Can DF&A release a state employee's name with the amount of her performance-review pay raise under the Arkansas FOIA?

Plain-English summary

Olivia Standridge, a state employee receiving correspondence through the DF&A Office of Personnel Management, asked the Attorney General whether DF&A could release her name with the amount of her pay raise tied to the 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 that DF&A's release was consistent with the FOIA. She enclosed a copy of Opinion 2018-093 (issued the same day to Angel Eddleman) for the substantive analysis and did not restate it.

The reasoning, in short: 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 disclosure would be "a clearly unwarranted invasion of personal privacy." Under the Arkansas Supreme Court's two-step balancing test in 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.

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 open. 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 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 reflects an evaluation result, but the AG treated it as a personnel record (the consequence of the evaluation), not an evaluation record itself. Op. Att'y Gen. 2013-066 had previously reached the same conclusion for merit raises.

Why this opinion is 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 analysis in each, the AG wrote it out fully in 2018-093 and referred the other five subjects to that opinion by enclosing a copy.

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

Could Standridge stop the release?

The opinion did not give Standridge a right to block the release. Section 25-19-105(c)(3)(B)(i) gives the subject of records the right to seek an AG opinion before release, but the AG's role is to opine on whether the custodian's planned action is consistent with the FOIA. Once the AG agreed with the custodian, the practical path remaining to the subject would be litigation in circuit court, not administrative blocking through the AG.

Did the AG analyze whether the underlying evaluation document itself was disclosable?

No. Section 25-19-105(c)(1)'s strict standard for releasing employee-evaluation records (suspension or termination, finality, compelling public interest) was not at issue, because DF&A planned to release only the dollar amount and the name, not the evaluation document. The opinion left the evaluation record fully protected.

Was a raise tied to a performance review treated differently from a raise tied to seniority or grade-step?

No. The opinion analyzed the raise amount under the personnel records framework regardless of the trigger for the raise. A merit raise is just one type of raise; the source of the increase did not change its FOIA classification.

What does this mean for state employees who don't want their pay public?

Under Arkansas FOIA precedent, public employee salary information is generally accessible to anyone who asks. The state employs salary transparency as a matter of public-records policy. There is no statutory carve-out for employees who personally object.

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. 2018-095
August 3, 2018
Olivia Standridge
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. Standridge:
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. 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