Can a Pulaski County former employee's personnel file be released after redacting certain personal information?

Plain-English summary

Carla Daniels, a former Pulaski County employee, asked the AG to review the County's decision to release her personnel file with certain redactions in response to a FOIA request. The request used the personnel-records review procedure in A.C.A. § 25-19-105(c)(3)(B)(i).

AG Dustin McDaniel's bottom line: the custodian's decision was mostly consistent with the FOIA, but with three categories of issues.

Over-redactions (information that should have been released):

• Race and gender entries on several "Personnel Appointment or Status Change" forms. The AG had consistently opined that this is generally disclosable for public employees.
• City of residence and phone numbers for personal references who were never public employees. The privacy interest is de minimis, no statutory exemption applies, and the AG had previously held that contact info for a job applicant's references in a non-exempt public record is open.

Under-redactions (information that should have been removed):

• Marital status and family-life information on several records. Although one record had been properly redacted in this respect, the same redactions were missing elsewhere.

The AG also noted that the public-employee contact information rule in A.C.A. § 25-19-105(b)(13) extends to both current and former public employees, consistent with how subsection (b)(12) handles former employees.

The records here were properly classified as personnel records (not employee-evaluation records), so the Young v. Rice balancing test applied. The custodian's job was to redact only what would create a clearly unwarranted invasion of personal privacy.

Currency note

This opinion was issued in 2015. 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

Does it matter that Daniels was a former, not current, employee?
For most exemptions, no. The AG noted that both the (b)(12) personnel-records exemption and the (b)(13) public-employee contact-info exemption extend to former employees. The custodian's analysis works the same way after the employment ends.

Why are race and gender treated differently from marital status?
The AG had developed a clear line: for public employees, race and gender give rise to only a de minimus privacy interest, so the disclosure thumb on the scale wins. Marital and family-life information is treated as more intimate and personal, enough to overcome the disclosure presumption.

What about a job applicant's references?
Contact information for references who are not themselves public employees is generally open if it appears in a non-exempt public record. The AG had previously opined that addresses, resumes, telephone numbers, and the names of references would probably not even trigger constitutional protection. Public-employee references get more protection under § 25-19-105(b)(13).

Could the AG have done a record-by-record breakdown?
The AG's role under § 25-19-105(c)(3)(B)(i) is to state whether the custodian's release decision is consistent with the FOIA. The opinion identified categories of errors and pointed to the specific record types that needed adjustment. The custodian then had to apply the AG's guidance to each document before release.

Background and statutory framework

The framework is the standard FOIA personnel-records framework laid out in Young v. Rice and a series of AG opinions. "Personnel records" under A.C.A. § 25-19-105(b)(12) are everything other than employee-evaluation records that pertains to individual employees. They are open except where disclosure would be a "clearly unwarranted invasion of personal privacy." The Young v. Rice test asks (1) whether the privacy interest is more than de minimis, and (2) if so, whether that interest outweighs the public interest in disclosure. The presumption favors disclosure, and the person resisting disclosure carries the burden.

Within personnel records, even a record that is open as a whole may contain discrete pieces of information requiring redaction. The AG and the leading commentators (Watkins & Peltz, The Arkansas Freedom of Information Act) had built up a list of routine redactions: social security numbers, dates of birth, medical info, insurance coverage, marital status, family details, home addresses (for public employees per (b)(13)), personal e-mail addresses, and so on.

For employee-evaluation records under A.C.A. § 25-19-105(c)(1), release requires all four elements: suspension or termination, finality of the administrative resolution, the records as the basis for the discipline, and a compelling public interest. The AG found none of Daniels's records qualified as employee-evaluation records, so that exception was not in play.

Citations

• A.C.A. § 25-19-103(5)(A) (definition of "public record")
• A.C.A. § 25-19-105(b)(12) (personnel records exemption)
• A.C.A. § 25-19-105(b)(13) (public employee contact information exemption)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records release test)
• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• 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 (employee evaluation definition)
• Op. Att'y Gen. 2014-027 (typical items requiring redaction)
• Op. Att'y Gen. 2010-070 (references' contact info generally disclosable)
• Op. Att'y Gen. 2005-100; 91-351 (race of public employees disclosable)
• Op. Att'y Gen. 2003-095 (subsection (b)(12) extends to former employees)

Source

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

Official summary

Is the decision of the custodian of records to release personnel records of a former county employee after making several redactions in response to a request for the subject's entire personnel file consistent with provisions of the Freedom of Information Act ("FOIA")?

RESPONSE: Yes, with a few exceptions. This office has previously opined that race and gender are generally disclosable information and that the addresses and telephone numbers of a job applicant's references when contained in a non-exempt public record are not exempt from disclosure. Additionally, information about marital status and family life must be redacted under A.C.A. § 25-19-105(b)(12)'s "clearly unwarranted invasion of personal privacy" standard.

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDaniel

Opinion No. 2015-003

January 12, 2015

Carla Daniels
c/o Mary Ann Zakrzewski, Director
Pulaski County Human Resources Department
201 South Broadway, Suite 100
Little Rock, Arkansas 72201

Dear Ms. Daniels:

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). 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.

It is my understanding that you are a former employee of Pulaski County, Arkansas, and that someone has submitted a FOIA request to Pulaski County for your personnel file. It is my further understanding that the custodian of records for the County intends to release the file after making certain redactions. You have submitted the records to my office and you seek my opinion on whether the custodian's decision to release the records as redacted is consistent with the FOIA.

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 that the custodian's decision is for the most part consistent with the act. As explained below, however, a few more redactions are necessary and a few redactions may be inconsistent with the FOIA.

DISCUSSION

I. General standards governing disclosure.

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 FOIA requestor's identity or motive for making the request is generally irrelevant to whether a non-exempt public record should be released.

The first two elements appear met in this case. As for the first element, the documents are held by the County, which is a public entity. As for the second element, the FOIA defines "public record" 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 which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employee, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.

All the documents you have submitted plainly meet this definition. Therefore, in my opinion, they are public records and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "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.

a. Personnel-records exception.

It appears that the relevant exception in this case is the one for "personnel records." The FOIA does not define this term. But this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. If a document meets this definition, then it is 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. Additionally, 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 under the above balancing test.

III. Application.

It is my opinion that the records in question are properly classified as personnel records. The custodian's decision to release them with certain redactions is, in my opinion, consistent with the FOIA for the most part because most of the redactions are required under the balancing test set out above. However, I believe a few of the redactions are inconsistent with the FOIA and several additional redactions are necessary.

With regard to the incorrect redactions, this office has previously opined that the race and gender of public employees is generally disclosable under the FOIA. It is therefore my opinion that this information should not be redacted from the several documents entitled "Personnel Appointment or Status Change."

Additionally, as a general matter, there is no clear basis, in my opinion, for redacting from a personnel record the addresses and telephone numbers of personal references who have never been public employees. These pieces of information are not exempt under A.C.A. § 25-19-105(b)(12), the "personnel records" exemption, because any privacy interest the employee might have in the information is de minimus. Nor is this information exempt under any other provision of law, in my opinion. There is no other applicable statutory exemption. And this office has previously opined that the addresses and telephone numbers of a job applicant's references when contained in a non-exempt public record are not exempt from disclosure.

Consequently, depending upon whether the references listed on your job application have ever been public employees, the redaction of the addresses and telephone numbers may be inconsistent with the FOIA.

Finally, information about marital status and family life must be redacted under A.C.A. § 25-19-105(b)(12)'s "clearly unwarranted invasion of personal privacy" standard. Although this information is redacted from one of the records, I note that the necessary redactions in this regard have not been made from several other records. The custodian must ensure that these redactions are made prior to the records' release.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/EAW:cyh