What redactions does Arkansas FOIA require before releasing a former city employee's personnel file to the news media?

Plain-English summary

Media outlets requested the entire personnel file of a former Fayetteville city employee. The records custodian decided to release the file with redactions, and the subject of the records objected without giving a specific reason. Assistant City Attorney Blake Pennington asked the AG whether the release decision was consistent with the FOIA.

The AG concluded the City's decision was largely correct but needed additional specific redactions. The AG examined Bates-numbered documents in the file:

• Most of the records classified as "employee evaluation records" were correctly classified, and the AG had no reason to question the custodian's judgment that the four-prong release test was met (suspension or termination occurred, final administrative resolution, records formed basis, compelling public interest).
• One document (Bates 070) was misclassified. It was a memorandum describing a general departmental policy, not an evaluation or personnel record, but a public record subject to disclosure either way.
• Most of the documents classified as "personnel records" (Bates 071-183) were correctly classified, but several specific redactions were needed.

Currency note

This opinion was issued in 2018. 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.

Specific redactions ordered

The AG identified five mandatory redactions and four conditional ones.

Mandatory:

• Bates 096: Subject's address (full redaction). Per Ark. Code Ann. § 25-19-105(b)(13).
• Bates 099: Subject's date of birth (full redaction). Per Op. Att'y Gen. 2007-064.
• Bates 101, 104, 161: References to subject's marital status. Per Ops. Att'y Gen. 2016-093 and 2001-080.
• Bates 161: Reference to subject's "number of dependents." Per Op. Att'y Gen. 2001-080.
• Bates 171: Insurance refund amount. Per Ops. Att'y Gen. 2017-085, 2003-320, 98-126 (intimate financial information).

Conditional (depends on what the item actually is):

• Bates 074: Personal references' addresses and phone numbers, depending on whether listed/unlisted and any special privacy interests.
• Bates 126, 161-162: "Job Account Number," depending on whether it is sensitive financial information.
• Bates 161: "Annual Exemptions" count.
• Bates 161: "Health INS" code, if it relates to health insurance coverage.
• Bates 161-171, 175, 183: Employee number, if it functions as a security identifier (PIN-equivalent) under § 25-19-105(b)(11).

Common questions

Why does the subject's objection not control?
The privacy test is objective. Per Young v. Rice and consistent AG practice (Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198), whether the subject considers release an unwarranted invasion is irrelevant. The custodian and the AG balance the public's interest against an objectively assessed privacy interest.

What's the difference between Bates 070 (departmental policy memo) and a personnel record?
A personnel record must "sufficiently relate to an individual employee or former employee" (Op. Att'y Gen. 2012-001). A general policy memo applies to everyone in the department and is not specifically about one employee. It's just a public record open to inspection.

What gives someone the right to compel redaction?
The FOIA itself, through specific carve-outs in § 25-19-105(b) and AG-developed redaction lists for items like SSN, DOB, home address, marital status, dependent count, banking information, and security-function data.

What is the "compelling public interest" test for evaluation records?
Look at: nature of infraction (especially public-trust violations or gross incompetence), existence of public controversy related to the agency, and the employee's position. The AG noted Op. Att'y Gen. 2014-088 and 2013-144 specifically for misconduct by law-enforcement officers, finding compelling interest in violations of departmental rules aimed at conduct that could undermine public trust or compromise public safety.

Why did the AG defer to the custodian on most evaluation-record judgments here?
Because the custodian's "compelling public interest" determination is "a question of fact that must be decided by the custodian" (Ops. 2014-088 and 2006-026). The AG only intervenes if the face of the records gives a reason to second-guess.

Background and statutory framework

Arkansas's FOIA splits employment-related records into personnel records (open unless clearly unwarranted privacy invasion under Young v. Rice balancing) and employee-evaluation records (closed unless all four prongs of § 25-19-105(c)(1) are met). Even when a record is releasable as a whole, specific items must be redacted under § 25-19-105(b)(11) (security data) and § 25-19-105(b)(13) (personal contact info), plus a developed body of AG opinions on financial information, medical information, marital status, dependents, DOB, etc.

This opinion is most useful as a working redaction checklist: it tells records custodians and requesters what to look for in a typical personnel-file release.

Citations

• Ark. Code Ann. § 25-19-105(b)(11) (security functions, PIN-equivalent data)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion)
• 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

Source

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

Original opinion text

Opinion No. 2018-025
March 9, 2018
Blake E. Pennington
Assistant City Attorney
113 West Mountain, Suite 302
Fayetteville, AR 72701

Dear Mr. Pennington:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). 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 media outlets have requested the entire personnel file of a former city employee. The records custodian provided the subject of the records with documents determined to be responsive to the request. The subject of the records has objected to their release, though no specific reason for the objection was provided. 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. The subject of the records has objected to their release in their entirety. My focus will be on determining whether additional redactions are necessary, and whether any records should be withheld altogether.

Having reviewed the records, it is my opinion that all but one of the records has been properly classified as either the subject's personnel records or employee-evaluation records. It is further my opinion that the decision to disclose these records, with the redactions indicated, is largely correct. However, a number of additional redactions must be made prior to the documents' release. And one document appears to be simply a public record subject to disclosure. I have Bates numbered the documents enclosed with this opinion for ease of identification.

DISCUSSION

I. General standards governing disclosure.

III. Application.

I can now apply the foregoing to the records that the custodian has determined should be disclosed, subject to certain redactions. As stated above, I will limit my analysis to whether additional redactions must be made and whether any records should be withheld altogether.

The majority of the documents designated as "employee evaluation records" have been properly classified, in my opinion. With regard, however, to the document Bates numbered 070, it is my opinion that this is neither an employee-evaluation record nor a personnel record concerning the former employee. It is a memorandum describing a general, departmental policy, and in my opinion it meets neither of the definitions of employee-related definitions set out above, but rather is simply a public record subject to disclosure.

As for the majority of the records, however, as explained above, a record that has been properly classified as an employee-evaluation record cannot be released unless each prong of the four-prong test for disclosure is met. One of those prongs requires that the evaluation formed a basis for the former employee's suspension or termination. Given the custodian's decision to disclose all of the employee-evaluation records sent for my review, I take it that the custodian has determined that each of the records did in fact form a basis of the former employee's termination in this instance. I have no reason from the face of the records to second-guess the custodian's decision in this regard.

Likewise, there must be a compelling public interest in the disclosure of an employment-evaluation record before the records can be released. Especially in the context of evaluations involving misconduct by law-enforcement officers, this office has consistently opined that a compelling public interest likely exists in information reflecting a violation of departmental rules aimed at conduct which could undermine the public trust or compromise public safety. Again, given the decision to disclose all of them, I take it that the custodian has determined there is a compelling public interest in disclosure of all the employment-evaluation records in question. And from the face of the records, I have no reason to question this determination, which is a question of fact that must be decided by the custodian.

I also believe the majority of documents designated as "personnel records" have been properly classified. (Bates numbers 071-183). But in my opinion, a number of additional redactions must be made before their release. These redactions include:

• Bates number 096: The subject's address must be redacted in full.
• Bates number 099: The subject's date of birth must be redacted in full.
• Bates numbers 101, 104, and 161: The reference to the subject's marital status must be redacted.
• Bates number 161: The reference to the subject's "number of dependents" must be redacted.
• Bates number 171: The insurance refund amount must be redacted.

And the following redactions may need to be made, but I lack sufficient information to definitively opine in this regard:

• Bates number 074: The addresses and telephone numbers of the subject's personal references, "depending upon whether they are listed or unlisted and any special privacy interests attendant thereto."
• Bates number 126, 161-162: The "Job Account Number." [The AG cannot tell from the face of these records whether the "account number" listed constitutes sensitive financial information, but this office has opined that it is generally inappropriate to release documents containing intimate financial details.]
• Bates number 161: The number of "Annual Exemptions."
• Bates number 161: The "Health INS" code. [If it is information regarding the subject's health insurance with the City, then this information must be redacted.]
• Bates numbers 161-171, 175, and 183: The employee number to the extent that it is "data used to cause a computer or a computer system . . . to perform security functions, including, but not limited to . . . personal identification numbers . . . ." See Ark. Code Ann. § 25-19-105(b)(11) (Supp. 2017); see also Op. Att'y Gen. 2017-134.

In conclusion, it is my opinion that the custodian's decisions with respect to these records are mostly consistent with the FOIA. Additional redactions, however, must be made as noted.

Sincerely,

LESLIE RUTLEDGE
Attorney General