Can a city withhold the entire personnel files of terminated employees who failed drug tests, citing privacy and lack of compelling public interest?

Plain-English summary

The City of Little Rock had publicly disclosed (in aggregate) that three Public Works employees had been terminated over a three-year window for failing drug or alcohol screening tests. A citizen then filed a FOIA request asking for those three employees' personnel files. Sandy Edgar, the City's HR Specialist and records custodian, decided to withhold the files entirely. Her stated rationale combined two different exemptions: she cited Ark. Code Ann. § 25-19-105(b)(12) (the personnel-records exemption, which turns on "clearly unwarranted invasion of personal privacy") and § 25-19-105(c)(1) (the evaluation-records exemption, which turns on the four-prong Thomas v. Hall test including a compelling-public-interest element). She came to AG Leslie Rutledge for review.

The AG could not give a definitive answer because she had not seen the records, but she flagged a problem with how the custodian had reasoned to her decision.

The two FOIA exemptions for employment-related records are mutually exclusive and have different tests:

• Personnel records under § 25-19-105(b)(12): subject to release except to the extent disclosure would be a "clearly unwarranted invasion of personal privacy" under the two-step Young v. Rice balancing test.
• Employee evaluation or job performance records under § 25-19-105(c)(1): closed unless all four Thomas v. Hall prongs are met (suspension or termination, final administrative resolution, records formed a basis for the decision, compelling public interest).

The custodian had classified the files as personnel records but had also rejected disclosure based on lack of "compelling public interest", an element that exists only in the evaluation-records test. That mix-up was the AG's central concern. The right move was to take each responsive record one at a time, classify it correctly, and then apply the test that fits its classification.

The AG agreed that a "substantial privacy interest" likely was present (identifying a former employee's failed drug or alcohol screen could be embarrassing and could affect future employment). But she said she could not determine the public-interest side of the Young balancing test without seeing the records, departmental policies, and screening procedures. She also noted, drawing on a 2009 opinion involving police officers, that the public-interest weight may be higher when the employees in question hold positions with public-safety implications. The City would need to consider that the three employees worked for Public Works and assess the safety implications of their roles.

A separate complication: even if some records were properly evaluation records, the custodian had not made a record-by-record classification, and the AG could not tell from the correspondence which (if any) records were properly evaluation records.

The AG's bottom line was that without specific records and individual classification, she could not opine on whether the across-the-board withholding was consistent with FOIA. The custodian needed to do the underlying classification and test-selection work first, ideally in consultation with regular counsel.

Currency note

This opinion was issued in 2020. 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

Why does it matter which exemption a record falls under?
Because the disclosure tests are different. Personnel records are presumptively releasable subject to a privacy balancing tipped toward disclosure. Evaluation records are presumptively closed unless all four Thomas v. Hall prongs (including suspension/termination and a compelling public interest) are met. Mixing the standards (e.g., applying the compelling-public-interest test to personnel records) leads to wrong outcomes in either direction.

What is the Young v. Rice balancing test?
A two-step inquiry from Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992). Step one: does the record contain personal or intimate information giving rise to more than a de minimis privacy interest? Step two: if yes, does that privacy interest outweigh the public's interest in disclosure? The balancing tips toward disclosure throughout.

What is the Thomas v. Hall four-prong test?
A test from Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, that controls release of employee evaluation or job performance records. All four must be satisfied: (1) suspension or termination, (2) final administrative resolution, (3) records formed a basis for the disciplinary decision, and (4) compelling public interest in disclosure.

Did the AG say drug-screening failure was a compelling public interest?
She did not decide that question. She noted that whether a compelling public interest exists is fact-bound, and pointed to a prior opinion (Op. Att'y Gen. 2009-096) that suggested the public interest might be higher in the law-enforcement context. For Public Works employees, the City would need to consider the safety implications of the specific roles before concluding either way.

Could the custodian still withhold everything?
Maybe, but only after doing the classification and test-application work record by record. A blanket withholding citing both exemptions without that case-by-case analysis is not what FOIA contemplates.

Background and statutory framework

This opinion sits within the standard Arkansas FOIA two-track framework for employment-related records. Personnel records (Ark. Code Ann. § 25-19-105(b)(12)) and employee evaluation or job performance records (Ark. Code Ann. § 25-19-105(c)(1)) are mutually exclusive categories with different release tests. The custodian's first job is to classify each responsive record, then apply the appropriate test.

The procedural hook for the AG's review was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the custodian, requester, or subject of certain employee-related records ask the AG whether the custodian's release decision is consistent with FOIA. Here the request came from the custodian. The AG's review is bounded: she opines only on the consistency of the custodian's decision, not on document-by-document specifics.

Citations

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover-officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records release test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019) (AG opinion review)

Cases:

• Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• 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

Prior opinions referenced:

• Op. Att'y Gen. 2009-096 (police officer psychological testing and "pass/fail" drug screening; suggesting higher public interest in law-enforcement context)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-024
May 5, 2020

Sandy R. Edgar, HR Specialist
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Ms. Edgar:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian of records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2019). This subdivision authorizes the custodian, requester, or the subject of certain employee-related 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 the personnel files of now-former employees who had failed drug/alcohol screening tests over a three-year period. You state that it is your opinion, as records custodian for the City, that given "the sensitive nature surrounding the termination of these individuals, these are personnel records to the extent that disclosure would constitute a clear and unwarranted invasion of personal privacy [citing Ark. Code Ann. § 25-19-105(b)(12)], and is of no compelling public interest to disclose" (citing Ark. Code Ann. § 25-19-105(c)(1)). You request my opinion on whether the decision to withhold the records is consistent with the FOIA.

RESPONSE

You have not identified any particular record(s) that formed the basis for your apparent decision to withhold all of the requested records. Without that information, I cannot meaningfully opine on your decision. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed.

Additionally, based on your correspondence, it appears that you have classified the records at issue as the former employees' personnel records. Yet you have, at least in part, applied the disclosure test applicable exclusively to employee-evaluation records. It is the responsibility of the custodian, in the first instance, to properly classify each responsive record and employ the applicable test for disclosure to each record.

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 appear to be met. The request was made to the City of Little Rock, which is a public entity and is subject to the FOIA. Moreover, the request appears to pertain to public records. Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable.

Accordingly, the analysis 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.

[Standard discussion of the personnel-records exception under § 25-19-105(b)(12), the Young v. Rice balancing test, and the standard list of items that must be redacted from any released personnel record. Standard discussion of the employee-evaluation exception under § 25-19-105(c)(1) and the four-prong Thomas v. Hall test.]

III. Application.

Based on the correspondence sent to me as part of your request, it appears that you have determined that the entire personnel file for each of the three former employees should be withheld from disclosure. It is unclear what your basis for that determination is.

You state that the City provided aggregate information to a requester under the FOIA in which the City made it known that, over a three-year period, three unnamed employees with the Public Works Department had been terminated because of a "failure to pass a drug/alcohol screening." The disclosure of this information led to a subsequent request under the FOIA for the three former employees' personnel files, a request that would inevitably result in identifying the employees.

In your request for my opinion, you do not state categorically that you have denied the request for the employees' personnel files, but the implication is there. You state your opinion (but not your determination) that the requested records comprise the former employees' personnel records. You also suggest that the high standard for withholding personnel records, discussed above, is met in this case because disclosure would be a "clearly unwarranted invasion of personal privacy."

However, you do not state what formed the basis for your opinion that none of the records should be disclosed. Without this information, this office is unable to say one way or another whether the City has correctly decided to withhold the former employees' personnel files. Personnel files usually include several different kinds of records, many of which are typically open to public inspection (although some information may need to be redacted, often on privacy grounds).

I believe that the identification of the affected former employees could subject them to potential embarrassment or could affect their future employment. Thus, a substantial privacy interest likely is present. But without a review of the records and the facts surrounding the administration of the screenings, including the relevant departmental policies and procedures, I am unable to definitively state whether the public's interest under the Young v. Rice balancing test is met. The public could conceivably have a substantial interest in this information, but I do not have sufficient information to make that determination. You must consult with your regular counsel to determine whether there is a clearly unwarranted invasion of the former employees' personal privacy sufficient to override the public's interest.

You also state that the records (and thus the former employees' identities), despite being classified as personnel records as stated above, are or could be protected by the exemption for employee-evaluation records. This suggests that at least some of the records are properly classified as records of that type. Not having the records before me, I cannot opine on how any of the records should be so classified. This ambiguity highlights the critical importance of a custodian's correctly classifying the records at issue in the first instance and then applying the appropriate test(s) for disclosure.

In sum, without having seen the records at issue and lacking sufficient surrounding facts, I am unable to definitively opine on whether your apparent decision to withhold the records from disclosure is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General