Can the subject of an Arkansas FOIA request block release of his personnel and disciplinary records by claiming invasion of privacy?

Plain-English summary

A City of Little Rock employee (Mark E. Cato) was the subject of a Freedom of Information Act request for his personnel file and disciplinary file. The City's records custodian decided the personnel file was releasable, and that disciplinary actions in the form of suspensions or terminations were releasable if the administrative process had reached completion. The custodian also said sensitive personal information (home address, date of birth, telephone number, Social Security number) would be redacted before release. Cato, as the subject of the records, used the procedure under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask AG Leslie Rutledge to review whether that release decision was consistent with the FOIA. His objection was simple: it would be an invasion of his privacy.

The AG declined to review specific documents (she had not seen them), but she set out the standards the custodian had to apply and answered the underlying question Cato was really asking.

The bottom-line answer she gave was that the subject's personal objection to release, framed as "invasion of privacy," was not by itself a legally sufficient reason to withhold otherwise disclosable records. The Arkansas FOIA test is objective. Whether release would constitute a "clearly unwarranted invasion of personal privacy" turns on a balancing test under Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), with the scale tipped toward disclosure. The subject's view of how invasive the release feels does not enter the calculation.

For the personnel-records side of the file, Young v. Rice imposed a two-step balancing test:

1. Did the information give rise to a greater than de minimis privacy interest? If only de minimis, the thumb on the scale for disclosure already won.
2. If greater than de minimis, was that interest outweighed by the public's interest in disclosure?

The subject bore the burden of showing his privacy interest exceeded the public's. The AG repeatedly emphasized that the test is objective and that the requester's identity or motive is generally irrelevant.

For the disciplinary records (which the AG treated under the framework for "employee evaluation or job performance records" under Ark. Code Ann. § 25-19-105(c)(1)), the four-prong test from Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, controlled: there had to be (1) a suspension or termination, (2) a final administrative resolution of that proceeding, (3) the records had to have formed a basis for that decision, and (4) the public had to have a compelling interest in disclosure.

The AG also walked through the standard list of items that have to be redacted from any released personnel record (personal contact information, employee personnel number, marital status and dependents, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, driver's license information, insurance coverage, tax information and withholding, payroll deductions, and banking information).

Read together, the opinion is a textbook recitation of the framework with one substantive answer aimed at the subject: your subjective sense that disclosure invades your privacy is not the legal standard.

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

If the records are about me, can I block their release?
Under the framework set out in this opinion, no, not on the basis of a personal objection alone. The AG explained that the test for whether disclosure is a "clearly unwarranted invasion of personal privacy" is objective. The records subject's own sense of intrusion is irrelevant to that balancing.

What does "clearly unwarranted invasion of personal privacy" actually mean?
The Arkansas Supreme Court in Young v. Rice supplied a two-step balancing test. First, does the document contain information of a personal or intimate nature giving rise to more than a de minimis privacy interest? Second, if yes, does that privacy interest outweigh the public's interest in disclosure? The presumption favors disclosure throughout.

What was the difference between "personnel records" and "employee evaluation or job performance records" in this opinion?
The AG explained that personnel records are essentially everything in the file that does not qualify as evaluation or job-performance records. Personnel records are released unless the Young balancing tips against disclosure. Evaluation or job-performance records are withheld unless all four prongs of the Thomas v. Hall test are met (suspension or termination, finality, records formed the basis for the decision, compelling public interest).

Did this opinion say what specifically had to be redacted?
Yes, in a list. The AG identified personal telephone numbers, personal email addresses, home addresses (statutorily required redactions under Ark. Code Ann. § 25-19-105(b)(13)), employee personnel numbers, marital status and dependent information, dates of birth, Social Security numbers, medical information, undercover-officer identifiers, driver's license details, insurance coverage, tax and withholding information, payroll deductions, and banking information.

Did the AG actually look at the records?
No. She made clear she had not seen them and could not opine on any specific document or specific redaction. Her statutory role under Ark. Code Ann. § 25-19-105(c)(3)(B) is to opine whether the custodian's decision is consistent with FOIA, not to act as a document reviewer.

Why does the requester's identity or motive not matter?
The AG cited Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, and 2011-107 for the rule that the test is whether records shed light on the workings of government for the general public, not what a particular requester intends to do with them. She also flagged that the legislature has never adopted a generalized "harassment" exemption.

Background and statutory framework

The opinion applies the standard Arkansas FOIA two-track framework for employment-related records:

• Personnel records are governed by Ark. Code Ann. § 25-19-105(b)(12), which exempts them only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The Young v. Rice two-step balancing test fills in that phrase.
• Employee evaluation or job performance records are governed by Ark. Code Ann. § 25-19-105(c)(1) and the four-prong Thomas v. Hall test (suspension or termination, final administrative resolution, records formed the basis, compelling public interest).

The procedural hook for this opinion was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the custodian, the requester, or the subject of the records ask the AG whether the custodian's release decision is consistent with FOIA. The statute does not authorize the AG to review specific documents or to answer specific questions about what is releasable; she may only opine on whether the custodian's decision overall is consistent with the FOIA.

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 by custodian, requester, or subject)

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:

• Ops. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective test for invasion of privacy)
• Ops. Att'y Gen. 2019-036, 2018-125, 2014-094, 2012-014, 2011-107 (requester identity and motive irrelevant)
• Ops. Att'y Gen. 2019-047, 2018-061, 2018-087 (workings-of-government test)
• Ops. Att'y Gen. 2014-088, 2008-090, 2008-065 (compelling public interest)
• Op. Att'y Gen. 96-168 (purpose of evaluation-records exception)
• Treatise: John J. Watkins, Richard J. Peltz-Steele, Robert Steinbuch, The Arkansas Freedom of Information Act (6th ed., Arkansas Law Press 2017)

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-032
July 16, 2020

Mr. Mark E. Cato
c/o Sandy Edgar, HR Specialist
Human Resources Department
Little Rock City Hall
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Mr. Cato:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the 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 "your personnel file and disciplinary files." The custodian of records has determined that "your personnel file is releasable and disciplinary actions in the form of a suspension or termination are releasable if it [sic] reached completion of the administrative resolution process." The custodian has also stated that all sensitive personal information, such as home address, date of birth, telephone number, or Social Security number will be redacted prior to release. Your correspondence states that you object to the release of this information as an invasion of privacy and ask whether the custodian's release decision is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would be responsive to the instant 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 document. Accordingly, I can only 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 "employee evaluation or job performance" 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 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.

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 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 or job-performance records" that pertain to individual employees. Whether a particular record meets this definition is 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. Additionally, a requester's identity or motive for making a request under the FOIA is generally irrelevant as to whether a non-exempt public record must be released. Again, 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. This ordinarily precludes the custodian from considering any subjective motives or the identity of a requester when making the determinations whether a record must be disclosed or withheld.

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 (Ops. 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.

When dealing with employment-related records, custodians must make two determinations in the first instance: (1) whether the records meet the definition of the two kinds of employment records discussed above; and (2) if so, whether under the specific circumstances, the FOIA requires the employment records be released based on the applicable test for disclosure discussed above. Because I have not seen the records at issue in this instance, I cannot definitively opine about either of these determinations.

However, I do not believe that your stated objection to the records' release, invasion of privacy, would, as a general matter, be a legally sufficient reason to withhold records that are subject to disclosure under the FOIA. Personnel records of public employees are subject to disclosure except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Thus, as to your personnel records, the custodian must apply the balancing test for personnel records discussed above by determining (1) whether information on the records gives rise to a greater than de minimis privacy interest, and (2) whether that interest outweighs the public's interest in disclosure, keeping in mind that the balancing test is weighted in favor of disclosure. As the subject of the records, you bear the burden of showing that your privacy interest is greater than the public's interest in disclosure.

As to any records the custodian has classified to be evaluation records, such records cannot be released unless all four elements of the test for disclosure have been met. Whether all four elements have been met are questions of fact for the custodian to determine.

In sum, I have not reviewed the actual records at issue and, therefore, I cannot definitely opine on whether the custodian's decisions in this matter are consistent with the FOIA. However, your stated objection to the records' release generally would not appear to serve as a sufficient reason for the custodian to withhold records that are otherwise subject to disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General