Can a custodian release only employment dates, salary, and position in response to an Arkansas FOIA request for personnel records?

Plain-English summary

Robin Gifford filed a FOIA request with the Arkansas Military Department for records about the termination of a particular person's employment from the CSTP program. The Department's custodian decided that release was limited to dates of employment, salary, and position on staff. Anything more, the custodian said, would be a clearly unwarranted invasion of personal privacy with no compelling public interest in disclosure. Gifford asked the AG whether that decision was consistent with FOIA.

The AG could not directly answer the question. The AG never sees the underlying records, only the custodian's letter. So the opinion did the next best thing: it set out the legal framework the custodian had to apply and flagged one piece of doctrine that did not seem to be reflected in the custodian's response.

The framework is the standard one for employee records under Arkansas FOIA. There are two relevant exceptions, and they cover different territory. Personnel records under Ark. Code Ann. § 25-19-105(b)(12) are open unless release would be a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. Employee-evaluation records under § 25-19-105(c)(1) are closed unless the employee was suspended or terminated, the proceeding is final, the records formed a basis for that decision, and there is a compelling public interest in disclosure. The custodian must first classify the responsive record under one of these definitions, then apply the appropriate test. Even when a record is releasable as a whole, individual items still get redacted: home addresses, personal phone numbers, social security numbers, dates of birth, banking information, and so on.

The opinion also flagged a rule that is sometimes overlooked: the identity and motive of the requester are generally irrelevant. The custodian cannot decide whether to release a record based on what they think the requester plans to do with it. The test is objective. If the record meets the disclosure standard, it is released regardless of who is asking or why.

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 FOIA, Ark. Code Ann. § 25-19-101 et seq., presumes records held by public entities are open. Section 25-19-105(c)(3)(B)(i) lets the custodian, the requester, or the subject of personnel or evaluation records ask the AG for an opinion on whether the custodian's decision is consistent with the FOIA.

The two statutory exceptions for employment-related records work in opposite directions. Personnel records, defined by AG opinions to mean any records pertaining to individual employees other than evaluation or job-performance records, are open under § 25-19-105(b)(12) with one carve-out: privacy. The Arkansas Supreme Court in Young v. Rice set the test. The custodian asks whether the privacy interest is more than de minimis. If so, the custodian weighs that privacy interest against the public's interest in disclosure, with the scale tipped toward disclosure and the burden on the party resisting release per Stilley v. McBride.

Employee-evaluation records work differently. Under Thomas v. Hall, evaluation records are records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance on the job. Once a record qualifies, § 25-19-105(c)(1) closes it unless all four release conditions are met: suspension or termination, finality of the proceeding, basis for the discipline, and compelling public interest.

A separate set of categorical redactions applies regardless of which exception is involved. Home addresses, personal email and phone numbers, marital status and dependent information, dates of birth, social security numbers, medical information, undercover officer identifiers under § 25-19-105(b)(10), driver's license number, insurance coverage, tax withholding, payroll deductions, and banking information all get pulled before release.

The structural reason the requester's motive does not matter, set out in Stilley v. McBride and consistent AG opinions, is that the FOIA test is objective. A record's status under FOIA is a property of the record, not of the request. If the record is releasable, it is releasable to anyone.

Common questions

Did the AG rule that the Military Department had to release more than employment dates, salary, and position?

No. The AG could not see the records, so the opinion did not endorse or reject the specific scope of the release. It explained the framework, flagged that classification as personnel-versus-evaluation records mattered, and reminded the custodian that the requester's motive should not factor in.

Are the employment dates, salary, and position always releasable for a public employee?

In practice, those three items have consistently been treated as releasable across AG opinions on FOIA personnel records. They reflect the public's interest in knowing who is employed by a public entity, in what role, and at what cost. They are not categorically protected by the redaction list.

Why does the requester's motive not matter under Arkansas FOIA?

Per a long line of AG opinions and Stilley v. McBride, the test for whether a record must be released is objective. The custodian cannot consider the requester's subjective reasons for asking. If the record is releasable under the applicable test, it is releasable regardless of who is asking.

What is the difference between a "personnel record" and an "employee-evaluation record"?

Personnel records are any records pertaining to individual employees other than evaluation or job-performance records. Evaluation records are records created by or at the employer's behest to evaluate the employee, detailing performance on the job. The two categories are mutually exclusive. Personnel records are open with privacy redactions; evaluation records are closed unless suspension or termination has occurred and several other conditions are met.

What gets redacted from a releasable personnel record?

Personal contact information of public employees (home address, personal phone, personal email), employee personnel number, marital status, dependent information, dates of birth, social security numbers, medical information, identifying information for certain undercover law enforcement officers, driver's license number and photocopy, insurance coverage, tax withholding, payroll deductions, and banking information. The list is grounded in § 25-19-105(b)(10) and (b)(13) plus a stack of AG opinions interpreting what the privacy carve-out covers as a categorical matter.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; AG Ops. 2017-125, 2016-055, 2015-072, 2014-094, 2013-090, 2012-014, 2011-107, 2010-044, 2009-067, 2008-065, 2008-004, 2007-225, 2007-070, 2007-064, 2006-176, 2006-038, 2006-035, 2005-194, 2005-030, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2003-073, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-006, 98-001, 97-368, 97-222, 96-168, 95-351, 94-306, 94-198, 93-055; John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017).

Source

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

Original opinion text

Opinion No. 2018-139
November 19, 2018

Robin Gifford
2560 Krystal Kreek Drive
Conway, AR 72032

Dear Ms. Gifford:

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 you have made a FOIA request to the Arkansas Military Department ("Department") for copies of public records regarding "the termination of employment" of a particular person "from the CSTP program." The custodian of the records has determined that "the information releasable under this FOIA request is limited to dates of employment, salary and position on staff." The custodian has stated that "[a]ll other records requested for review or copying would constitute a clearly unwarranted invasion of [the individual's] personal privacy and there is no compelling public interest in their disclosure." You ask whether this decision is consistent with the FOIA.

RESPONSE

Based on the Department's response to your FOIA request, it appears the Department has determined that records responsive to your request are personnel records, and that release is limited to "dates of employment, salary, and position on staff." Because I have not seen any records that would be responsive to your FOIA request, I cannot opine about the releasability of any specific document or the need to redact any specific piece of information from an otherwise releasable record. But I can state that the identity or motive of the person making a FOIA request is generally irrelevant to the question whether a record must be released under the FOIA.

I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 Arkansas Military Department, 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 …."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

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 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).

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).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information. 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.

As noted above, the custodian must first properly classify the records based on the above definitions. Based on the limited information before me, it appears the records custodian has classified the records that are responsive to your FOIA request as "personnel records." I cannot definitively opine on that decision. Nor can I opine on the custodian's decision that release of the records at issue is limited to dates of employment, salary, and position on staff. I have not reviewed the records in question, and I have no other information regarding the factual basis for the custodian's decision. I consequently cannot opine about the release of any specific document or the need to redact any specific piece of information from any otherwise releasable document.

I can only note, generally, that records involving public employees can qualify as either personnel records or evaluation records, depending upon the particular record and the particular circumstances surrounding the record's creation. The custodian must properly classify the responsive records and apply the applicable test for disclosure, as discussed above. I can also state that the identity or motive of the person making a FOIA request is generally irrelevant to the question whether a record must be released under the FOIA. As stated above, the test for the release of employee-related records is an objective one, meaning that the custodian's analysis cannot be based on or influenced by a requester's subjective motive or reasons.

Sincerely,
LESLIE RUTLEDGE
Attorney General