When the Arkansas Real Estate Commission gets a FOIA request for an employee's personnel file, what specifically must be redacted before disclosure?

Plain-English summary

The Arkansas Real Estate Commission (AREC) received a FOIA request for the personnel file of one of its employees, Joyce Foreman. AREC's records custodian classified the records as releasable personnel records, made some redactions, and prepared to disclose them. Foreman, the records' subject, asked AG Leslie Rutledge to review whether the proposed disclosure was consistent with the FOIA, with particular attention to whether further redactions were needed.

The AG concluded:

• The records were properly classified as personnel records under Ark. Code Ann. § 25-19-105(b)(12).
• The public interest in disclosure was strong enough under the Young v. Rice balancing test to support release.
• But several discrete categories of personally identifying or financial information needed to be redacted before release.

The required additional redactions included:

• "Personnel No.", "Personnel Number," and "Per #" entries throughout the records (these are presumed computer-system access identifiers exempt under Ark. Code Ann. § 25-19-105(b)(11) for personal identification numbers used for computer security).
• "Matching" and "Contributions" line items, which appeared to track payroll deductions for retirement benefits (citing AG Op. 98-126 and the Young v. Rice balancing analysis tipping toward privacy for personal financial information).
• Social security numbers on a "Delinquent Service Form" (FY 2007), the AASIS Agency Delinquent Services Detail/Payment Reconciliation, the Department of Finance and Administration Employee Disclosure Requirements/Restrictions Notice (4/23/2007), and the Change in Employment Status form (1/14/2007).
• The employee's personal contact information (home address, home phone, personal cell, personal email) on page 6 of the 2013 online job application/resume, per Ark. Code Ann. § 25-19-105(b)(13).
• All amounts relating to taxes withheld and taxable earnings on the 8/18/2013 to 8/31/2013 payroll document, plus all pre- and post-tax deductions and net pay distribution.

Gross salary information remained subject to disclosure (it has long been treated as a public interest matter), but the granular tax and deduction lines did not.

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.

Common questions

Q: Why is "personnel number" a required redaction?
A: Personnel numbers are typically used as login or account identifiers in HR computer systems. Ark. Code Ann. § 25-19-105(b)(11) exempts records containing "personal identification numbers" used for computer security functions, so the personnel number must be removed before disclosure to keep system access controls intact.

Q: Why redact "Matching" and "Contributions" information?
A: Those line items reflect retirement-benefit contributions, which AG opinions have consistently treated as private financial information. Under the Young v. Rice balancing test, the privacy interest in this kind of detailed financial information typically outweighs the public interest, especially because gross salary (the public-accountability number) is already disclosed.

Q: What about gross salary?
A: Gross salary is disclosable. The AG has long treated public-employee gross salary as a matter of public accountability. The redactions here target sub-line items below the gross-salary level: taxes, deductions, retirement contributions, and net pay.

Q: Are home addresses always redacted for public employees?
A: Yes, by statute. Ark. Code Ann. § 25-19-105(b)(13) categorically exempts personal contact information of public employees, including personal phone numbers, personal email addresses, and home addresses.

Q: Why does taxable earnings need to come out if gross salary stays in?
A: Taxable earnings can differ from gross salary because of pre-tax deductions (retirement, health insurance, etc.). Disclosing taxable earnings invites reverse-engineering of the employee's specific deduction choices, which is the same private financial information that needs to stay redacted on its own merits.

Q: Is the records' subject's objection by itself enough to block disclosure?
A: No. The Young v. Rice test is objective. The subject's subjective view of disclosure is not determinative. Stilley v. McBride puts the burden on the person resisting disclosure to show that under the circumstances their privacy interests outweigh the public's interest.

Q: Did the AG instruct the custodian to make all the redactions, or to consider them?
A: The opinion frames each item as a "must be redacted" item, citing statutory exemptions or controlling AG precedent. The custodian's discretion is in classifying records (a fact question reviewed for consistency with the FOIA), not in choosing whether to apply mandatory redactions.

Background and statutory framework

The FOIA (Ark. Code Ann. § 25-19-101 et seq.) gives a strong default of public access. Personnel records are covered by the § 25-19-105(b)(12) exception to the extent disclosure would be a "clearly unwarranted invasion of personal privacy." Young v. Rice sets the two-step balancing test for that phrase.

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject of personnel or employee evaluation records seek an AG opinion on whether the custodian's release decision is consistent with the FOIA. That is the procedural posture of this opinion.

The categorical statutory redactions under § 25-19-105(b)(11) (personal identification numbers used for computer security) and § 25-19-105(b)(13) (personal contact information) operate independently of the balancing test: they are mandatory regardless of how the Young v. Rice analysis would come out.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifying information)
• Ark. Code Ann. § 25-19-105(b)(11) (personal identification numbers for computer security)
• 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) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion review procedure)

Cases:

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

Prior AG opinions referenced:

• Op. Att'y Gen. 98-126 (payroll deductions)
• Op. Att'y Gen. 2005-041, 2002-043 (retirement contributions and benefits)
• Op. Att'y Gen. 2006-035, 2003-153 (Social Security numbers)
• Op. Att'y Gen. 2012-063, 2005-194, 2003-385 (tax withholding)
• Op. Att'y Gen. 2018-015, 2001-112 (deductions and net pay)
• Op. Att'y Gen. 2014-094, 2007-070 (employee personnel number)
• Op. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Op. Att'y Gen. 2007-064 (date of birth)
• Op. Att'y Gen. 2003-153 (medical information)
• Op. Att'y Gen. 2004-167 (insurance coverage)
• Op. Att'y Gen. 2007-025 (driver's license number)
• Op. Att'y Gen. 2001-080 (marital status and dependents)
• Op. Att'y Gen. 2016-055, 2001-022, 94-198 (objective nature of test)
• Op. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001 (factual nature of inquiry)

Source

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

Original opinion text

Opinion No. 2018-064
May 15, 2018

Joyce Foreman
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201

Dear Ms. Foreman:

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. 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 the Arkansas Real Estate Commission (AREC) has received a request under the FOIA for your personnel files. You have attached a copy of redacted records that AREC intends to release in response to the FOIA request, and you ask whether the decision to release the records 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 decision to disclose the records at issue is generally correct, but further redactions are necessary in order for the release of the records to be consistent with the FOIA. I will set out the definitions and standards, and I will then identify the additional redactions that are necessary.

[Standard FOIA framework discussion follows, including general standards for disclosure (request to entity subject to FOIA, public records, no exception applies), the personnel-records exception under § 25-19-105(b)(12), the Young v. Rice two-step balancing test, the burden of proof on the person resisting disclosure under Stilley v. McBride, and the standard list of categories that must be redacted in any case (personal contact information, personnel number, marital status, date of birth, social security number, medical information, undercover law-enforcement identifying information, driver's license number, insurance coverage, tax information, payroll deductions, banking information).]

III. Application.

Having reviewed the records, it is my opinion that they are all properly classified as personnel records. Additionally, the public interest in disclosure is sufficiently strong to warrant the records' disclosure under the above standard applicable to personnel records. Therefore, in my opinion, the records must be released.

However, it is my opinion that the following additional information must be redacted in order for the release of the records to be consistent with the FOIA:

• Passim: A "Personnel No.", and a "Personnel Number" appear throughout the records. Additionally, in a document entitled "Hiring Freeze - Position Vacated by Retirement," the personnel number is referenced as "Per #." These numbers presumably provide access to computerized data. They must therefore be redacted because records containing "personal identification numbers" used for computer security functions are specifically exempt from disclosure under the FOIA. (Ark. Code Ann. § 25-19-105(b)(11).)

• Passim: There are several documents throughout that have information under the headings of (or relating to) "Matching" and "Contributions." It appears from the face of the records that this information may refer to payroll deductions of the employee or contributions made towards the employee's retirement benefits. If, in the custodian's opinion, either of those descriptions is an accurate representation of that information, then that information must be redacted.

• On a "Delinquent Service Form" document for fiscal year 2007: The employee's social security number must be redacted.

• The document entitled "AASIS Agency Delinquent Services Detail/Payment Reconciliation": The employee's social security number must be redacted. Also, please refer to the second bullet point above.

• On page 6 of 9 of the employee's 2013 online job application (date printed: 11/5/2013), namely the employee's resume, the employee's personal contact information (home address, home telephone number, personal cellphone number, and personal email address) must be redacted. A public employee's personal contact information, including home address, is specifically exempt under the FOIA.

• The payroll document for pay period 8/18/2013 to 8/31/2013, all amounts relating to taxes withheld and taxable earnings must be redacted. While gross salary information is clearly subject to disclosure, this office has consistently opined that tax information should be excised from otherwise releasable documents because the nominal public interest in it is easily outweighed by the employee's privacy interest. Additionally, all pre- and post-tax deductions, as well as the employee's net pay distribution must be redacted.

• The document from the Department of Finance and Administration entitled "Employee Disclosure Requirements/Restrictions Notice" (dated 4/23/2007): The employee's social security number must be redacted.

• The document from the Department of Finance and Administration entitled "Change in Employment Status" (dated 1/14/2007): The employee's social security number must be redacted.

In conclusion, the custodian's decision to disclose the records at issue is generally correct. But further redactions must be made in order for the release of the records to be consistent with the FOIA.

Sincerely,

Leslie Rutledge
Attorney General