Can MEMS (Metropolitan Emergency Medical Services) release the names, job titles, departments, and salaries of all employees under Arkansas FOIA, even when 33 employees object?

Plain-English summary

Jon Swanson, the Executive Director of Metropolitan Emergency Medical Services (MEMS), asked AG Dustin McDaniel for a FOIA opinion. Someone had filed a FOIA request asking for the name, job title, department, base salary, and annual salary of every current full-time and part-time MEMS employee. Swanson, acting as the records custodian, had decided to release the information. Thirty-three employees objected to the release. None of them gave any specific reason for objecting.

The AG approved the custodian's decision. Three steps:

Step 1: Is MEMS subject to Arkansas FOIA? Yes. Per Op. 95-326, MEMS is a public entity covered by the act. The opinion didn't restate the analysis from 95-326, but the relevant facts were that MEMS receives substantial public support, performs public emergency medical services, and qualifies under the "private entity supported wholly or in part by public funds" test in A.C.A. § 25-19-103.

Step 2: Are the requested records "public records"? Yes. They reflect MEMS' official duties regarding staffing and employee compensation, which is what FOIA generally treats as public-records subject matter.

Step 3: Does any exception require withholding? No. Name, job title, department, and salary are paradigm "personnel records" under A.C.A. § 25-19-105(b)(12). Personnel records are released unless doing so would be a "clearly unwarranted invasion of personal privacy." The AG had repeatedly opined (citing Op. 2011-156 and many others) that this kind of basic identifying and compensation information does not generally cross the unwarranted-invasion threshold. The public has a strong interest in knowing who works for public agencies and what they are paid. The 33 employees who objected did not provide any specific reason for their objections, and so they did not meet their burden to demonstrate that disclosure would be a clearly unwarranted invasion of their personal privacy.

So the custodian was right to plan to release the records. Decision consistent with FOIA.

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 Arkansas public employees keep their names and salaries secret?
Generally no, at least at the level of name, job title, department, and salary. Under A.C.A. § 25-19-105(b)(12), this kind of basic personnel information is released unless disclosure would be a "clearly unwarranted invasion of personal privacy." AG opinions have consistently held that the public has a strong interest in this information, and that generic objections by employees do not meet the high standard for withholding.

Is MEMS a public entity subject to FOIA?
At the time of this opinion, yes. MEMS (Metropolitan Emergency Medical Services) is the Little Rock-area emergency medical services provider. Under A.C.A. § 25-19-103, FOIA reaches "any entity supported by public funds or expending public funds." Op. 95-326 had previously concluded that MEMS fell within this scope. See also Sebastian County Chapter of Am. Red Cross v. Weatherford, 311 Ark. 656 (1993) (Red Cross subject to FOIA based on public funding).

Can an employee block disclosure of their own personnel record by objecting?
Not unilaterally. Under the FOIA framework, an employee who objects can ask the AG for an opinion under A.C.A. § 25-19-105(c)(3)(B)(i), and the employee can give specific reasons why their personal privacy outweighs the public interest. But objections without reasons do not meet the "clearly unwarranted invasion of personal privacy" standard. The default is disclosure.

What's the difference between "personnel records" and "employee evaluation records"?
Personnel records (A.C.A. § 25-19-105(b)(12)) are records like names, job titles, salaries, payroll information, and similar documents. They use a "clearly unwarranted invasion of personal privacy" test. Employee evaluation or job performance records (A.C.A. § 25-19-105(c)(1)) are records created to evaluate the employee. They use a four-part test that requires final administrative resolution of a suspension or termination and a compelling public interest in disclosure.

Does FOIA cover salaries, or just hourly rates?
Both. The 2014 opinion covered "base salary" and "annual salary" of every full-time and part-time employee. Hourly rates, total compensation, bonuses, overtime, and benefits paid out of public funds typically follow the same rule.

Who decides if disclosure is a "clearly unwarranted invasion of personal privacy"?
The records custodian makes the initial determination. The employee can object and request an AG opinion. Ultimately, if a dispute persists, a court can decide. The party seeking to withhold the record (the employee, in most cases) has the burden of showing the privacy interest outweighs the public interest in disclosure.

Background and statutory framework

The Arkansas FOIA framework for personnel records sits in two related sections:

• A.C.A. § 25-19-105(b)(12): "Personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy" are exempt from disclosure. The negative implication: personnel records that do not constitute such an invasion are released.
• A.C.A. § 25-19-105(c)(1): Employee evaluation or job performance records use a different, more protective test.

Arkansas AG opinions have built a body of law on what counts as a "clearly unwarranted invasion of personal privacy." Routine identifying and compensation information rarely qualifies. The privacy threshold is more likely to be triggered by medical conditions, home addresses (in some circumstances), Social Security numbers, financial account information, family circumstances, and similar sensitive matters.

The procedural mechanism for the AG opinion is A.C.A. § 25-19-105(c)(3)(B)(i): the custodian, the requester, or the subject of the records can request an AG opinion on whether the custodian's decision is consistent with FOIA. The opinion is advisory; it does not bind the custodian.

The 2014 opinion is brief because the substantive question was easy. Salary and basic identifying information for public-agency employees are paradigm examples of disclosable personnel records. The employees who objected without reasons did not give the AG anything to weigh on the privacy side of the balance. The AG followed the well-established rule and approved the disclosure.

Op. 95-326 established MEMS' status as a FOIA-covered entity. Op. 2011-156 collected prior AG opinions on the personnel-records test. These two prior opinions are doing most of the substantive work in the 2014 opinion's analysis.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2013) (procedural mechanism for AG FOIA opinion)
• A.C.A. § 25-19-105(b)(12) (personnel records exception with "clearly unwarranted invasion" test)
• Op. Att'y Gen. 95-326 (MEMS is a public entity subject to FOIA)
• Op. Att'y Gen. 2011-156 (name, job title, salary information generally releasable)

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. 2014-059

June 9, 2014

Jon Swanson
MEMS, Executive Director
1101 West Eighth Street
Little Rock, Arkansas 72201

Dear Mr. Swanson:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian, 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 correspondence indicates that someone has requested the name, job title,
department, "base salary," and annual salary of all current full-time and part-time
MEMS employees. You have determined that this information should be released
under the FOIA. Thirty-three employees object to the release but do not give any
reason for their objections.

RESPONSE

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, there are no exceptions that require the document to be withheld. The first
two of elements are met.

MEMS is an entity subject to the FOIA. See Op. Att'y Gen. 95-326. The records sought reflect
the performance of MEMS' official duties regarding staffing and employee compensation.

Therefore, the requested records must be released unless some exception requires
otherwise. This office has repeatedly concluded that the kinds of records being
requested here qualify as "personnel records," which must be released unless
doing so "constitutes a clearly unwarranted invasion of personal privacy." In
addition, this office has repeatedly opined that the release of information being
sought does not, as a general matter, rise to the level of a clearly unwarranted
invasion of personal privacy. None of the objectors offers any specific reason to
overcome the general rule that this information must be released.

Accordingly, the custodian's decision to release this information is, in my opinion,
consistent with the FOIA.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/RO:cyh

See A.C.A. § 25-19-105(b)(12); see generally Op. Att'y Gen. 2011-156.