Should an Arkansas school district release a sexual harassment complainant's personnel records under the FOIA, and must the complainant's name be redacted?

Plain-English summary

The Fayetteville Public School District received a FOIA request for records connected to the termination of its superintendent. Among the responsive records was a sexual harassment complaint statement filed by a school employee against the superintendent. The complainant's attorney, Suzanne G. Clark, asked AG Leslie Rutledge whether the district's decision to release the complaint statement (with the complainant's name un-redacted by the custodian, though a third party had redacted the name on the copy provided to the AG) was consistent with the Arkansas FOIA.

The AG concluded:

1. The complaint statement is a disclosable personnel record. The custodian properly classified it as the complainant's personnel record. Public-employee complaints are typically the personnel records of the complainant.
2. The complainant's name should be redacted. In a sexual harassment context, the privacy interest in keeping the complainant's identity confidential is "very high," because disclosure could expose the complainant to humiliation and retaliation. Under the Young v. Rice balancing test, that privacy interest outweighs the public's interest in knowing the complainant's identity (though it does not outweigh the public's interest in knowing the substance of the conduct that led to the superintendent's termination).
3. For other records that the AG had not reviewed, the same analysis applies. The custodian must classify each responsive record, then run the balancing test for each piece of personally identifying information.

The opinion is grounded in the FOIA's "clearly unwarranted invasion of personal privacy" carve-out at Ark. Code Ann. § 25-19-105(b)(12), and on Young v. Rice's two-step balancing test (de minimis privacy interest first; if greater than de minimis, weigh against public interest in disclosure). The AG also lists the categories of personal information that should be routinely redacted from public-employee personnel records.

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: Are public employees' personnel files always public under the FOIA?
A: Personnel records are subject to disclosure unless the disclosure would be a "clearly unwarranted invasion of personal privacy." That phrase is the gating test from Ark. Code Ann. § 25-19-105(b)(12). The custodian has to classify the record and apply the balancing test before deciding what to release.

Q: How is "personnel record" different from "employee evaluation record"?
A: Personnel records are records about individual employees that are not evaluations. Employee evaluation records are documents created by the employer to assess employee performance. The two get different disclosure tests. Evaluation records are open only after final administrative resolution of a suspension or termination at which they form a basis for the decision, and only if there is a compelling public interest in disclosure.

Q: What is the Young v. Rice test?
A: A two-step balancing test. First, ask whether the information is of a personal or intimate nature giving rise to a greater than de minimis privacy interest. If only de minimis, the FOIA's thumb on the scale favoring disclosure wins. If more than de minimis, weigh the privacy interest against the public's interest in disclosure. The person resisting disclosure carries the burden.

Q: Why did the AG say the complainant's privacy interest was "very high"?
A: Because the complaint involved sexual harassment, a topic the AG identified as carrying a particularly strong privacy interest. The complainant's attorney described the disclosure as causing "extreme embarrassment and humiliation," which the AG treated as more than rhetoric in this context.

Q: What about the public interest in the underlying conduct?
A: The AG said the public has a strong interest in knowing the details of the improper conduct that led to the superintendent's termination. That interest can be served by disclosing the complaint statement while redacting the complainant's identity and any other personally identifying information.

Q: What categories of information get routinely redacted from disclosed personnel records?
A: The AG listed: personal contact information (home address, personal phone, personal email per Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital and dependent information; date of birth; Social Security number; medical information; identifying information for undercover law enforcement officers (Ark. Code Ann. § 25-19-105(b)(10)); driver's license number; insurance coverage; tax information or withholding; payroll deductions; and banking information.

Q: Is the subject's own opinion about embarrassment relevant?
A: Not directly. Stilley v. McBride and a line of AG opinions hold that the test is objective. The mere fact that the records' subject considers the release embarrassing does not by itself prevent disclosure. The custodian and reviewing AG apply an objective balancing test against the case law.

Q: Why did the AG decline to opine on records he had not seen?
A: The Attorney General cannot act as a fact-finder. Whether a particular record is a disclosable personnel record, an evaluation record, or contains specific information that should be redacted is a question of fact that turns on the document's content. The AG's role under § 25-19-105(c)(3)(B)(i) is to review the records actually presented and opine on the custodian's decision.

Background and statutory framework

The Arkansas FOIA, codified at Ark. Code Ann. § 25-19-101 et seq., provides a strong default of public access to records held by entities subject to the act. The exceptions in § 25-19-105(b) and (c) carve out specific categories of confidential or sensitive records.

For personnel records, § 25-19-105(b)(12) creates a non-disclosure exception "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The phrase has not been defined by statute, so the Arkansas Supreme Court built the Young v. Rice balancing test to operationalize it.

For employee evaluation records, § 25-19-105(c)(1) creates a tighter exception: those records open only after final administrative resolution of any suspension or termination proceeding that relied on them, and only if there is a compelling public interest in disclosure. Thomas v. Hall defines an evaluation record as one (1) created by or at the behest of the employer, (2) used to evaluate the employee, and (3) detailing the employee's performance or lack of performance.

Section 25-19-105(c)(3)(B)(i) lets the custodian, the requester, or the subject of personnel or 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.

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)(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) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee evaluation record)

Other authority:

• John J. Watkins, Richard J. Peltz-Steele, & Robert Steinbuch, The Arkansas Freedom of Information Act 202-208 (Ark. Law Press, 6th ed. 2017)

Prior AG opinions referenced:

• Op. Att'y Gen. 2010-044 (presumption that public-entity records are public)
• Op. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Op. Att'y Gen. 2016-095, 2014-122 (employee complaints as complainant's personnel records)
• Op. Att'y Gen. 2015-129 (privacy interest in sexual harassment complaint)
• Op. Att'y Gen. 2014-094, 2007-070 (employee personnel number redaction)
• Op. Att'y Gen. 2001-080 (marital status and dependent information)
• Op. Att'y Gen. 2007-064 (date of birth)
• Op. Att'y Gen. 2006-035, 2003-153 (Social Security numbers and medical information)
• 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 and withholding)
• Op. Att'y Gen. 98-126 (payroll deductions)
• Op. Att'y Gen. 2005-194 (banking information)
• Op. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective test for invasion of privacy)
• Op. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001 (factual nature of the inquiry)

Source

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

Original opinion text

Opinion No. 2018-083
July 9, 2018

Suzanne G. Clark, Esq.
Clark Law Firm, PLLC
244 West Dickson Street, Suite 201
Fayetteville, AR 72702-6380

Dear Ms. Clark:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the records, 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 Fayetteville Public School District ("FPSD" or "the District") received a request under the FOIA for records stemming from the termination of the District's superintendent. The FPSD records custodian has determined that some of the requested records constitute the personnel records of your client who you claim is a victim of sexual harassment. Your request goes on to state that the disclosure of the records at issue would subject your client to "extreme embarrassment and humiliation." As such, you assert that the requested records pertaining to your client should be exempt from disclosure as a "clearly unwarranted invasion of personal privacy," pursuant to Ark. Code Ann. § 25-19-105(b)(12). You ask whether the custodian's decision to release your client's personnel records in this regard is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. The only record that has been presented for my review is your client's complaint statement against the former superintendent, with your client's name redacted. In my opinion, the custodian properly classified this document as your client's personnel record that is subject to disclosure. However, as I will discuss below, it is my opinion that the disclosure of your client's name would "constitute a clearly unwarranted invasion of personal privacy" and should be redacted from the record.

Additionally, I take it from your client's request for my opinion that the District has other records that it has classified as your client's personnel records and intends to release. Because you have not provided me with any other records involving your client that FPSD has deemed responsive to the FOIA requests, I cannot definitively opine as to whether any of those documents is exempt from disclosure or whether any discrete information from such records should be redacted. Accordingly, with respect to those documents, I can only set out the legal standards the custodian must apply to determine whether certain employee-related records should be disclosed. As I will explain, it is the custodian's responsibility in the first instance to properly classify all responsive records and apply the applicable test for disclosure.

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 to be met in this instance. The request was made to FPSD, which is a public entity subject to the FOIA. Moreover, the request appears to pertain to public records. The FOIA defines "public records" as "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or [are] otherwise kept, and which constitute a record of the performance or lack of performance of official functions . . . carried out by a public official or employee . . . ."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. The custodian appears to have determined that they are public records. The one record that was provided to me clearly meets the statutory definition of a "public record." As to the other records in question, I cannot definitively opine as to the custodian's determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude their disclosure.

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.

According to the notice the District's counsel provided to your client, the custodian has determined that the records at issue are your client's personnel records. Thus the relevant exemption in this instance is the one for personnel records. I will therefore limit my discussion to the test for disclosure relating to those types of records.

The FOIA does not define the term "personnel records." 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 also 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.

Moreover, exemptions to the FOIA must be narrowly construed. Therefore, the person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. The mere fact that the subject of a records request may consider their release an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. Whether any particular personnel record's release constitutes 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. Information 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));
• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• 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 (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 2005-194).

III. Application.

As mentioned above, in the course of preparing this opinion, I have reviewed only one of what I have been led to believe are a number of records involving your client. That one record you provided me is your client's complaint statement against the former FPSD superintendent, with your client's name having been redacted. However, it is my understanding that the records custodian did not make that redaction, but rather that redaction was made by a third party.

Nevertheless, it is my opinion that the custodian has 1) properly classified the record as your client's personnel record, and 2) properly determined that it must be disclosed. As a personnel record, your client's identity ordinarily would be disclosed unless to do so would constitute a "clearly unwarranted invasion" of personal privacy.

The first step in assessing whether that is the case here is for the custodian to identify and weigh any privacy interests at stake, bearing in mind all of the relevant facts. Given the highly sensitive nature of your client's assertion as being a victim of sexual harassment by a superior, I believe that a court would find a very high privacy interest. However, I believe that a court would also find that the public has a strong interest in knowing the details of the improper conduct that gave rise to the complaint and the superintendent's subsequent termination. In my opinion, these competing interests can be satisfied by disclosing the complaint statement while redacting your client's identity and any other potentially identifying information.

With respect to the records at issue that were not provided to me with your request for my opinion and that I have not reviewed, I cannot definitively opine in this opinion on whether the custodian's decisions with respect to those records are consistent with the FOIA. But I can state that, as with your client's complaint statement, the custodian must consider in the first instance whether disclosure of the records or of discrete information contained within the records would constitute a clearly unwarranted invasion of your client's personal privacy.

Sincerely,

Leslie Rutledge
Attorney General