Can an Arkansas school district custodian withhold a settlement agreement and complaint records about a public employee as personnel records under FOIA?

Plain-English summary

This is the predecessor to Op. Att'y Gen. 2014-038. A school district custodian's attorney, George Spence, asked the AG to review the custodian's response to a FOIA request seeking the most recent contract of a particular employee, certain leave information, and "all emails pertaining to [the particular employee]." The custodian had disclosed the contract, withheld some documents as personnel records under the privacy exception, and proposed releasing a third set in redacted form. AG Dustin McDaniel concluded: (1) the records were correctly classified as personnel records; (2) without unredacted copies, the AG could not assess most of the redactions; (3) one redaction in the settlement agreement was almost certainly improper because A.C.A. § 25-18-401 reflects an "extremely high" public interest in public-entity settlement agreements.

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.

What the AG concluded

Classification: the records are personnel records.
The AG followed his earlier opinions holding that when a public employee files a written complaint against a coworker or supervisor, the complaint is the personnel record of the complaining employee (and, depending on the circumstances, the personnel record or employee evaluation of the person complained about). The records the custodian gathered all fit one of those categories.

Disclosure: yes, the records should be released.
Under the two-step Young v. Rice balancing test, the records carry a greater-than-de-minimis privacy interest, but it is outweighed by the public's interest given the nature of the complaint.

Redactions: one is almost certainly improper.
The custodian did not provide unredacted copies of most documents, so the AG could not evaluate them. The exception was the Employment Settlement Agreement and Release, where the AG had enough context to conclude that the redacted paragraph was "almost certainly improper" because A.C.A. § 25-18-401 reflects a strong legislative judgment that settlement agreements with public entities should not be kept secret.

Standard items that must always be redacted from personnel records:

• Dates of birth (Op. 2007-064)
• Social security numbers (Ops. 2006-035, 2003-153)
• Medical information (Op. 2003-153)
• Identifying information for certain undercover law enforcement officers (A.C.A. § 25-19-105(b)(10))
• Driver's license numbers (Op. 2007-025)
• Insurance coverage details (Op. 2004-167)
• Tax information or withholding (Ops. 2005-194, 2003-385)
• Payroll deductions (Op. 98-126)
• Banking information (Op. 2005-194)
• Unlisted telephone numbers (Op. 2005-114)
• Personal contact information including home addresses and phone numbers (A.C.A. § 25-19-105(b)(13))
• Marital status and information about dependents (Op. 2001-080)

Common questions

Q: How is a "personnel record" different from an "employee evaluation"?
For FOIA purposes, the two categories are mutually exclusive. A personnel record may be released unless disclosure would be a "clearly unwarranted invasion of personal privacy" (the Young v. Rice balancing test). An employee evaluation can be released only if (a) there has been final administrative resolution of a suspension or termination based on the evaluation, AND (b) there is a compelling public interest in disclosure.

Q: What is the Young v. Rice balancing test?
Step 1: Is the information personal or intimate enough to create a greater-than-de-minimis privacy interest? If not, disclose. Step 2: If yes, does the public's interest in disclosure (measured by whether disclosure would "shed light on a public entity's performance of its statutory duties" or let citizens know "what their government is up to") outweigh the privacy interest? The balancing takes place "with a thumb on the scale favoring disclosure."

Q: Why is the settlement agreement different from other personnel records?
A.C.A. § 25-18-401 expressly prohibits a public official from agreeing to keep any part of a public-entity litigation settlement secret. The General Assembly's intervention is a clear thumb on the disclosure side of the scale. The AG read it as making the public interest in settlement-agreement terms "extremely high."

Q: What does the custodian have to do under A.C.A. § 25-19-105(c)(3)(B)(i)?
The custodian, the requester, or the subject of the personnel/evaluation records can ask the AG to review whether the custodian's release-or-withhold decision is consistent with the FOIA. The AG's review covers the entirety of the custodian's decision, including any redactions made under the personnel-records exception. That is why the AG reviewed the redactions even though Spence said he was not asking for that review.

Background and statutory framework

The Young v. Rice balancing test for personnel records sits at the heart of Arkansas FOIA practice. Stilley v. McBride, 332 Ark. 306 (1998), confirmed the two-step structure and the thumb-on-the-scale favoring disclosure. The opinion catalogs the standard "always redact" items by cross-referencing earlier AG opinions, which together build up a consistent list of categories deemed off-limits even when the underlying document is otherwise disclosable.

The follow-up opinion (Op. Att'y Gen. 2014-038, issued April 4, 2014) revisited the settlement-agreement redaction after the custodian provided an unredacted copy and switched to a FERPA-based ground for the same redaction. The AG concluded in that follow-up that the personnel-records exception still did not justify the redaction.

Citations

Statutes

• A.C.A. § 25-19-105 (Arkansas FOIA exemptions)
• A.C.A. § 25-19-105(b)(10) (undercover officer information)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(b)(13) (personal contact info exception)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion authority over custodian decisions)
• A.C.A. § 25-19-103(1)(A) (definition of "custodian")
• A.C.A. § 25-18-401 (prohibition on secret public-entity settlements)

Cases (Arkansas Supreme Court)

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Prior AG opinions referenced

• Op. Att'y Gen. Nos. 2007-064, 2007-025, 2007-003, 2006-176, 2006-035, 2005-194, 2005-114, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2001-112, 2001-080, 2001-022, 98-126, 98-001, 97-368, 94-198, 2012-073, 2012-074

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-027

March 21, 2014

George R. Spence
121 South Main Street
Bentonville, Arkansas 72712

Dear Mr. Spence:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013). This subsection 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 letter indicates that someone has requested the most recent contract of a particular employee, certain information about her leave, and "all emails pertaining to [the particular employee] sent or received" by certain persons within a certain timeframe. You report that you have already disclosed the contract and withheld from disclosure certain documents as personnel records "the release of which would be a clearly unwarranted invasion of personal privacy." You say you seek my opinion on a third set of records (which you have attached). Regarding the latter, you have determined (a) that the attached documents qualify as personnel records and (b) that their release would not be an unwarranted invasion of the employee's personal privacy. You have also made several redactions from these records. Though you say you are not asking for my opinion on the propriety of the redactions, for reasons explained below, I believe my statutory obligation requires me to review the propriety of redactions purportedly made in compliance with the personnel-records exception.

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 classified the records as personnel records; (2) that, with one exception, I am unable to assess the propriety of the redactions because I have not been furnished with unredacted copies; and (3) that at least one of the redactions is most likely improper.

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. I will focus my analysis on the third element.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items are mutually exclusive: "personnel records" or "employee evaluation or job performance records." The test for whether these two types of documents may be released differs significantly.

When custodians assess whether either of these exceptions applies to a particular record, they must make two determinations. First, they must determine whether the record meets the definition of either exception. Second, assuming the record does meet one of the definitions, the custodian must apply the appropriate test to determine whether the FOIA requires that record be disclosed.

In my opinion, the attached records are personnel records. This office has consistently held that when a public employee registers a written complaint against a supervisor or coworker, that complaint is the personnel record of the employee making the complaint. The attached documents qualify as either the complaint itself, documents submitted to support the complaint, or documents generated in the process of settling the complaint. Therefore, in my view, the custodian has correctly determined that the records are personnel records.

The next question is whether the test for the disclosure of personnel records requires that the attached documents be disclosed. All personnel records are open to public inspection and copying except "to the extent that disclosure would constitute 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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include:

• dates of birth of public employees (Op. 2007-064);
• social security numbers (Ops. 2006-035, 2003-153);
• medical information (Op. 2003-153);
• any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));
• driver's license numbers (Op. 2007-025);
• insurance coverage (Op. 2004-167);
• tax information or withholding (Ops. 2005-194, 2003-385);
• payroll deductions (Op. 98-126);
• banking information (Op. 2005-194);
• unlisted telephone numbers (Op. 2005-114);
• personal contact information of public employees (e.g. home addresses, home phone numbers) (A.C.A. § 25-19-105(b)(13)); and
• marital status of employees and information about dependents (Op. 2001-080).

In my opinion, the custodian has correctly decided to release the attached documents. The documents do convey information that gives rise to a greater-than-de-minimus privacy interest for the employee. But, in my opinion, this interest is outweighed by the public's interest given the nature of the complaint.

Finally, the custodian has made several redactions on which I must make two comments. First, you say that you are not asking me to review the propriety of your redactions. But I understand my statutory obligation under 25-19-105(c)(3)(B)(i) to extend to the entirety of the custodian's decision regarding personnel or employee evaluation documents. Accordingly, to the extent your redactions were made in purported compliance with the personnel-records exception, they are within the scope of my review.

Nevertheless, because I have not been provided with unredacted copies, I am unable to discuss the propriety of the redactions, with one exception. The document titled "Employment Settlement Agreement and Release," contains a redaction that is almost certainly improper. As I explained in Opinion No. 2007-003, the General Assembly has (by virtue of A.C.A. § 25-18-401) made it clear that there is an extremely high public interest in the entirety of a public entity's settlement agreement. So while it is theoretically conceivable that a privacy interest can be so great that it overcomes the high public interest in a settlement agreement, the information conveyed in the documents you have attached causes me to doubt that is the case here.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

DUSTIN McDANIEL
Attorney General

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