Is a Department of Correction custodian's decision to release certain redacted records about two former ADC employees consistent with the Arkansas FOIA?

Plain-English summary

Jim DePriest, the Chief Legal Counsel for the Arkansas Department of Correction (ADC), asked the AG to review the ADC custodian's decisions about releasing records related to the suspension, termination, or resignation of two former ADC employees. A citizen had filed a FOIA request, the custodian had pulled responsive documents, decided that with certain redactions they could be released, and asked the AG to confirm.

The AG broke the documents into five categories:

1. Part of the request based on an assumed fact. The opinion declined to opine because the AG cannot act as a factfinder when issuing FOIA opinions under § 25-19-105(c)(3)(B)(i).

2. Documents that are neither personnel nor employee-evaluation records. Many submitted documents (pages 5-9, 11-20, 22, 24-25, 39-48, 53, 55-64, 66-72, 74, and certain emails on pages 23 and 52) fell outside the AG's statutory charge, which is limited to personnel and employee-evaluation records. The AG declined to opine on them, noting that they were probably non-exempt public records open to inspection.

3. One employee-evaluation record. The document at pages 3-4 was clearly created by or at the behest of the employer to evaluate an employee. Because the four-part disclosure test (suspension or termination, finality, basis, compelling public interest) appeared to be met, the AG concluded the release decision was consistent with FOIA.

4. Three audio recordings. These likely were personnel records that should be released with redactions to avoid clearly unwarranted invasions of personal privacy. But the recordings were not perfectly audible and no transcript was provided, so the AG could not determine exact content or specify what to redact.

5. Two unclassifiable documents (pages 49-50, 75-89). The custodian had not stated how these were classified. The AG could not determine from their face whether they were personnel records, employee-evaluation records, or both. The custodian had to evaluate the surrounding facts to classify them and apply the proper test.

6. The remaining documents. These were properly classified as personnel records, and the AG agreed that releasing them unredacted (pages 1, 10, 21, 26-31, 36-38, 51, 54, 65, 73, 90, and certain emails on pages 23 and 52) would not constitute a clearly unwarranted invasion of personal privacy.

The opinion is principally useful for two things: a careful taxonomy of the FOIA's personnel and employee-evaluation regimes (with their separate disclosure tests), and an explicit reminder that the AG cannot act as a factfinder under § 25-19-105(c)(3)(B)(i), so requests resting on assumed facts are non-reviewable.

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

What is the difference between a personnel record and an employee-evaluation record?

Personnel records are the catch-all category: records that pertain to individual employees and aren't employee-evaluation records. Employment applications, payroll data, transfer records, recommendation letters, disciplinary actions, leave records, training certificates, and subpoenas all typically count as personnel records. They are open to inspection except to the extent disclosure would be a clearly unwarranted invasion of personal privacy (Young v. Rice balancing test).

Employee-evaluation records are records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance (Thomas v. Hall). They have a tougher disclosure test: suspension or termination, finality of the administrative resolution, the records formed a basis for the decision, and compelling public interest.

What is the Young v. Rice balancing test?

For personnel records under § 25-19-105(b)(12), the custodian first assesses whether information is of a personal or intimate nature giving rise to more than a de minimis privacy interest. If yes, the custodian balances that privacy interest against the public's interest in disclosure. The balance is struck with a thumb on the scale favoring disclosure. Stilley v. McBride confirmed that the burden is on the person resisting disclosure.

What discrete pieces of information must always be redacted?

The opinion lists a representative set: dates of birth (Op. 2007-064), Social Security numbers (Ops. 2006-035, 2003-153), medical information (Op. 2003-153), undercover-officer identifiers (§ 25-19-105(b)(10)), driver's license numbers (Op. 2007-025), insurance coverage (Op. 2004-167), tax/withholding information (Ops. 2005-194, 2003-385), payroll deductions (Op. 98-126), banking information (Op. 2005-194), unlisted telephone numbers (Op. 2005-114), home addresses of most public employees (§ 25-19-105(b)(13)), personal email addresses (Op. 2004-225), and marital status / dependent information (Op. 2001-080).

Why couldn't the AG opine on the "assumed fact" portion of the request?

Under § 25-19-105(c)(3)(B)(i), the AG's role is to opine whether the custodian's decision is consistent with the FOIA. If the underlying request is premised on a fact that the AG would have to verify (e.g., that something actually happened in a particular way), the AG would have to act as a factfinder, which is outside the scope of that statute.

What's the disposition of the audio recordings?

The AG said they are likely personnel records that should be released with certain redactions to protect personal privacy. But because the recordings were not perfectly audible and the custodian did not provide a transcript, the AG could not determine the exact content or specify what to redact. The implication was that the custodian needed to either provide a transcript or make redaction decisions and resubmit.

Background and statutory framework

The Arkansas FOIA covers personnel matters principally through two exceptions: § 25-19-105(b)(12) for personnel records (with the Young v. Rice balancing test for clearly unwarranted invasions of personal privacy) and § 25-19-105(c)(1) for employee-evaluation records (with the four-part Thomas v. Hall test). The custodian's-opinion mechanism in § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject seek an AG opinion on consistency with the FOIA.

Several mandatory-redaction provisions sit outside the personnel-records section: § 25-19-105(b)(10) for undercover-officer identifying information and § 25-19-105(b)(13) for home addresses of most public employees.

The opinion also drew on Watkins and Peltz's treatise, which articulates the working framework AG opinions have consistently applied: the list of typical personnel-file documents, the practical scope of the employee-evaluation exception, and the factors used to evaluate the "compelling public interest" prong.

Citations

• Ark. Code Ann. § 25-19-103(5)(A) (Repl. 2014)
• Ark. Code Ann. § 25-19-105(b)(10)
• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(b)(13)
• Ark. Code Ann. § 25-19-105(c)(1)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Repl. 2014)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act 187-89, 204, 216-218 (Arkansas Law Press, 5th ed., 2009)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-072
June 30, 2015

Mr. Jim B. DePriest, Chief Legal Counsel
Arkansas Department of Correction
P.O. Box 8707
Pine Bluff, Arkansas 71611-8707

Dear Mr. DePriest:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, made as the custodian, is based on a statutory subsection that authorizes the custodian, requester, or 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 request indicates that a citizen has requested certain documents under the FOIA. You have attached several documents that you believe are responsive to the request. You apparently have determined that each such document is a personnel record and that, with the exception of certain information you propose to redact, each such document is open to inspection and copying. You ask whether your decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision with respect to personnel and employee evaluation records is consistent with the FOIA.

I must note as an initial matter that one part of the FOIA request is premised on — and takes as a given — an assumed fact. You have not identified which, if any, of the attached documents are responsive only to that part of the FOIA request. Thus I am unable, in any event, to render an opinion on your decision regarding this part of the FOIA request because doing so would require me to test the accuracy of the assumed fact. An inquiry of that sort falls outside the scope of this opinion. I cannot act as a factfinder when rendering opinions pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

Regarding the other part of the FOIA request, having reviewed the records you submitted, I conclude:

1. Many of the documents are neither personnel nor employee-evaluation records. Because my statutory charge concerns only such records, I state no opinion on your decision to release documents that are neither personnel nor employee evaluation records.

2. One of the remaining documents is an employee-evaluation record. Because the conditions to release appear to be met, it is my opinion that your decision to release this document is consistent with the FOIA.

3. Three of the documents are audio recordings. They likely constitute personnel records that should be released, but only with certain redactions, necessary to avoid clearly unwarranted invasions of personal privacy. Because the recordings are not perfectly audible and because you did not provide a transcript, I am unable to determine the exact content of the records or the redactions that will be required in order for the recordings' release to be consistent with the FOIA.

4. You have not clearly stated how you have classified any of the documents. I am unable to determine from the face of two of the documents whether they are personnel records, employee-evaluation records, or combinations of such records. I consequently cannot review your decision regarding these records. The custodian must evaluate the surrounding facts and make this determination in order to properly classify the records and employ the proper test(s) for disclosure.

5. In my opinion, the remaining documents are properly classified as personnel records. In my opinion, your decision to release these records is consistent with the FOIA.

DISCUSSION

[The opinion walks through the general FOIA standards (three-element disclosure test, definition of "public record"), the personnel-records exception (Young v. Rice balancing, list of items that must be redacted), and the employee-evaluation exception (Thomas v. Hall definition, four-part disclosure test, compelling public interest framework), then applies them to the specific documents submitted by the ADC custodian. The detailed page-by-page application is described in the Plain-English summary above.]

Assistant Attorney General J.M. Barker prepared this opinion, which I approve.

LESLIE RUTLEDGE
Attorney General
LR/JMB:cyh