Can a city release a former employee's ID photograph and personnel file under FOIA over the employee's objection?

Plain-English summary

A FOIA requester asked the City of Little Rock for the personnel file of Brittany Henderson, a former city employee, including the employee's city ID photograph. The records custodian determined that the file was a personnel record, that it should be released, and that "no information like address, date of birth, telephone number or social security information is releasable." Henderson objected, saying the request was an invasion of her privacy.

Attorney General Leslie Rutledge declined to opine on any specific document because she had not seen the records, but she explained the legal framework and reached a conditional answer: the photograph release was likely consistent with FOIA because the AG's office had repeatedly held that records depicting public employees are generally subject to disclosure. The custodian's plan to withhold the personal contact information and Social Security number was correct, though the AG noted that those categories are protected by the more specific personal-contact-information exemption (Ark. Code Ann. § 25-19-105(b)(13)) rather than only by the general personnel-records balancing test.

Two practical points stood out. First, the requester's identity or motive is generally irrelevant under FOIA. Second, the records' subject can dislike the release as much as she wants; the test under Young v. Rice is objective, focused on whether release would shed light on the workings of government for the general public.

Currency note

This opinion was issued in 2019. 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 divides items typically found in personnel files into two exemption categories:

• Personnel records under Ark. Code Ann. § 25-19-105(b)(12): releasable except where disclosure would constitute "a clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test.
• Employee evaluation or job performance records under § 25-19-105(c)(1): releasable only where the employee was suspended or terminated, the records formed the basis of that decision, the proceeding has reached final resolution, and there is a compelling public interest.

A separate exemption, § 25-19-105(b)(13), categorically protects "personal contact information including … home addresses" of nonelected municipal employees and certain other public employees. Combined with discrete protections for items such as Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153) and dates of birth (Op. Att'y Gen. 2007-064), this provides the floor of what custodians must always redact.

Why employee ID photographs are usually releasable

The opinion drew on a line of prior AG opinions, including Ops. Att'y Gen. 2012-001, 2011-003, and 2007-213, holding that records depicting public employees ordinarily are subject to disclosure under the personnel-records test. Photographs of employees, in their capacity as employees, do not generally rise above a de minimis privacy interest under Young v. Rice. The image documents who serves in a public role: directly relevant to FOIA's purpose.

The opinion also reiterated the rule about requester identity and motive: under Arkansas FOIA, a requester's identity or motive for making a request is generally irrelevant to whether records must be released. The relevant question is whether the records, viewed objectively, shed light on the workings of government for the general public. Op. Att'y Gen. 2014-094 cites the rule that "neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester."

Why the AG was careful about saying "likely"

The opinion was hedged because the AG had not seen the actual records. Custodians have to do the work case by case. The AG's job under § 25-19-105(c)(3)(B)(i) is to opine on whether the custodian's decision is consistent with FOIA, not to be a substitute fact-finder. The opinion described the standards, gave the general view that photographs of public employees are usually releasable, and left the specific decision to the custodian on the actual record.

The opinion also acknowledged a remedy point. If Henderson believed her photo's release would cause real harm, "[s]ome judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy." That is a recognition that the AG's review is limited and that fact-intensive privacy claims belong in court.

Common questions

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

The opinion concluded that yes, generally photographs depicting public employees are releasable under the personnel-records test. The custodian still has to apply the test on each record.

Does it matter who is asking for the photograph?

Generally, no. The requester's identity and motive are not part of the FOIA analysis under Arkansas law. The question is whether release would shed light on the workings of government for the general public.

What about the employee's date of birth, address, phone number, or Social Security number?

Those are categorically withheld. Home addresses are protected under § 25-19-105(b)(13). Date of birth (Op. Att'y Gen. 2007-064) and Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153) are protected by separate AG-recognized rules.

Can a former employee block the release of their personnel file?

The opinion concluded that the employee's objection alone is not sufficient. The Young v. Rice test is objective: the custodian weighs the public's interest in disclosure against an objectively measured privacy interest, not how the subject feels about disclosure.

What if the employee thinks the records contain inaccurate information?

The AG's office cannot adjust FOIA analysis based on accuracy claims. The opinion acknowledges that some judicial remedy may be available to the subject in court, but the FOIA analysis itself does not weigh accuracy.

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, 313, 965 S.W.2d 125, 128 (1998); prior AG opinions cited include 2012-001, 2011-003, 2007-213, 2014-094, 2012-014, 2011-107, 2018-087, 2018-061, 2010-044, 2015-072, 99-147, 2014-094, 2007-070, 2001-080, 2007-064, 2006-035, 2003-153, 2017-125, 2013-090, 2004-167, 2005-194, 2003-385, 98-126, 2016-055, 2001-112, 2001-022, 94-198, 2006-176, 2004-260, 2003-336, and 98-001.

Source

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

Original opinion text

Opinion No. 2019-009
January 28, 2019
Brittany Henderson
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Sandy Edgar, HR Specialist/FOIA Coordinator
Little Rock Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Ms. Henderson:

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 object to the release of your file and photograph to the person who has submitted the FOIA request. You express concern that this request "is an invasion on [your] personal privacy."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that the custodian deemed responsive to the request for your personnel file, I cannot opine on the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. But I will explain the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. In this regard, this office has consistently opined that records depicting public employees are generally subject to disclosure under the test for personnel records. Thus, in my opinion, the custodian's decision to release your photograph is likely consistent with the FOIA.

Additionally, 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 an objective one, meaning that the custodian does not consider the subjective motives or identity of the requester.

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 Little Rock, 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.

In my opinion, the exemption that is primarily relevant in addressing the requested records at issue is the one for "personnel records." Accordingly, 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 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.

Because I have not seen any records that are responsive to the request for your personnel file, I cannot specifically opine on whether the custodian's decision is consistent with the FOIA. The custodian must properly classify the responsive records based on the above definitions and apply the appropriate disclosure test(s).

With regard, however, to your objection to the records' release, the basis for your objection does not appear to be a legally sufficient reason to withhold the records. I do not know precisely what personal information is contained in the records, but the custodian has stated that your address, date of birth, telephone number, and Social Security number will not be released. For the reasons explained above, this information is protected from disclosure under the FOIA; and, therefore, your right to have this information withheld will be protected.

Additionally, regarding your photograph, this office has consistently opined that records depicting public employees ordinarily are subject to disclosure under the test for personnel records. The custodian's decision to release your photograph is, therefore, likely consistent with the FOIA.

Finally, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. The test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. The custodian's analysis cannot be based on a requester's subjective motive. Some judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy.

In sum, I cannot opine on the release of any specific record contained in your personnel file. But the custodian has properly decided to withhold certain personal information contained in your records. And I believe the custodian's decision to release your photograph is likely consistent with the FOIA.

Sincerely,
LESLIE RUTLEDGE
Attorney General