Can a third party named in another employee's personnel file block release under the Arkansas FOIA based on embarrassment or potential slander?

Plain-English summary

The Arkansas Department of Veterans' Affairs (ADVA) received a FOIA request for the personnel and evaluation records of a former employee. ADVA's custodian decided to release the records, including a document that mentions Lisa Balencia by name. Although Balencia was not the subject of the FOIA request, the document discussed her in a way that the custodian classified as her own personnel record. The custodian forwarded the document to her, and Balencia objected to the release on three grounds: it could be an unwarranted invasion of privacy, it could be considered slanderous, and it could cause her embarrassment.

Attorney General Leslie Rutledge concluded the custodian's decision was consistent with the FOIA. Based on the face of the document, the portions mentioning Balencia were properly classified as personnel records. Under the two-step Young v. Rice balancing test, the privacy interest was not strong enough to overcome the disclosure presumption. The fact that the subject considered the release an invasion of privacy was irrelevant because the test is objective. Embarrassment and slander concerns are not statutory exceptions to FOIA disclosure.

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.

Historical context

Why this opinion matters

This is a "third-party mention" pattern. The FOIA request targeted Employee A's records. But Employee A's records included a document that discussed Employee B. Both employees, when notified, may have standing under § 25-19-105(c)(3)(B)(i) to object to release of the parts referring to them. In Balencia's case, the AG concluded the custodian's decision to release was consistent with the FOIA, and her general "embarrassment / privacy / slander" objections did not meet the legal standard.

How the AG analyzed it (as of 2019)

Personnel record classification. The AG, having reviewed the document, concluded the portions naming Balencia were her personnel records under the standard Young v. Rice framework. Young, 308 Ark. 593, 826 S.W.2d 252 (1992).

The Young v. Rice balancing test. Two steps: (1) is the information of a personal or intimate nature giving rise to a greater than de minimis privacy interest? (2) If yes, is that interest outweighed by the public interest in disclosure, with the thumb on the disclosure side? The party resisting disclosure carries the burden. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).

Why Balencia's objections did not work. "Embarrassment if released to the public" describes a non-statutory subjective harm. The FOIA does not let custodians withhold based on subjective embarrassment. "Slander" is a defamation tort claim that, if it exists, is litigated separately; it is not a FOIA exception. "Unwarranted invasion of privacy" is a statutory standard, but it requires the privacy interest to actually outweigh the disclosure interest under Young v. Rice, not just to be asserted.

Mandatory redactions still apply. Even with the document releasable, the standard mandatory-redaction list applies (personal contact info, DOB, marital status, SSN, medical info, etc.). The AG noted these standard items but did not flag specific redactions in this document.

What about evaluation records?

The AG also noted the alternative employee-evaluation records framework under § 25-19-105(c)(1) and Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, but did not need to apply the four-part test (suspension/termination, finality, basis, compelling public interest) because the document was treated as a personnel record. Whether it was correctly classified or whether it was actually evaluation material was a fact question for the custodian.

Common questions

Q: Can someone whose name appears in another employee's personnel file block disclosure?
A: They can ask the AG to review under § 25-19-105(c)(3)(B)(i), but they have to articulate a legally sufficient objection. "Embarrassment" and "potential slander" are not in the FOIA's exception list. "Privacy invasion" requires the Young v. Rice balancing test to come out in favor of withholding, which the AG concluded it did not here.

Q: What happens if the document about Person A turns out to be Person A's evaluation record?
A: A different test applies. The four-part Thomas v. Hall test (suspension/termination, finality, basis, compelling public interest) governs evaluation records. The AG did not run that analysis because she concluded the document was a personnel record, not an evaluation record.

Q: Can I sue if the release results in my embarrassment?
A: Embarrassment alone is not a tort. If the document contains false statements that damage your reputation, defamation might apply, but the public-records release itself does not automatically create a defamation claim, and the analysis is independent of FOIA.

Q: What if I think the document is wrong about me?
A: That is a different issue. You may have administrative or legal remedies to correct an inaccurate personnel record, but those remedies do not block FOIA release of the existing record.

Background and statutory framework

This opinion applies the FOIA personnel-records framework (Ark. Code Ann. § 25-19-105(b)(12) and Young v. Rice) to a third-party mention pattern. The applicable rules are the same as in companion 2019 FOIA opinions (see Ops. Att'y Gen. 2019-028, 2019-030, 2019-031). The mandatory redaction list (DOB, SSN, marital status, etc.) still applies even when the document as a whole is releasable.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer redaction)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal-contact-information redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, Ark. Supreme Court, definition of evaluation records
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), Ark. Supreme Court, balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), Ark. Supreme Court, burden on resisting party

Reference:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Arkansas Law Press, 6th ed., 2017)

Related AG opinions:

• Op. Att'y Gen. 2019-028, 2019-030, 2019-031 (companion FOIA personnel/evaluation opinions)
• Op. Att'y Gen. 2010-044 (presumption of public-record status)
• Op. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective test for privacy invasion)

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Opinion No. 2019-017
February 22, 2019

Lisa Balencia
c/o Sue Harper, Veteran Service Officer
Arkansas Department of Veterans' Affairs
210 South Main
Monticello, AR 71655

Dear Ms. Balencia:

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 Arkansas Department of Veterans' Affairs ("ADVA") has received a FOIA request for copies of a former employee's personnel and employee-evaluation records. The custodian of records has notified you that "[y]ou are mentioned in a document that is the subject of [this] FOIA request." The custodian has provided you with the documents ADVA has determined are releasable, including the document that mentions you. You have forwarded this document to my office. You object to its release because "[your] name is mentioned" and because "[you] feel like this could cause an undue invasion of [your] privacy, ... could be considered slanderous, and cause [you] embarrassment if released to the public."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. The custodian has apparently decided that the portions of the document that mention you qualify as your personnel records and must be disclosed. Based on the face of the document and the limited facts before me, it is my opinion that these decisions are consistent with the FOIA. Your stated objection to the document's disclosure does not, in my opinion, form a legally sufficient basis for the custodian to withhold it.

DISCUSSION

[Standard FOIA framework: personnel records under Ark. Code Ann. § 25-19-105(b)(12), employee-evaluation records under § 25-19-105(c)(1), the Young v. Rice balancing test, the four-part Thomas v. Hall evaluation-records test, and the mandatory redactions list. See companion Ops. Att'y Gen. 2019-028, 2019-030, 2019-031 for the full framework.]

III. Application.

Having reviewed the document in question, it is my opinion, based on the face of the record and the limited facts before me, that (1) the portions of the document that name or identify you are properly classified as your personnel records, and (2) the release of these portions of the document would not constitute a clearly unwarranted invasion of personal privacy under the test outlined above. In my opinion, therefore, the custodian's decision to release these portions is consistent with the FOIA. And your stated objection in your request for my opinion, i.e., the fact that your name is mentioned, is not a legally sufficient reason for the custodian to withhold the document.

Sincerely,

Leslie Rutledge
Attorney General