaluation records that "are still in the administrative process, which have not led to a suspension or termination." You ask whether your decision to release only records characterized as the personnel records of the subject-requester is consistent with the FOIA.

RESPONSE
In my opinion, your decision is inconsistent with the FOIA. According to your correspondence, the majority of the records constitute evaluation records of the subject of an internal investigation. You have decided to withhold those records from the subject, apparently because the investigation is still in the administrative process. However, the FOIA specifically provides that public employees are entitled to obtain their own personnel and evaluation records. This rule applies regardless of whether an internal investigation has reached a final administrative resolution because the records are maintained about him.

Thus, while you have correctly decided to provide the subject of the investigation with his own personnel records, your decision not to give him his own evaluation records is inconsistent with the FOIA.

DISCUSSION

The issue you have presented implicates section 25-19-105(c)(2). That section is clear that an employee or former employee has access to his or her own personnel or employee-evaluation records. And according to your correspondence, the records you have presented to me are the investigative records regarding the requester that are currently under administrative review. It is this lack of a final administrative status that appears to guide your decision to withhold most of the records from the subject-requester. But the four-prong test for evaluation records applies to third-party requests, not to requests by the subject. The records here are about the subject. The subject is therefore entitled to obtain them now, regardless of the administrative status of the investigation.

Sincerely,
LESLIE RUTLEDGE
Attorney General