Can the City of Little Rock release a Housing & Neighborhood Programs employee's ID photograph under FOIA over his objection?

Plain-English summary

Reginald DeGraftenreed, an employee of Little Rock's Housing & Neighborhood Programs, asked the Attorney General to review the City's decision to release his personnel file (including his city ID photograph) in response to a FOIA request. He objected to the photograph's release.

Attorney General Leslie Rutledge concluded that the photograph release was likely consistent with FOIA. The opinion incorporated by reference Op. 2018-125, which had addressed the same underlying FOIA request directed at a different city employee. The analysis is the same: records depicting public employees are generally subject to disclosure under the personnel-records test, and a requester's identity or motive is generally irrelevant under the objective Young v. Rice balancing test.

The City had also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." The AG treated those redactions as proper.

This opinion is one of three (with Ops. 2018-125 and 2018-129) addressing the same underlying FOIA request to the City of Little Rock for personnel files of multiple Housing & Neighborhood Programs employees.

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.

Why the photograph was releasable

The opinion incorporates the reasoning of Op. 2018-125. Under the personnel-records exemption at Ark. Code Ann. § 25-19-105(b)(12), records of public employees are releasable except where disclosure would constitute "a clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. The AG's office had repeatedly held that records depicting public employees in their employee capacity (including ID photographs) ordinarily do not meet that standard. Photographs document who serves in public roles, which speaks to FOIA's purpose.

The Young v. Rice test is objective. The subject's preference does not control. The requester's identity or motive is also generally irrelevant.

Common questions

Why is the analysis identical to Ops. 2018-129 and 2018-125?

All three opinions addressed the same FOIA request directed at multiple Little Rock Housing & Neighborhood Programs employees. Op. 2018-125 contained the master analysis; Ops. 2018-129 and 2018-130 incorporated it by reference because the substantive issues were the same.

Can a public agency release an employee's ID photograph under Arkansas FOIA?

Generally yes. Photographs of public employees in their employee capacity are personnel records that ordinarily do not rise above a de minimis privacy interest under Young v. Rice.

Does the requester's identity matter?

No. Under Arkansas FOIA, the requester's identity and motive are not part of the disclosure analysis.

What information must be redacted before release?

The City correctly determined to withhold address, date of birth, telephone number, and Social Security information. Those categories are protected by separate FOIA exemptions and AG-recognized rules.

Citations

Ark. Code Ann. § 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); prior AG opinions Op. Att'y Gen. 2018-125 (incorporated by reference), 2012-001, 2011-003, 2007-213, 2014-094.

Source

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

Original opinion text

Opinion No. 2018-130
October 11, 2018
Reginald DeGraftenreed
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Housing & Neighborhood Programs
c/o Sandy Edgar, HR Specialist
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Mr. DeGraftenreed:

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 City of Little Rock has received a request under the FOIA for your personnel file, including your city identification photograph. The custodian has determined that the requested records are personnel records that are releasable pursuant to the FOIA. The custodian has also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." You express concern about the release of your photograph.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I addressed the custodian's decision regarding the same FOIA request in Opinion No. 2018-125, which is enclosed for your review. This opinion addresses essentially the same objections you have raised. I concluded that the basis for objecting does not appear to be a legally sufficient reason to withhold the records.

I will not restate the entire analysis, which applies equally to your request for my opinion. But in sum, records depicting public employees are generally subject to disclosure under the test for personnel records. Accordingly, the custodian's decision to release your photograph is likely consistent with the FOIA. And the requester's identity or motive for making the request is generally irrelevant to whether a record must be released. That is because the test for the release of personnel records is entirely objective, meaning that the custodian does not consider the subjective motives or identity of the requester.

Please see the enclosed Opinion 2018-125 for the entire substantive analysis.

LESLIE RUTLEDGE
Attorney General
Enclosure

(The original opinion attached and reissued Op. Att'y Gen. 2018-125, which contains the full substantive FOIA analysis applied to the same request.)