Does Arkansas FOIA require a city to release a public employee's hourly wage and salary history when the employee objects?

Plain-English summary

In October 2018, William Wade, an employee of the Little Rock city HR department, learned that someone had filed a FOIA request for "your current salary and salary history for 2018." The records custodian decided that information was part of Wade's personnel record and was releasable. Wade asked Attorney General Leslie Rutledge to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), but he did not point to any specific records or offer specific arguments for withholding. He just objected.

The AG sided with the custodian. Salary information is a personnel record under Arkansas FOIA. Personnel records must be released unless disclosure would constitute "a clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12). The AG has consistently said that release of salary information almost never meets that "clearly unwarranted" bar absent truly extraordinary circumstances. Wade did not present any. So the AG concluded the custodian's decision to classify Wade's salary information as a personnel record and to release it was consistent with the FOIA.

The opinion drew one important line. While gross salary information is releasable, the AG noted (citing earlier opinions) that an employee's tax information, withholding amounts, pre- and post-tax deductions, and net pay distribution should be withheld. So a custodian responding to a salary FOIA request should release wage rates and gross pay but redact the tax-and-deductions side of the paystub.

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 presumes public records are open. A document held by a public entity is presumptively a public record. Two FOIA exceptions matter most for employee files: the personnel-records exception in Ark. Code Ann. § 25-19-105(b)(12) and the employee-evaluation exception in § 25-19-105(c)(1). Salary information falls into the personnel-records bucket.

Under the personnel-records exception, the FOIA requires release unless disclosure would constitute "a clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court's two-step balancing test from Young v. Rice asks first whether the information rises above a de minimis privacy interest and, if it does, whether the public's interest in disclosure outweighs that privacy interest. The burden is on the person resisting disclosure. The test is objective: the subject employee's personal preference does not control.

The AG's office has built up a long line of opinions saying that public-employee salary information almost never satisfies the "clearly unwarranted" standard, because public salaries are paid by taxpayers and the public has a strong interest in knowing what its employees are being paid. That line of authority is what made Wade's submission a quick disposition. He did not articulate any extraordinary fact that would tip the Young v. Rice balance in his favor.

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. Wade used that channel as the subject.

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

Why does the AG say salary release rarely meets the "clearly unwarranted" bar?
Because public salaries are paid with taxpayer money. The public has a strong, well-recognized interest in knowing what public employees earn. Under Young v. Rice's balancing test, that public interest almost always outweighs a public employee's privacy interest in keeping the salary secret.

What kind of "extraordinary circumstances" might justify withholding salary?
The opinion does not enumerate a list. The standard is fact-specific. Documented credible personal-safety threats, undercover-officer status, and similar extreme situations would be candidates. The general unease many employees feel about coworkers knowing their pay is not extraordinary.

Why are tax withholding and deductions redacted?
Withholding amounts and deductions reveal personal choices about taxes, dependents, retirement contributions, healthcare coverage, and similar private financial decisions that go beyond the public's interest in knowing what taxpayer money is being paid out as compensation. The AG has consistently drawn this line. See Op. Att'y Gen. 2018-064.

Does the requester have to give a reason for the request?
No. Under Arkansas FOIA, the requester's identity and motive are irrelevant to whether a record must be released. The personnel-records test is objective.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception, "clearly unwarranted invasion of personal privacy")
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (right of custodian, requester, or subject to seek AG opinion)
• Op. Att'y Gen. 2018-121 (companion opinion on personnel-records definitions)
• Op. Att'y Gen. 2018-093 (salary information meets the definition of a personnel record)
• Op. Att'y Gen. 2018-064 (tax information, withholding amounts, deductions, and net pay should be withheld)
• Op. Att'y Gen. 2018-015 (release of salary information rarely meets the "clearly unwarranted" standard)
• Op. Att'y Gen. 2015-072 (definition of personnel records)
• Op. Att'y Gen. 99-147 (definition of personnel records)

Source

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

Original opinion text

Opinion No. 2018-122
October 5, 2018
William Wade
c/o Sandy Edgar, HR Specialist
Human Resources Department
Little Rock City Hall
500 West Markham
Little Rock, AR 72201

Dear Mr. Wade:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request 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 someone has requested "your current salary and salary history for 2018." The records custodian has determined that the requested information "is part of your personnel record and is releasable." You have requested an opinion from this office, but you have not referred to any specific documents or offered any specific objections or arguments concerning the release of your salary information.

RESPONSE

My statutory duty is to state whether the custodian's decisions are consistent with the FOIA. 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. You do not appear to dispute that the first two elements are met. You do appear to claim, however, that your salary information is, or should be, exempt from disclosure.

This office has consistently opined that an individual public employee's salary information must be evaluated under the provision of the FOIA applicable to "personnel records." The FOIA requires that personnel records be released unless doing so would constitute a "clearly unwarranted invasion of personal privacy." This office has also been consistent in stating that the release of salary information will rarely rise to meet the "clearly unwarranted" standard. This means, absent truly extraordinary circumstances, a public employee's salary information must be disclosed in response to a FOIA request. Moreover, your request for my opinion fails to offer any legally sufficient reason to withhold this information from disclosure.

Therefore, in my opinion, the custodian's decisions to classify your salary information as your personnel record and to release this information are consistent with the FOIA.

Sincerely,
Leslie Rutledge
Attorney General

(Footnote: While a public employee's gross salary information is subject to disclosure, this office has also consistently opined that the employee's tax information, such as withholding amounts, should be withheld, along with all pre- and post-tax deductions and the employee's net pay distribution. See Op. Att'y Gen. 2018-064.)