Can Arkansas DHS withhold employee records because the FOIA requester might harass employees?

Plain-English summary

Three employees of the Arkansas Department of Human Services Office of Payment Integrity and Audit, Claudette Holt, Michael Munnerlyn, and David Tures, objected to DHS's planned release of their personnel records. They raised two basic concerns: (1) they worried about the identity of the requester and possible harassment, and (2) they doubted that there was enough public interest in some of the information to justify disclosure.

AG Leslie Rutledge addressed both objections head-on:

1. Requester identity is irrelevant. Arkansas has not created a "harassment exemption" to FOIA. The custodian generally cannot consider the requester's identity or motives. So the harassment concern, however genuine, is not a basis to withhold disclosable personnel records.

2. Job applications of public employees rarely contain disclosable items that constitute a clearly unwarranted invasion of privacy. Educational background and work history reflect job qualifications, which are a public-interest matter. The personnel records exemption's "clearly unwarranted invasion of personal privacy" standard does not protect that information.

Functionally, the AG approved the custodian's redacted release, with two operational fixes:

• One Social Security number was not redacted (likely an oversight) on a "Proof of Prior Service" form for Michael Munnerlyn. Must be redacted before disclosure.
• One other state employee's personnel number was not redacted on a "Hiring Freeze Exception Request" form. Must be redacted before disclosure.

The AG could not verify some other redactions (contact information of some but not all business and personal references) without seeing the un-redacted versions. The relevant rule: if references are current or former public employees, their personal contact information is exempt. If they're private, it isn't.

Currency note

This opinion was issued in 2016. 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

Q: Can a public employee block FOIA release by saying the requester is a stalker?
A: No, not on those grounds alone. Arkansas FOIA has no harassment exemption. The AG and courts have repeatedly said that requester identity and motive are irrelevant. If there is a separate legal basis (an actual restraining order, or a court order), that may matter, but the FOIA itself does not consider intent.

Q: What about a personnel record that contains an image of the employee's signature?
A: The AG referenced Op. Att'y Gen. 2015-011, which discussed signature redaction under the Young v. Rice balancing test. Generally, signatures are not redacted on personnel records.

Q: What is the "Proof of Prior Service" form?
A: A standard state HR form that documents prior public-sector service for purposes of leave accrual, retirement credit, or seniority. It may include identifying information that has to be redacted (SSN, DOB).

Q: When does a colleague's information get redacted from a personnel file?
A: When the file contains identifying numbers or contact info for other public employees who were not the subject of the FOIA request. Their personnel numbers, dates of birth, and personal contact information stay redacted.

Q: Are reference contacts always redacted?
A: Only public-employee reference contact info is redacted under § 25-19-105(b)(13). Private-sector reference contact info is not.

Background and statutory framework

The Arkansas FOIA at § 25-19-101 et seq. presumes release. The relevant exemption here is § 25-19-105(b)(12), which protects personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Young v. Rice supplies the two-step balancing test with a thumb on the scale favoring disclosure. Stilley v. McBride puts the burden on the person resisting disclosure.

Multiple AG opinions and the leading FOIA commentary (Watkins & Peltz) have consistently treated job applications and accompanying records of public employees as personnel records that generally must be released, with a standard list of items that must be redacted (personal contact info, SSN, DOB, medical, banking, etc.).

The AG's review under § 25-19-105(c)(3)(B)(i) is limited to whether the custodian's decision is consistent with the FOIA. It is not an open forum for objections on grounds outside the FOIA's framework. An opinion does not weigh in on harassment, motive, retaliation, or related concerns unless those concerns map onto an actual statutory exemption.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(5)(A) (public record definition)
• Ark. Code Ann. § 25-19-105(b)(10), (12), (13) (exemptions)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (opinion review)

Cases:

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

Source

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

Original opinion text

Opinion No. 2016-118
November 21, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Claudette Holt, Deputy Director
Michael Munnerlyn, Audit Coordinator
David Tures, Internal Auditor
DHS Office of Payment Integrity & Audit
P. O. Box 1437, Slot S270
Little Rock, AR 72203-1437

Dear Ms. Holt and Messrs. Munnerlyn and Tures:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). This subsection authorizes the custodian, requestor, 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 the Arkansas Department of Human Services ("DHS") has received an FOIA request regarding your personnel records. In response to the FOIA request, the records custodian has identified certain records and has determined that the records are personnel records that should be disclosed after redacting certain information, including your personal contact information. You object to the disclosure of these records and have proffered numerous reasons for your objection. These reasons can be divided into two basic categories: 1) the identity of the requestor and concerns about possible harassment; and 2) doubts as to whether there is a sufficient public interest in some of the information contained in the records.

RESPONSE

An opinion of this office issued pursuant to the FOIA is limited to reviewing the custodian's decision with respect to the release of personnel or employee-evaluation records or both. I am not authorized under the FOIA to address specific questions posed by the custodian, subject, or requestor of the records. I can only address the decisions made by the custodian regarding the records at issue; and I will discuss the pertinent provisions of the FOIA bearing on these records.

Having reviewed the redacted records, it is my opinion that the records have been properly classified as personnel records. It is my further opinion, based on the face of the records, that the custodian's decision to release the records as redacted is for the most part consistent with the FOIA. But I cannot definitively assess the custodian's decision to redact certain contact information from your resumes. Nor can I determine why one Social Security number was not redacted from the records, other than perhaps by oversight. I also note the need to redact another employee's personnel number prior to the records' release.

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, there must be no exemptions that allow the document to be withheld.

The first two elements are clearly met in this case. As for the first element, the documents are held by DHS, an agency of the State of Arkansas, which clearly is a public entity and thus subject to the FOIA. As for the second element, an employment application kept by DHS clearly qualifies as a "public record."

II. Exceptions to disclosure

In my opinion, the most relevant exemption here is the one for "personnel records." While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. This office and the two leading commentators on the FOIA have repeatedly observed that job applications of public employees, and accompanying records, such as resumes and standard employee-intake documents, generally fall within this definition. Accordingly, such records must be released 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 minimis privacy interest. If the privacy interest is merely de minimis, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimis 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. But the mere fact that the subject of a record may consider the record's release an unwarranted invasion of his 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:

• Personal contact information of public employees, including personal telephone numbers, personal e-mail addresses, and home addresses (Ark. Code Ann. § 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385); and
• Payroll deductions (Op. Att'y Gen. 98-126);
• Banking information (Op. Att'y Gen. 2005-194).

III. Application

In my opinion, the custodian has properly classified the records at issue as your personnel records and has, for the most part, correctly redacted exempt information under the above test for the release of personnel records. It is my opinion that disclosure of these records, as redacted, does not constitute a clearly unwarranted invasion of personal privacy.

Your objections to the records' release can be separated into two basic objections: 1) the identity of the requestor with concerns about possible harassment; and 2) doubts as to the existence of a sufficient public interest in some of the information contained in the records. With respect to the first objection, this office has long noted that custodians are generally not permitted to take the requestor's identity or motives into account when responding to an FOIA request. The General Assembly has not seen fit to establish a generalized "harassment exemption" to the release of otherwise disclosable personnel records. Accordingly, in my opinion, that basis for your objection is insufficient to overcome the law's requirement that the records be released.

As to the second objection, job applications of public employees rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, save for the types of information I have listed above. As such, in my opinion, your doubts as to the public interest in certain information contained in the records would not form the basis for DHS to either withhold your employment applications or make additional redactions under the personnel records exemption.

In my opinion, the custodian has properly redacted your personal contact information and your other confidential information, except in one instance where a Social Security number has not been redacted (see "Proof of Prior Service" form for Michael Munnerlyn). I also note, on another document (OPM form entitled "Hiring Freeze Exception Request"), the personnel number of another state employee, whether current or former, was not redacted. This would need to be corrected prior to disclosure.

The custodian made some redactions, however, that are questionable from the face of the records before me, specifically, the decision to redact contact information of some (but not all) of your business and personal references. Not having seen the original, unredacted documents, though, I cannot definitively opine on the propriety of the custodian's decision or determine the basis for these redactions. I will simply note that if these individuals are current or former public employees, then their personal contact information is clearly exempt from disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General