Can an Arkansas records custodian refuse to release a public employee's personnel file when the requester is clearly using FOIA to harass the employee?

Plain-English summary

Lori McDonald, who worked at the Arkansas Department of Human Services, found herself the subject of a FOIA request for "any documents involving" her employment. The custodian decided to disclose 151 pages of redacted personnel records. McDonald objected. She presented strong evidence that the specific requester's only motive was to harass, annoy, or harm her and the people she knew. Could the custodian use that evidence to shield her records from this particular requester?

AG Dustin McDaniel's answer: no. The personnel-records balancing test under Young v. Rice is entirely objective. The custodian looks at the records and asks whether disclosure would constitute a clearly unwarranted invasion of personal privacy as an objective matter; the requester's identity and subjective motive do not enter the analysis. The AG quoted Justice Ginsburg's concurrence in Dept. of Defense v. FLRA to capture the federal-law parallel: "the identity and particular purpose of the requester is irrelevant under the [federal] FOIA" because that neutrality "serves as a check against selection among requesters... according to idiosyncratic estimations of the request's or requester's worthiness."

That said, the AG made three findings. First, the custodian had properly decided to disclose the personnel records under the objective test. Second, the custodian had to make additional mandatory redactions: every occurrence of McDonald's personnel number (a security-purpose identifier under A.C.A. § 25-19-105(b)(11)), and personal contact information of current or former public employees mentioned on listed pages (under A.C.A. § 25-19-105(b)(13)). Third, while McDonald's harassment claim was "extremely strong" and might persuade a judge to issue a no-contact order or an order forbidding the requester from seeking information about her, that remedy belongs to a court, not to the FOIA custodian. FOIA simply does not authorize custodians to deny access based on the custodian's assessment of the requester's intent.

The AG also drew a careful boundary. The requester's subjective motive cannot itself be the basis for nondisclosure. But in close cases the requester's motive can be considered when assessing whether an objective public interest exists. That is the lens through which Stilley v. McBride allowed the Arkansas Supreme Court to consider a requester's subjective interest as evidence of an objective public interest. The point is not to grade the requester; the point is to evaluate whether the records shed light on government operations.

Currency note

This opinion was issued in 2014. 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

Can an Arkansas custodian ever refuse a FOIA request because the requester is hostile or threatening?
Not under FOIA itself. The personnel-records balancing test is objective. The remedy for a requester abusing public-records processes to harass an individual is a court order (harassment action, no-contact order, civil protection order), not a custodian's denial.

Why is the test objective?
Because FOIA is designed to be requester-neutral. As Justice Ginsburg's concurrence in Dept. of Defense v. FLRA explained, allowing custodians to weigh the worthiness of requesters would let agencies pick favorites. The discipline of an objective test forces consistent disclosure decisions.

The two-step Young v. Rice balancing test:
(1) does the information give rise to a greater than de minimus privacy interest? If no, the thumb-on-the-scale presumption of disclosure wins. (2) If yes, does the public interest in disclosure outweigh the privacy interest? The party resisting disclosure (typically the subject) bears the burden under Stilley v. McBride.

What does the custodian have to redact even when releasing a personnel file?
At minimum: personnel/employee identification numbers (under A.C.A. § 25-19-105(b)(11), as security-function identifiers similar to passwords and PINs) and personal contact information of current or former public employees (under A.C.A. § 25-19-105(b)(13)). The AG identified specific pages where these redactions were missing.

What can a target of a harassing FOIA request actually do?
Go to court. The AG specifically noted McDonald's evidence might support a judge issuing a no-contact order or an order forbidding the requester from seeking information from or about her. The FOIA custodian's job is not to police harassment; that is the judicial system's job.

Does the requester's motive ever matter at all?
Only in this narrow sense: when the existence of an objective public interest is unclear, Stilley v. McBride allows a court to consider whether the requester's stated motive helps demonstrate that public interest. The requester's motive cannot be the basis for denial, but it can supply evidence supporting disclosure.

Background and statutory framework

A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) authorized the AG opinion procedure for FOIA personnel and evaluation-records release decisions.

A.C.A. § 25-19-105(b)(12) (Supp. 2013) shielded personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

A.C.A. § 25-19-105(b)(11) shielded "[r]ecords containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network, including telecommunication networks or applications thereon, to perform security functions, including, but not limited to, passwords, personal identification numbers ...." The AG treated personnel numbers as falling within this category.

A.C.A. § 25-19-105(b)(13) required redaction of personal contact information of current or former public employees.

Young v. Rice, 308 Ark. 593 (1992), provided the two-step balancing test for personnel records, with the thumb-on-the-scale presumption favoring disclosure. Stilley v. McBride, 332 Ark. 306 (1998), placed the burden on the records subject and recognized that requester motive can supply evidence of objective public interest. Dept. of Defense v. FLRA, 510 U.S. 487 (1989) (Ginsburg, J., concurring) supplied the federal-law analog underscoring requester neutrality.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (AG-opinion procedure)
• A.C.A. § 25-19-105(b)(12) (personnel records exemption with privacy balancing)
• A.C.A. § 25-19-105(b)(11) (mandatory redaction of security-function identifiers)
• A.C.A. § 25-19-105(b)(13) (mandatory redaction of public-employee personal contact information)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (burden on records subject; motive as evidence of public interest)
• Dept. of Defense v. Federal Labor Relations Authority, 510 U.S. 487 (1989) (Ginsburg, J., concurring) (requester-neutrality principle)
• Op. Att'y Gen. Nos. 2011-095, 2006-218 (requester intent generally irrelevant)
• Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198 (objective character of privacy test)
• Op. Att'y Gen. 2014-084 (definition of personnel records)

Source

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

Original opinion text

Opinion 2014-094
August 22, 2014

Lori McDonald
Post Office Box 1437, Suite 260
Little Rock, AR 72201

Dear Ms. McDonald:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013), which authorizes the custodian, requester, or the subject of personnel or employee evaluation 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 someone has requested copies of "any documents involving" your employment. The custodian has decided to disclose redacted copies of various personnel records totaling 151 pages. You object to this disclosure because you believe that, given the requester's identity and behavior, the disclosure of these records to this specific requester would be a clearly unwarranted invasion of your personal privacy. You say that the requester's sole motive is to use these documents to harass, annoy, and potentially harm you or those you know. You ask whether, in light of your concerns, the custodian is required to shield your personnel records from disclosure to this specific requester.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion (1) that the custodian has properly decided to disclose these personnel records; (2) that some additional information must be redacted before disclosure; and (3) that, while your harassment claim is extremely strong and may well persuade a judge to issue a "No Contact" order or an order that forbids the requester from seeking information from or about you, the custodian cannot consider this claim in the context of the FOIA.

DISCUSSION

A document must be disclosed in response to a FOIA request if all three of the following elements are met. First, the FOIA request must be directed to an entity subject to the act. Second, the requested document must constitute a public record. Third, no exceptions allow the document to be withheld.

The only dispute here is whether the exception for personnel records requires the custodian to shield these 151 pages of records from disclosure to this specific requester.

A personnel record is any record that pertains to an individual employee that is not an employee-evaluation document. The FOIA requires that personnel records be disclosed unless doing so constitutes a clearly unwarranted invasion of personal privacy.

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, has provided some guidance. To determine whether the release of a personnel record would constitute a "clearly unwarranted invasion of personal privacy," the court applies a balancing test that weighs the public's interest in accessing the records against the individual's interest in keeping them private. The balancing takes place with a thumb on the scale favoring disclosure.

The balancing test elaborated by Young v. Rice has two steps. 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 minimus privacy interest. If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus privacy interest, then the custodian must determine whether that interest is outweighed by the public's interest in disclosure. Because the exceptions must be narrowly construed, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective.

As noted above, you object to disclosure of these records because, you say, the requester is seeking these records solely to harass, annoy, or harm you or those whose relationships with you are revealed in these records. You give very strong evidence to support your concerns.

But, as noted above, when custodians conduct the balancing test for personnel records, the test is entirely objective. That means that, as this office has consistently noted, the custodian does not consider the subjective motives or identity of the requester. Justice Ginsburg, who was assessing a similar rule in the federal FOIA, noted that "the identity and particular purpose of the requester is irrelevant under the [federal] FOIA." This rule, she continued, "serves as a check against selection among requesters, by agencies and reviewing courts, according to idiosyncratic estimations of the request's or requester's worthiness."

Therefore, though you have strong evidence that the requester is merely seeking to harass you, neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester. Therefore, in my opinion, the custodian cannot consider this objection and has properly applied the FOIA. I must note, however, that the custodian should also redact every occurrence of your personnel number. This number appears several times throughout these documents. Further, the record on page 82 of the PDF of the documents that the custodian intends to release contains a list of current or former public employees. Some of these employees' personal contact information appears to be contained on pp. 11, 37, 52, 70, 98, and 122. The FOIA requires that personal contact information of current or former public employees be redacted.

I hasten to add that I recognize harassment occurs when the offender uses a method that is itself legal in to further the illegal purpose of harassing, annoying, or intimidating the victim. For example, the offender might repeatedly call the victim's home or photograph the victim in a public place. Here, there appears to be strong evidence that the requester is using the FOIA to harass. But only a court has the authority to declare that to be the case and to fashion an appropriate remedy. I believe some judicial remedy may be available to you in this instance. But the FOIA simply does not authorize custodians to deny access to public records due to the custodian's assessment of the requester's intent to harass.

Sincerely,
Attorney General

DM:cyh