Under the Arkansas FOIA, can a city release a workplace harassment complaint and an exit interview as personnel records, and which redactions are required?

Plain-English summary

In October 2018, the City of Bryant received two Arkansas Freedom of Information Act requests. The first sought "all complaints filed against Ms. Dabbs by employees" (the AG opinion calls this the "Complaint"). The second sought a former employee's exit interview (the "Exit"). The records custodian's attorney, Richard "Chris" Madison, gave the documents (in both unredacted and redacted form) to Attorney General Leslie Rutledge and asked whether the custodian's decision to classify and release them as personnel records was consistent with the FOIA.

The AG's answer was: mostly yes, with some questions. Both documents qualified as personnel records of the people they pertained to, and personnel records must be released unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." The standard categories of personally identifying information (personal phone numbers, home addresses, personal email addresses, employee personnel numbers, marital status, dates of birth, Social Security numbers, medical information, undercover law-enforcement identifiers, driver's license numbers, insurance coverage, tax information and withholding, payroll deductions, and banking information) had to be redacted before release.

Beyond those routine redactions, the AG had concerns. Some of the redactions in both the Complaint and the Exit interview appeared to be names of other city employees whose names showed up only because they were performing routine job duties. Those names probably did not qualify as the redacted employees' personnel records at all, in which case there would be no privacy-balancing justification for redacting them. The AG also could not definitively endorse the redaction of the complaining employee's name. The custodian had relied on a prior AG opinion (2012-012) for the proposition that a subordinate complaining about a superior should be anonymized. The AG clarified that 2012-012 turned on its specific facts and is not a general rule. Whether to disclose or withhold the complainant's name is a fact-specific call for the custodian, weighing privacy against the public interest in knowing who raised concerns about a superior's conduct.

Finally, on page 6 of the Complaint, the AG flagged a paragraph containing significant personal information about the supervisor (Ms. Dabbs) that a court would likely view as a clearly unwarranted invasion of her privacy. That paragraph had to be redacted before release.

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

Arkansas's FOIA, codified at Ark. Code Ann. § 25-19-101 et seq., presumes public records are open. A document held by a public entity is presumptively a public record, defined in § 25-19-103(7)(A) as writings or other recorded information "required by law to be kept or otherwise kept" that constitute a record of the performance or lack of performance of official functions by a public official or employee.

Two FOIA exceptions matter most for employee files. The "personnel records" exception in § 25-19-105(b)(12) shields personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The "employee evaluation or job performance records" exception in § 25-19-105(c)(1) is narrower in different ways: those records are open only after final administrative resolution of a suspension or termination at which the records form the basis for the decision, and only if there is a compelling public interest in disclosure. Personnel and employee-evaluation records are mutually exclusive. The custodian must first decide which category a record falls into, then apply the appropriate test.

The Arkansas Supreme Court's leading decision on the personnel-records balancing test is Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Young set up a two-step inquiry. First, does the information rise to a "greater than de minimis" privacy interest? If not, the FOIA's pro-disclosure thumb on the scale wins. Second, if there is a real privacy interest, does the public's interest in disclosure outweigh it? Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), placed the burden of showing privacy outweighs disclosure on the person resisting release. The test is objective: the subject employee's own preference about disclosure does not control.

Section 25-19-105(c)(3)(B)(i) lets the custodian, the requester, or the subject of personnel or employee-evaluation records seek an AG opinion on whether the custodian's intended action is consistent with the FOIA. Madison, as the custodian's attorney, used that channel here.

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

What is the difference between a "personnel record" and an "employee evaluation or job performance record"?
The FOIA does not define "personnel records" but the AG has consistently said they are all records pertaining to individual employees other than employee-evaluation and job-performance records. Personnel records typically include applications, payroll information, transfer records, insurance forms, leave records, training certificates, disciplinary actions, and similar items. Employee-evaluation and job-performance records are records that detail the employee's performance or lack thereof, prepared by the employer to evaluate the employee.

Does the requester's identity or motive matter?
No. The personnel-records test is entirely objective. The custodian does not consider who the requester is or why they are asking when deciding whether disclosure would cause a clearly unwarranted invasion of personal privacy.

What happens if a custodian redacts something they should not have?
The requester can ask for review. Under § 25-19-105(c)(3)(B)(i) the custodian, requester, or subject can seek an AG opinion. The AG opinion is not binding but is highly persuasive. The requester can also sue under the FOIA's enforcement provisions to compel disclosure.

What was the issue with the redaction on page 6 of the complaint?
The AG flagged a paragraph containing significant personal information about the subject of the complaint (Ms. Dabbs, the supervisor) that the AG believed a court would view as a clearly unwarranted invasion of her privacy if released. That meant additional redaction was required, even though the rest of the complaint was generally disclosable.

Does Op. Att'y Gen. 2012-012 mean a complaining employee's name is always redacted?
No. The AG specifically clarified that 2012-012 turned on the particular facts presented in that case. It is not a general rule that subordinate complainants get anonymity in every case.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifier exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception, "clearly unwarranted invasion of personal privacy")
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information of public employees redaction requirement)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation or job performance records exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian / requester / subject right to seek AG opinion)
• Ark. Code Ann. § 25-19-105(f)(3) (redactions must indicate amount and location of deleted information)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test for "clearly unwarranted invasion of personal privacy")
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Ops. Att'y Gen. 2012-012, 2018-093, 2015-072, 2014-094, 2007-070, 2007-064, 2006-176, 2006-035, 2005-194, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-001, 97-368, 94-198, 94-391 (cited as authority on specific redaction categories and personnel-records definitions)
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 202-08 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2018-121
October 4, 2018
Richard "Chris" Madison, Esq.
Attorney at Law
210 S.W. 3rd Street
Bryant, AR 72022

Dear Mr. Madison:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, as the custodian's attorney, is made pursuant to 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 City of Bryant has received two FOIA requests from the same citizen for the following public records:

1. All complaints filed against Ms. Dabbs by employees (hereinafter "Complaint") and
2. The employment exit interview given by [a former employee] (hereinafter "Exit").

You have attached redacted and unredacted copies of the requested documents. The records custodian has determined that the complaint and exit interview are personnel records generally subject to disclosure under the FOIA. You ask whether these decisions are consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the records have, for the most part, been properly classified as personnel records that must be disclosed with redactions. But I question whether some redactions that have been made are warranted. I will set out all the definitions and standards and then apply them to the records you attached.

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 the City of Bryant, 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.

As I understand it, all of the documents you submitted for my review were created by city employees regarding their employment. As such, all the attached documents reflect the performance or lack of performance of official functions of both the employees creating or providing the particular record and the supervisor being complained about. Therefore, in my opinion, these documents 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. Because the relevant exception in this instance appears to be the one for personnel records, I will limit my discussion to records of that type.

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 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 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 number and photocopy of driver's license (Op. Att'y Gen. 2017-125, 2013-090);
• 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 an initial matter, you state in your request for my opinion that the records at issue are personnel records (although you do not make clear precisely whose personnel records they are). In my opinion, this classification decision is for the most part consistent with the FOIA. I believe the records qualify as the personnel records of the complainants and the person being complained about.

With respect to the "Exit" records by a former employee, it is my opinion that most of the redactions from those records are consistent with the FOIA. As stated above, certain items of personal information, such as personal addresses, Social Security numbers, dates of birth, and the like, must be redacted prior to a record's release. However, the former employee's employee number located on several of the records must also be redacted prior to the records' release.

I question, though, other redactions you have made in both the "Exit" and "Complaint" records. Some of those redactions look to be the names of other city employees whose names appear, from the face of the records, to be listed simply as part of their job duties or for other minor reasons. I cannot definitively opine on whether these redactions are consistent with the FOIA, as I am not in possession of all of the attendant facts and circumstances. But a proper analysis of records of this sort would aid in determining whether these records sufficiently pertain or relate to those other employees so as to qualify as their personnel records. If the records are not the personnel records of those employees, the balancing test discussed above is inapplicable, and there may be no clear basis for redacting those other employees' names.

Regarding the "Complaint," I concur with your decision that it is a personnel record of the employee who composed it. It is thus disclosable except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." In this regard, I cannot definitively opine on your decision to redact the author's name from the record. You point to one of my predecessor's opinions for your belief that the name of the subordinate employee complaining about a superior should be redacted for privacy reasons. That opinion, however, was issued in light of the very specific facts presented in that instance. It should not be read as support for a general proposition that the names of subordinate employees complaining about their superiors should always be redacted. The decision to disclose the identity of the complaining employee or withhold it as a clearly unwarranted invasion of personal privacy is one the custodian must make in the first instance in light of all of the relevant surrounding facts. I am unauthorized to undertake such fact-finding in the context of an opinion under the FOIA.

One final point regarding the "Complaint," on page 6 in the penultimate paragraph, there is considerable personal information regarding the superior that I believe a reviewing court would regard as a clearly unwarranted invasion of that person's personal privacy if disclosed. Accordingly, that information must be redacted prior to disclosure, in my opinion.

CONCLUSION

In sum, it is my opinion that the decision to classify the records as personnel records is for the most part consistent with the FOIA. As to the redactions made in the records labeled "Exit," additional information must be redacted, and I question whether some redactions that have been made are warranted. With respect to the records labeled "Complaint," again, there is certain information that must be redacted prior to the records' release, but I cannot definitively opine on the custodian's decision to withhold the complaining employee's name.

Sincerely,
Leslie Rutledge
Attorney General