Can Arkansas DF&A release the names and pay raise amounts of state employees who got raises under the new performance review system in response to a FOIA request?

Plain-English summary

Angel Eddleman, a state employee, asked the Attorney General whether the Arkansas Department of Finance and Administration could release her name and the amount of the pay raise she received under the state's new performance-review system, in response to a Freedom of Information Act request. The procedural vehicle was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the custodian, the requester, or the subject of personnel or employee-evaluation records seek an AG opinion on whether the custodian's planned release is consistent with the FOIA.

The DF&A's plan was to release "the first and last name of every state employee that received a raise (associated with performance review) along with the amount." Eddleman objected, arguing that disclosing the raise amount alongside her name effectively disclosed her confidential performance evaluation.

Attorney General Leslie Rutledge concluded that the planned release was consistent with the Arkansas FOIA. Two analytical steps drove the result.

First, the FOIA opens public records to inspection unless an exception applies. State employee salary information falls within the "personnel records" category under Ark. Code Ann. § 25-19-105(b)(12), which means it must be released unless disclosure would be "a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's two-step balancing test from Young v. Rice, 308 Ark. 593 (1992), with the scale tipped in favor of disclosure, controls that determination. The AG observed, consistent with prior opinions, that the release of public employees' names and salary information rarely rises to the level of a clearly unwarranted invasion of personal privacy.

Second, the raise amount was a personnel record, not a confidential employee-evaluation record. The "employee evaluation or job performance records" exception under section 25-19-105(c)(1) covers 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," following the Arkansas Supreme Court's adoption of that test in Thomas v. Hall, 2012 Ark. 66. A raise amount, like a bonus, is the result of an evaluation rather than the evaluation itself. The AG had previously taken this same position in Op. Att'y Gen. 2013-066 (merit raise amount is a personnel record, not an employee-evaluation record) and Op. Att'y Gen. 2007-070 (state-maintained database of salary and bonus information is a personnel record).

Even though the raise amount indirectly signals that the employee satisfied some performance criteria, the underlying evaluation that produced the raise remains protected separately under the employee-evaluation exception. Releasing the dollar amount does not release the evaluation.

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.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., is a strong open-records law that presumes public records are accessible. Three elements must be met for release: the request must go to a covered entity, the document must be a public record, and no exception must apply. The first two were not in dispute.

The two relevant exceptions are mutually exclusive in their treatment but can both arise in personnel-file disputes:

• Personnel records exception (Ark. Code Ann. § 25-19-105(b)(12)): personnel records are released to the public except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The phrase has been interpreted by the Arkansas Supreme Court in Young v. Rice using a balancing test, applied in two steps. First, the custodian asks whether the information is of a personal or intimate nature creating a greater than de minimis privacy interest. Second, if it is, the custodian weighs that interest against the public's interest in disclosure, with a thumb on the scale favoring release. The burden of proving privacy outweighs disclosure rests on the person resisting release (Stilley v. McBride, 332 Ark. 306).

• Employee-evaluation records exception (Ark. Code Ann. § 25-19-105(c)(1)): records created by or at the employer's behest, to evaluate the employee, that detail performance, are confidential unless four conditions are all met: (1) the employee was suspended or terminated, (2) there is a final administrative resolution of that proceeding, (3) the records formed a basis for the suspension or termination, and (4) there is a compelling public interest in disclosure. The standard for disclosing an evaluation record is much higher than for a personnel record.

Salary information has consistently been classified as a personnel record. Once the personnel records exception applies, the analysis is the Young v. Rice balancing test, and Arkansas precedent treats public employee salary as carrying minimal privacy interest. The fact that release reveals the financial fact of public employment does not satisfy the "clearly unwarranted invasion" standard.

Items that must be redacted from a personnel record before release

Even when a personnel record is releasable as a whole, certain discrete data points must be redacted. The opinion lists the redaction set:

• Personal contact information (home telephone, personal email, home address) under section 25-19-105(b)(13)
• Employee personnel number (Op. Att'y Gen. 2014-094, 2007-070)
• Marital status and dependent information (Op. Att'y Gen. 2001-080)
• Date of birth (Op. Att'y Gen. 2007-064)
• Social Security number (Op. Att'y Gen. 2006-035, 2003-153)
• Medical information (Op. Att'y Gen. 2003-153)
• Identifying information of certain undercover law enforcement officers (section 25-19-105(b)(10))
• Driver's license number (Op. Att'y Gen. 2007-025)
• Insurance coverage (Op. Att'y Gen. 2004-167)
• Tax information or withholding (Op. Att'y Gen. 2005-194, 2003-385)
• Payroll deductions (Op. Att'y Gen. 98-126)
• Banking information (Op. Att'y Gen. 2005-194)

The records DF&A planned to release (first and last name plus raise amount) did not include any of those discrete items.

Common questions

Was the AG saying every state employee salary is fully public?

Yes, with limited carve-outs. Salary, raise amounts, bonus amounts, and similar pay information are personnel records under the FOIA, and the public's interest in tracking how tax dollars are spent on public employee compensation outweighs an employee's privacy interest in keeping that compensation private.

Did the requester need a reason to ask?

No. Under the Arkansas FOIA, requesters do not need to show purpose or interest. The custodian must release public records that are not exempt, regardless of the requester's motive.

What if releasing my raise amount tells everyone how I was rated?

The opinion acknowledged this concern and rejected it as a basis for non-disclosure. A raise correlates with an evaluation, but the underlying evaluation document itself remains confidential under section 25-19-105(c)(1). The AG treated the raise amount as the result of, not equivalent to, the evaluation.

Could a custodian refuse to release names but release just the raise amounts?

The opinion did not directly address that hypothetical. But under the personnel records exception, the question would be whether redacting names changes the privacy/public-interest balance. Names of public employees are typically public, so combining the name with the raise amount usually does not move the needle.

What was the procedural posture of this opinion?

It was a section 25-19-105(c)(3)(B)(i) opinion, in which the AG advises whether the custodian's planned action is consistent with the FOIA. The AG's role here is statutory, not adjudicative. A custodian, requester, or subject of records can ask for one before the records are actually released.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(10), (b)(12), (b)(13); 25-19-105(c)(1), (c)(3)(B)(i); 25-19-106(b)(12); 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; Ops. Att'y Gen. 2017-038, 2016-055, 2015-072, 2015-016, 2014-094, 2013-066, 2011-098, 2011-045, 2010-044, 2009-067, 2008-065, 2008-004, 2007-225, 2007-070, 2007-064, 2007-025, 2006-176, 2006-038, 2006-035, 2005-194, 2005-030, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2003-073, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-006, 98-001, 97-368, 97-222, 96-168, 95-351, 94-306, 94-198, 93-055; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Source

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

Original opinion text

Opinion No. 2018-093
August 3, 2018
Angel Eddleman
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Kay Barnhill Terry, Administrator
DF&A Office of Personnel Management
1509 West 7th Street, #201
Little Rock, AR 72201
Dear Ms. Eddleman:
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 Department of Finance and Administration ("DF&A") has received a request for "the raise (amount) each state employee recently received following the implementation of the new performance review system." DF&A has determined that the requested records are subject to release under the FOIA, and it plans to release "the first and last name of every state employee that received a raise (associated with performance review) along with the amount." You object to the release of names in conjunction with the amount of raise and express concern that by sharing the raise information, DF&A is sharing confidential performance evaluations.

RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the custodian's decision to release the requested raise information is consistent with the FOIA.

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 seem to be met. The request was made to DF&A, which is a public entity, subject to the FOIA. 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 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

Therefore, in my opinion, the requested records 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));
• 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).

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).

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.

Individual employees' salary information — including raises (amounts thereof) — meets the definition of a "personnel record." Accordingly, the FOIA requires that it be released unless doing so constitutes a "clearly unwarranted invasion of personal privacy." As this office has consistently explained, the release of public employees' names and salary information will rarely rise to the level of such an invasion. Therefore, these kinds of records generally must be released.

As for your concern that DF&A would be sharing confidential performance evaluations by releasing this salary information, it is my opinion that the raise information is properly characterized as a personnel record, not an employee-evaluation record. Like a bonus or promotion, the raise rewards the employee for a certain level of performance. It is the result of an evaluation that is presumably recorded in distinct "employee evaluation or job performance records." I recognize that the raise information reflects the fact that the employee satisfied some performance evaluation standards and received a pay increase that correlates in some way to performance. But as this office has previously noted regarding similar pay raises, the raise information is not itself an employee evaluation.

It is therefore my opinion, in conclusion, that the custodian's decision to release the requested raise information is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General