Was Arkansas Community Correction's decision to release Tenisha Brown's redacted personnel file consistent with the Arkansas FOIA?

Plain-English summary

Tenisha Brown, a former Arkansas Community Correction (ACC) employee, learned that someone had filed a FOIA request for her personnel file. The records custodian had decided to release the file with redactions. Brown asked the AG to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets a record subject ask for AG review of disclosure decisions.

The AG found the custodian's decision "not entirely consistent" with FOIA and identified three categories of corrections.

Additional redactions required (information that should have been blacked out but was not):

• Residence address on a 2010 traffic violation report
• Personnel number (Op. Att'y Gen. 2016-118)
• Insurance coverage (Op. Att'y Gen. 2004-167)
• Tax information and withholding (Op. Att'y Gen. 2005-194)
• Banking information (Op. Att'y Gen. 2005-194)
• Payroll deductions (Ops. Att'y Gen. 2003-320, 98-126)

Records entirely exempt (must be withheld, not just redacted):

• W-4 Forms (Op. Att'y Gen. 2012-064)
• Direct deposit authorization records (Op. Att'y Gen. 2008-129)
• Criminal history reports from State Police via ACIC (Op. Att'y Gen. 2008-138)
• Employment records relating to wage garnishments (Ops. Att'y Gen. 2008-138, 2007-008)
• Performance Evaluations and other employee-evaluation records that did not form the basis for a suspension or termination

Possibly incorrect redaction:

• The contact information of one personal reference on Brown's 2003 employment application. If the reference is a public employee, it stays redacted. If not, there is no clear basis to redact it (Op. Att'y Gen. 2016-129).

The AG also flagged a procedural defect: the custodian's redactions were noncompliant because the redacted information was still visible through the redaction. To fix that, the custodian should "either photocopy the redacted pages or scan them into a PDF" (Op. Att'y Gen. 2015-016). And the AG noted that records related to a workforce services unemployment claim might be exempt under Ark. Code Ann. § 11-10-314(a) (a separate confidentiality statute outside the AG's normal review under § 25-19-105(c)(3)(B)(i)).

Currency note

This opinion was issued in 2017. 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.

Background and statutory framework

The FOIA framework here mirrors that in Opinion 2017-099 (LRPD incentive pay) and 2017-089 (DHS personnel file). Three threshold elements: public entity, public record, no exception forecloses release. Two key exceptions: the personnel-records exemption (§ 25-19-105(b)(12)) requires balancing under Young v. Rice, 308 Ark. 593 (1992), with disclosure favored; the employee-evaluation exemption (§ 25-19-105(c)(1)) is much stricter, requiring suspension or termination, final administrative resolution, the records forming a basis for the decision, and a compelling public interest.

The AG could and did review the actual records here (unlike in Opinion 2017-099). That allowed item-by-item application of the redaction list and the evaluation-record exemption.

The Thomas v. Hall test for evaluation records. Thomas v. Hall, 2012 Ark. 66 (2012), defined "employee evaluation or job performance records" as records (1) created by or at the behest of the employer, (2) to evaluate the employee, and (3) that detail the employee's performance or lack of performance on the job. Records of investigations into alleged misconduct fall into the same category if they detail the misconduct.

The AG's reasoning

Why personnel records still need redaction. Even where a personnel record passes the Young v. Rice balancing test as a whole, certain discrete pieces of information have stand-alone protection under statute or AG opinion. The AG walked through the standard list (personal contact, dates of birth, SSNs, medical information, undercover-officer identifiers, tax/withholding, banking, payroll deductions, etc.) and identified specific items in Brown's file that the custodian had missed. The 2010 traffic violation residence address was a particularly clear miss, since residence addresses of public employees are statutorily protected under § 25-19-105(b)(13).

Why entire records get withheld. Some categories of records are wholly exempt regardless of context:

• W-4 forms carry tax information, dependents, and SSNs in such concentration that meaningful redaction would leave nothing useful (Op. Att'y Gen. 2012-064).
• Direct deposit authorizations contain banking information that must be redacted under settled AG opinion (2008-129); after redaction, the form has no remaining substance.
• ACIC criminal history reports are protected by federal/state CJIS rules and Op. Att'y Gen. 2008-138.
• Garnishment-related employment records are protected by Ops. Att'y Gen. 2008-138, 2007-008.
• Performance evaluations that did not form the basis for a suspension or termination fail the four-part Thomas v. Hall test. The AG specifically identified Brown's performance evaluations and two pieces of supervisor correspondence (August 25, 2015, and July 27, 2004) as exempt employee-evaluation records.

The personal-reference question. Brown's 2003 employment application listed a personal reference whose contact information had been redacted. The AG noted that if the reference is a public employee, the personal contact protection in § 25-19-105(b)(13) applies. If not, redacting personal information of a private individual who agreed to serve as a reference does not have a clear FOIA basis (Op. Att'y Gen. 2016-129).

The procedural redaction defect. This was an important practical reminder: redactions that leave information visible through the marker do not actually protect anything. The custodian needs to use a method that produces a final document without the information showing: typically by photocopying the redacted page or scanning to PDF.

The workforce services records issue. Ark. Code Ann. § 11-10-314(a) makes information held by the Arkansas Department of Workforce Services confidential. Brown's file apparently contained records related to a claim for unemployment benefits. The AG flagged but did not analyze this exemption: it is governed by a different statute and is outside the AG's normal § 25-19-105(c)(3)(B)(i) review (citing Op. Att'y Gen. 2010-057, 2012-072).

Common questions

Why are W-4 forms entirely exempt and not just heavily redacted?
Because once you remove the SSN, dependents, allowances, and signature, almost nothing is left except a header. The AG has consistently treated W-4s as wholly exempt rather than asking custodians to release a near-empty form.

What is the difference between a "personnel record" and an "employee evaluation record"?
A personnel record is any record about an individual employee. An employee evaluation record is the subset that detail performance, was created to evaluate the employee, and was made by or at the employer's behest. The first category is open with redactions (subject to the Young v. Rice test). The second category is mostly closed.

Can a former employee block release entirely if she objects?
No. The test is objective: "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." A former employee's preference does not control. The AG's review is limited to what the FOIA actually requires.

What was the practical effect of the AG's opinion?
ACC's custodian had to redact more, withhold the listed exempt records entirely, fix the visibility problem on existing redactions, and reconsider the redaction of the personal reference's contact info. After those corrections, the remaining file could be released to the requester.

Does this opinion apply to private-sector personnel files?
No. FOIA reaches public entities only. Private employers' personnel files are governed by separate state and federal employment-law confidentiality rules.

Source

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

Original opinion text

Opinion No. 2017-085
July 28, 2017

Tenisha Brown
c/o Amber R. Schubert, General Counsel
Arkansas Community Correction
105 West Capitol, 3rd Floor
Little Rock, AR 72201-5731

Dear Ms. Brown:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). 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 asked to review your personnel file under the FOIA. The attorney for the custodian of records has attached a redacted copy of your personnel file, which the custodian has determined is subject to release under the FOIA. You ask 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. In my opinion, the custodian's decision is not entirely consistent with the FOIA. A number of additional redactions must be made prior to the records' release. Additionally, the custodian apparently intends to release several records that, on their face, appear to be entirely exempt from disclosure; and the custodian may have incorrectly redacted certain information from one record. I will identify these items below, following a discussion of the general rules governing disclosure.

As a final matter, the redactions on the records that were submitted to my office are noncompliant with the FOIA because the redacted information is still visible through the redaction. As I have previously stated, the surest way to resolve this is to either photocopy the redacted pages or scan them into a PDF.

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 first two elements appear met in this case. As for the first element, the documents are held by Arkansas Community Correction ("ACC"), which is a public entity. As for the second element, the FOIA defines "public record" as:

[W]ritings, 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 attached documents in this instance — which are part of your personnel file — reflect the performance or lack of performance of official functions of either you or officials at ACC. Therefore, in my opinion, these documents 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

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. 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. Whether a particular record meets this definition is, of course, a question of fact that can only be definitively determined by reviewing the record itself. 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 the scale tipped in favor of 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. 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:

• 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);
• Payroll deductions (Ops. Att'y Gen. 2003-320, 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

b) Employee-evaluation exception

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But the Arkansas Supreme Court has adopted this office's view that the term refers to any records (1) created by or at the behest of the employer (2) to evaluate the employee (3) that detail the employee's performance or lack of performance on the job. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

III. Application

Having reviewed the records, it is my conclusion based on the above guidelines and previous opinions of this office, that (1) certain additional information must be redacted throughout these records, (2) several records must be withheld entirely, and (3) certain information may have been incorrectly redacted from one record. I will not identify each and every record that requires additional redaction, but will instead identify the information to be located and redacted by the custodian.

(I note that there are several records that appear to be related to a claim for unemployment benefits with the Arkansas Department of Workforce Services. You should be aware that these kinds of records can be exempt from disclosure pursuant to a separate statute, Ark. Code Ann. § 11-10-314(a). See Op. Att'y Gen. 2010-057. I cannot further assess in this opinion the extent to which this exemption applies to the records at hand. Such an inquiry is outside the ordinary scope of my review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i). Accord Op. Att'y Gen. 2012-072.)

(1) Additional redactions

• Residence address on traffic violation report dated 06/09/10;
• Personnel number (Op. Att'y Gen. 2016-118);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information and withholding (Op. Att'y Gen. 2005-194);
• Banking information (Op. Att'y Gen. 2005-194);
• Payroll deductions (Ops. Att'y Gen. 2003-320, 98-126)

(2) Exempt records

• W-4 Forms (Op. Att'y Gen. 2012-064);
• Direct deposit authorization records (Op. Att'y Gen. 2008-129);
• Criminal history reports provided by State Police through ACIC (Op. Att'y Gen. 2008-138);
• Employment records relating to wage garnishments (Ops. Att'y Gen. 2008-138, 2007-008);
• Employee-evaluation records that did not form the basis for suspension or termination. (From the face of the records, this includes correspondence from the Center Supervisor dated August 25, 2015, correspondence from the Human Resources Administrator dated July 27, 2004, and all the Performance Evaluations.)

(3) Possible incorrect redaction

• Personal reference contact information. (The contact information of one individual listed as a personal reference has been redacted from the Application for Employment dated 06/06/03. If this person was or is a public employee, then this information is exempt from disclosure. See Op. Att'y Gen. 2016-129. Otherwise, there is no clear basis, in my opinion, for redacting this contact information.)

In conclusion, it is my opinion that the custodian's decision is not entirely consistent with the FOIA. The additional redactions listed above must be made prior to the records' release (and redacted thoroughly enough so that the information cannot be read or otherwise discovered). And the exempt records identified above are entirely exempt from disclosure, in my opinion. The custodian should therefore remove these records prior to releasing the remaining records, as redacted consistent with this opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General