Can a retired Little Rock city employee block disclosure of his personnel file by claiming the request is meant to embarrass him?

Plain-English summary

Frank D. Scott Sr., a retired City of Little Rock employee, objected to the release of records from his personnel file (and complaints about him) under a FOIA request. He raised two arguments:

1. He had been retired for five years, and "no officials will make a decision about [him]."
2. The request was "an attempt to embarrass [him], or to embarrass [his] son."

The AG sided with the City on the substance, but ordered the custodian to make additional redactions before release.

The custodian's decision was nearly correct. Applying the standard framework (the AG attached Op. 2016-018 for the underlying analysis), the records were properly classified and properly slated for release, except that the redactions were not thorough enough.

Additional redactions required. The AG noted three specific items that were either unredacted or only partially redacted:

• Date of birth on the "Status Change/Request for Personnel" form (June 11, 2006 effective date)
• Marital status entry on the "New Employees" form
• Life insurance beneficiary entry on the same form

The redactions also had to be done thoroughly enough that the underlying information could not be read or otherwise discovered. Section 25-19-105(f)(3) requires the redaction format to indicate the amount of information deleted and where on the record, but the actual content must be unrecoverable.

Both of Scott's objections were legally insufficient.

• Retired status: Records normally maintained in personnel files remain subject to FOIA after the employee leaves. Cited authority: Ops. Att'y Gen. 2016-025 and 2006-182.
• Requester's motive: "[T]he requester's identity or motive for making a request under the FOIA is generally irrelevant to whether a record must be released." The test for releasing employee-related records is objective.

The AG enclosed Op. 2016-018, a 2016 opinion that sets out the standard FOIA framework for personnel and employee-evaluation records (the Young v. Rice balancing test, the Thomas v. Hall three-element test for evaluation records, and the standard redaction list).

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.

Common questions

Q: Why doesn't retirement protect the personnel file?
A: Because the FOIA classifies records by type, not by the employment status of the person. Personnel records were public when the employee was active; they remain public after retirement. The AG's office has said this consistently in Ops. 2016-025 and 2006-182.

Q: What does "thorough redaction" actually mean?
A: The black box (or other deletion marker) must cover the protected information so completely that it cannot be read through. A partial redaction that leaves the content visible to a careful reader does not satisfy the FOIA. Cited Ops. 2018-121 and 2017-134 explain the standard.

Q: Why are dates of birth and marital status protected?
A: They are part of a longstanding AG-recognized list of items that must be redacted from personnel records before release. The list also includes Social Security numbers, medical information, personal contact information, banking info, payroll deductions, undercover-officer identification, and a few others. The redactions apply even when the document overall is releasable.

Q: What about the complaints? Were those subject to release too?
A: The complaints in Scott's file fall under the AG's "unsolicited complaints are personnel records" rule. As personnel records, they go through the Young v. Rice privacy-balancing test. The AG concluded the custodian had applied the test correctly.

Q: What if Scott had been worried about a specific person seeing the records?
A: Still not a legal basis to withhold. The FOIA test asks whether the records meet objective standards for release. A specific requester's identity or relationship to the subject is not part of that test.

Background and statutory framework

Section 25-19-105(c)(3)(B)(i) is the AG-review channel. Section 25-19-105(f)(3) sets the form of redactions: "The custodian shall maintain a record of any decision to disclose only a portion of a record... The custodian shall further indicate on the record how the record was redacted." But the underlying redaction must be unreadable.

The substantive analysis for personnel records and employee-evaluation records lives in §§ 25-19-105(b)(12) and (c)(1) respectively. The AG attached Op. 2016-018 for the Carla L. Daniels case, which spelled out the standard Young v. Rice framework and the Thomas v. Hall evaluation-records test.

The two settled propositions the AG applied here are:

• Retired-employee rule. Records normally maintained in personnel files remain subject to FOIA after the employee leaves. Ops. 2016-025, 2006-182.
• Motive rule. The requester's identity or motive is generally irrelevant. Ops. 2018-125, 2018-087, 2018-061, 2014-094, 2012-014, 2011-107.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG-opinion review)
• Ark. Code Ann. § 25-19-105(f)(3) (redaction format)
• Op. Att'y Gen. 2016-018 (standard framework, attached as enclosure)
• Ops. Att'y Gen. 2016-025, 2006-182 (retired employees still covered by FOIA)
• Ops. Att'y Gen. 2018-125, 2018-087, 2018-061, 2014-094, 2012-014, 2011-107 (requester motive irrelevant)
• Ops. Att'y Gen. 2018-121, 2017-134 (thorough-redaction standard)

Source

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

Original opinion text

Opinion No. 2019-036
May 17, 2019

Frank D. Scott Sr.
c/o Sean Nadji, FOIA Coordinator
City of Little Rock Human Resources Dept.
500 W. Markham, Suite 130W
Little Rock, AR 72201-1429

Dear Mr. Scott:

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 copies of non-exempt records contained in your personnel file, as well as any complaints made about you. The records custodian has determined that the requested records are releasable under the FOIA, with certain redactions. You object to any disclosure by the City for the stated reasons that "[n]o officials will make a decision about [you] because [you] have been retired for five years[,]" and that "this is simply an attempt to embarrass [you], or to embarrass [your] son ...."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the custodian's decision to release the responsive records as redacted is not entirely consistent with the FOIA because several additional redactions must be made prior to the records' release (and redacted thoroughly enough so that the information cannot be read or otherwise discovered). For instance, a birthdate must be redacted from the "Status Change/Request for Personnel" (June 11, 2006 effective date) and the entries under "marital status" and "life insurance beneficiary" must be redacted from the record entitled "New Employees."

Please note that I have attached a previous opinion of this office, Op. Att'y Gen. 2016-018, that explains the legal standards that must be applied to determine whether the employee-related records in question must be disclosed pursuant to the FOIA. I will not repeat those standards herein, but instead refer you to the attached opinion for the applicable definitions and tests. It is my opinion that with the exception of the additional redactions noted above, the custodian properly applied these legal standards in deciding to release the redacted records at issue.

The objections you have raised are not legally sufficient reasons to withhold the records. The fact that you have been retired for five years is not, in and of itself, a basis for the City to refuse a request for your personnel file. Records normally maintained in employees' personnel files remain subject to the FOIA after an employee leaves a public agency.

Additionally, the requester's identity or motive for making a request under the FOIA is generally irrelevant to whether a record must be released. That is because the test for the release of employee-related records is entirely objective, meaning that the custodian does not consider the subjective motives or identity of the requester.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure: Opinion No. 2016-018 (See the AG opinions library for the standard FOIA framework that opinion supplies.)