When the Arkansas Real Estate Commission gets a FOIA request for an employee's personnel file, must the home address, personnel number, and APERS retirement ID be redacted?

Plain-English summary

This is the companion to Op. 2018-064. The Arkansas Real Estate Commission received a FOIA request for the personnel file of a different employee (Paula A. Rutledge). AREC's custodian classified the records as releasable personnel records, made some redactions, and prepared to disclose them. The records' subject asked AG Leslie Rutledge to review whether the proposed disclosure was consistent with the FOIA.

The AG reached the same general conclusion as in 2018-064: the records were properly classified, the public interest in disclosure was sufficient under Young v. Rice to support release, but specific additional redactions were needed.

The required additional redactions in this case:

• The home address appearing on a letter dated 11/10/17, a document entitled "Professional Summary," and a "Designation of Beneficiary" document. Public-employee home addresses are statutorily exempt under Ark. Code Ann. § 25-19-105(b)(13).
• The Personnel Number on the "Employee Master Data Form." Personnel numbers are exempt as personal identification numbers used for computer security under Ark. Code Ann. § 25-19-105(b)(11).
• The APERS ID number on a notice from the Arkansas Public Employees Retirement System (01/04/18). APERS ID numbers are exempt under Ark. Code Ann. § 24-4-1003, which protects "individual member's records which are kept for the purpose of compiling information for the member's retirement."

The substantive analysis is the same as Op. 2018-064: a personnel record is disclosable unless its disclosure would be a "clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12), with the Young v. Rice balancing test as the operating framework. Categorical statutory redactions for home address, computer-security identifiers, and retirement-system records apply on top of the balancing analysis.

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: What is APERS?
A: The Arkansas Public Employees Retirement System, the state retirement system for many public employees. Member records, including the APERS ID number, have a separate statutory privacy protection in Ark. Code Ann. § 24-4-1003.

Q: Why is the APERS ID exempt apart from the FOIA's general personnel-records exception?
A: Section 24-4-1003 specifically exempts "individual member's records which are kept for the purpose of compiling information for the member's retirement." That is a separate, stronger exemption than the general personnel-records balancing test. AG Op. 2005-202 applied it earlier.

Q: How are home addresses handled across personnel-record disclosures?
A: Mandatory redaction under Ark. Code Ann. § 25-19-105(b)(13). The exemption is categorical, not subject to balancing. The same applies to home phone, personal cell phone, and personal email.

Q: Why is "personnel number" treated as a computer-security identifier?
A: Modern HR systems typically use personnel numbers to authenticate access to employee records. Ark. Code Ann. § 25-19-105(b)(11) exempts personal identification numbers used for computer security functions. Disclosing the number could let a bad actor authenticate against the system as the employee.

Q: What is the relationship between this opinion and Op. 2018-064?
A: They were issued the same day (May 15, 2018) for two different AREC employees in response to closely related FOIA requests for personnel files. Both opinions apply the same framework. Op. 2018-064 had a broader set of additional redactions because the underlying records included payroll detail, retirement contribution detail, and tax information that the records here apparently did not.

Q: Is the records' subject's objection enough to stop disclosure?
A: No. The Young v. Rice test is objective. Stilley v. McBride puts the burden on the person resisting disclosure to show the privacy interest outweighs the public interest. The subjective view of the records' subject is not determinative.

Q: What does the AG mean by "personnel records" versus "employee evaluation records"?
A: Personnel records are essentially everything in an employee's file other than employer-created documents that detail the employee's job performance. Evaluation records (e.g., performance reviews) get a different, stricter test for disclosure under § 25-19-105(c)(1). The AG focuses on whichever bucket the records actually fit.

Background and statutory framework

Same as Op. 2018-064, with the addition of Ark. Code Ann. § 24-4-1003. The APERS-records exemption is one of several Arkansas-Code exemptions that operate on top of the FOIA's general personnel-records framework.

Citations and references

Statutes:

• Ark. Code Ann. § 24-4-1003 (APERS member records exemption)
• 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. 2005-202 (APERS records under § 24-4-1003)
• 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. 2006-035 (Social Security numbers)
• Op. Att'y Gen. 2007-025 (driver's license number)
• Op. Att'y Gen. 2004-167 (insurance coverage)
• Op. Att'y Gen. 2005-194, 2003-385 (tax information)
• Op. Att'y Gen. 98-126 (payroll deductions)
• 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. 2018-065
May 15, 2018

Paula A. Rutledge
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201

Dear Ms. Rutledge:

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 file. 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 some further redactions are necessary in order for the release of the records to be consistent with the FOIA.

[Standard FOIA framework discussion follows, including general standards for disclosure, the personnel-records exception, the Young v. Rice two-step balancing test, and the standard list of categories that must be redacted in any case.]

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.

In my opinion, however, the following additional information must be redacted in order for the release of the records to be consistent with the FOIA:

• Three of the documents contain the employee's home address (a letter dated 11/10/17, a document entitled "Professional Summary," and a document entitled "Designation of Beneficiary"). The address must be redacted. A public employee's personal contact information, including home address, is specifically exempt under the FOIA. (Ark. Code Ann. § 25-19-105(b)(13).)

• The document entitled "Employee Master Data Form" includes a "Personnel Number." This number presumably provides access to computerized data. It 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).)

• A notice from the Arkansas Public Retirement System (APERS) dated 01/04/18, includes an "APERS ID number." This number presumably is part of the records kept by APERS for the individual member's retirement. Accordingly, it must be redacted pursuant to Ark. Code Ann. § 24-4-1003 (Repl. 2014). This statute specifically exempts from public disclosure "individual member's records which are kept for the purpose of compiling information for the member's retirement . . . ."

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

Sincerely,

Leslie Rutledge
Attorney General