Can DF&A release a state Arkansas Health Center supervisor's name with the amount of his performance-review pay raise under the FOIA?

Plain-English summary

Jeffrey Santoff, a Carpentry/Paint/Lock Supervisor at the Arkansas Health Center Carpentry Shop in Benton, asked the Attorney General whether the Department of Finance and Administration could release his name with the amount of the pay raise he received under the state's new performance-review system. The procedural vehicle was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the subject of personnel or employee-evaluation records ask the AG whether a custodian's planned release is consistent with the FOIA.

Attorney General Leslie Rutledge concluded the planned release was consistent with the FOIA. Rather than restate the analysis, she referred Santoff to Opinion 2018-093 (issued the same day to a similarly situated state employee, Angel Eddleman), which she enclosed with this opinion.

The substantive reasoning: state employee salary information, including merit raise amounts, falls within the "personnel records" category under Ark. Code Ann. § 25-19-105(b)(12) and must be released unless doing so would be "a clearly unwarranted invasion of personal privacy." Under 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, public employee salary rarely rises to that level. And the raise amount itself is a personnel record, not an "employee evaluation or job performance record" under section 25-19-105(c)(1) and Thomas v. Hall, 2012 Ark. 66, because it is the result of an evaluation rather than the evaluation itself.

Santoff's particular concern, mirroring the other employees who received the same opinion that day, was that releasing the raise amount would effectively disclose his confidential performance review. The AG rejected that framing. The underlying evaluation document is separately protected; the dollar amount is a separate, public-facing piece of compensation data.

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., presumes public records are accessible unless an exception applies. Two exceptions can come up in personnel-file disputes:

• Personnel records exception (§ 25-19-105(b)(12)): personnel records are released unless disclosure would be "a clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test controls. Salary information has consistently been treated as a personnel record carrying minimal privacy interest.

• Employee-evaluation records exception (§ 25-19-105(c)(1)): records created by or at the employer's behest to evaluate the employee, detailing performance, are confidential unless four conditions are met (suspension or termination, finality, the records formed the basis for that decision, and a compelling public interest in disclosure).

A pay raise correlates with an evaluation result, but the AG treated it as a personnel record (the consequence of the evaluation) rather than an evaluation record itself. Op. Att'y Gen. 2013-066 had previously reached the same conclusion for merit raises.

Why this opinion looks so brief

The AG issued six near-identical opinions on August 3, 2018: Opinions 2018-093 through 2018-098: to six different state employees who all objected to the same DF&A release. Rather than reproduce the full analysis in each, the AG wrote out the analysis in 2018-093 (addressed to Angel Eddleman) and referred the other five subjects to that opinion by enclosing a copy. The brief format does not signal a different result; the conclusion in each opinion was the same.

For the substantive analysis, including the redaction list of items that must be removed before release (personal contact information, SSNs, medical info, etc.), see Opinion 2018-093.

Common questions

Why did Santoff get a separate opinion if it just points back to 2018-093?

Section 25-19-105(c)(3)(B)(i) gives the subject of records the right to seek an AG opinion. Each subject who exercised that right received a formal response, even when the underlying analysis was identical. The AG handled the volume by issuing a master opinion (2018-093) with a fully developed analysis, and short, individual opinions for the other five subjects.

Was Santoff's status as a non-DF&A employee relevant?

The AG did not treat the requester's job title or location as material. The DF&A's release covered every state employee that received a raise under the new performance-review system, so anyone receiving a covered raise had standing to object as a "subject" under section 25-19-105(c)(3)(B)(i). The legal analysis applied uniformly.

Is a $50 raise treated the same as a $5,000 raise under this analysis?

Yes. The opinion did not draw a privacy line based on amount. The classification of raise data as a personnel record, and the Young v. Rice balancing tipped toward disclosure, did not depend on the size of the raise.

What if a raise reveals an unflattering evaluation result?

The opinion considered and rejected this concern. The actual evaluation document remains confidential under section 25-19-105(c)(1). The fact that the raise reflects an underlying evaluation is not enough to convert the dollar amount into an evaluation record.

Citations

Ark. Code Ann. §§ 25-19-105(c)(3)(B)(i); 25-19-105(b)(12); 25-19-105(c)(1); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Op. Att'y Gen. 2018-093 (companion opinion containing the full analysis); Op. Att'y Gen. 2013-066.

Source

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

Original opinion text

Opinion No. 2018-094
August 3, 2018
Jeffrey Santoff
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Carpenter, Paint, Lock Supervisor
Arkansas Health Center Carpentry Shop
6701 Highway 67
Benton, AR 72015
Dear Mr. Santoff:
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 Department of Finance and Administration ("DF&A") has received a request for "the raise (amount) each state employee recently received following 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. Please see the enclosed Attorney General Opinion 2018-093, which explains the basis for this conclusion. I will not restate that explanation herein, but instead refer you to the enclosed opinion for the substantive analysis.

Sincerely,

LESLIE RUTLEDGE
Attorney General

— — — Enclosed Opinion No. 2018-093 — — —

Opinion No. 2018-093
August 3, 2018
Angel Eddleman
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