When an Arkansas state agency gets a FOIA request for an employee's salary and contact info, what has to be released and what has to be withheld?

Plain-English summary

A FOIA requester asked the Arkansas Department of Labor and Licensing for a roster of department employees with each person's name, employee position number, job title, agency, worksite, base salary, hire date, shift assignment, employment status, home address, and phone number. The department's custodian decided to release everything except the home addresses and the personal phone numbers (including personal cell numbers) of nonelected state employees. Chris Boggs, an inspector supervisor with the Manufactured Home Commission, was a subject of the records and asked the AG to review the decision under § 25-19-105(c)(3)(B)(i).

Then-Attorney General Leslie Rutledge concluded that the custodian's plan was generally consistent with the Arkansas FOIA. Personnel records held by a public entity are presumed to be public records under the FOIA's three-step disclosure test (subject entity, public record, no exception). The targeted exemption at § 25-19-105(b)(12) protects personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy," but the Arkansas Supreme Court's Young v. Rice balancing test starts with a thumb on the scale toward disclosure. Personal contact information (home address, personal phone, personal email) is independently shielded by § 25-19-105(b)(13). The opinion also clarified that "employee position number" was disclosable when used as a job-position identifier but not when used as a personnel/security identifier under § 25-19-105(b)(11).

The opinion's longer point was about classification. Records of a public employee come in two distinct kinds: "personnel records" and "employee evaluation or job performance records." The first category gets the Young v. Rice balancing test. The second category cannot be released at all unless four conditions are met: there was a suspension or termination, that proceeding has reached final administrative resolution, the records formed a basis for the decision, and there is a compelling public interest in disclosure. The custodian, not the AG, has to do the classification.

Currency note

This opinion was issued in 2021. 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 is the home address always redacted but salary always public?
Two different exemptions are at work. Section 25-19-105(b)(13) is a categorical, line-item redaction rule for personal contact information. There is no balancing on it: home address comes out. Salary, in contrast, falls inside § 25-19-105(b)(12)'s broader "personnel records" category and gets the Young v. Rice test, which under Arkansas case law has consistently treated salary as disclosable because the public has a strong interest in knowing how tax dollars are spent.

What's the difference between "personnel records" and "employee evaluation records"?
"Personnel records" is the catch-all: applications, transfer records, payroll-related documents, recommendation letters, leave requests, training certificates, even subpoenas. "Employee evaluation or job performance records" are more narrowly drawn, per Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387: records (1) created by or at the employer's behest, (2) to evaluate the employee, (3) detailing performance or lack of performance. Misconduct-investigation records that detail the underlying incidents are evaluation records. The two categories are mutually exclusive; the same document is in one box or the other.

What does "compelling public interest" mean for evaluation records?
The opinion adopted the framework from Watkins, Peltz-Steele, and Steinbuch's THE ARKANSAS FREEDOM OF INFORMATION ACT (6th ed. 2017). Three factors weigh in: the nature of the infraction (with extra weight on violations of public trust or gross incompetence), the existence of a public controversy related to the agency, and the employee's position within the agency. A general interest in public-employee performance is not, on its own, compelling.

Can the custodian consider why someone is asking?
Generally no. The opinion reaffirmed that "a requester's identity or motive for making a request under the FOIA is generally irrelevant," citing a string of prior opinions. The test is objective: do the records shed light on government workings? An exception exists where a requester's stated motive happens to surface a previously unseen objective public interest, but the motive itself never tips the scale.

Is there a "harassment" exemption to keep records away from someone who might misuse them?
No. The opinion explicitly noted that the Arkansas Legislature has never enacted a generalized harassment exception. The categorical redactions of home address, personal phone, social security number, etc., serve as the privacy backstop.

Background and statutory framework

The Arkansas FOIA's three-element disclosure test is essentially: (1) is the request directed to a covered entity, (2) is the document a "public record" (defined at § 25-19-103(7)(A) as a writing, recording, or data compilation that constitutes a record of the performance or lack of performance of official functions), and (3) does any exception apply. The first two are usually easy. The Pulaski County (2007) decision held that the public-record presumption under the FOIA can be rebutted if the records do not fall within the substantive definition.

The opinion's exhaustive list of categorical redaction items, drawn from prior AG opinions, reflects the AG's view that even an otherwise releasable personnel record must be scrubbed of:

• Personal contact information (telephone, email, home address) under § 25-19-105(b)(13)
• Employee personnel number (security/identification function)
• Marital status and dependent information
• Date of birth
• Social Security number
• Medical information
• Identification of certain undercover law enforcement officers (§ 25-19-105(b)(10))
• Driver's license number and photocopy
• Insurance coverage details
• Tax information and withholding
• Payroll deductions
• Banking information

Once the document is properly classified and the line-item redactions are applied, the Young v. Rice balancing test (a two-step look at whether the privacy interest is more than de minimis, and if so, whether it outweighs the public interest in disclosure, with the scale tipped toward disclosure) governs the residual question of whether the document as a whole comes out.

Citations

State statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2019) (public record definition)
• Ark. Code Ann. § 25-19-105(a)(1)(A) (general right of inspection)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identifying information)
• Ark. Code Ann. § 25-19-105(b)(11) (security passwords/PINs/identifiers)
• 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) (employee evaluation/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG review)

Cases:

• Pulaski Cty. v. Ark. 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

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT (Arkansas Law Press, 6th ed., 2017)

Prior AG opinions:

• Op. Att'y Gen. 2019-036, 2019-047
• Op. Att'y Gen. 2018-061, 2018-087, 2018-125
• Op. Att'y Gen. 2017-125
• Op. Att'y Gen. 2016-055
• Op. Att'y Gen. 2015-072
• Op. Att'y Gen. 2014-094
• Op. Att'y Gen. 2013-090
• Op. Att'y Gen. 2012-014
• Op. Att'y Gen. 2011-107
• Op. Att'y Gen. 2008-065
• Op. Att'y Gen. 2007-064, 2007-070, 2007-225
• Op. Att'y Gen. 2006-035, 2006-038, 2006-176
• Op. Att'y Gen. 2005-030, 2005-095, 2005-139, 2005-194
• Op. Att'y Gen. 2004-167, 2004-260
• Op. Att'y Gen. 2003-073, 2003-153, 2003-336, 2003-385
• Op. Att'y Gen. 2001-022, 2001-080, 2001-112
• Op. Att'y Gen. 99-147
• Op. Att'y Gen. 98-001, 98-006, 98-126
• Op. Att'y Gen. 97-222, 97-368
• Op. Att'y Gen. 96-168
• Op. Att'y Gen. 95-351
• Op. Att'y Gen. 94-198, 94-306
• Op. Att'y Gen. 93-055

Source

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

Original opinion text

Opinion No. 2021-018
March 4, 2021
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Chris Boggs, Inspector Supervisor
Arkansas Manufactured Home Commission
Arkansas Department of Labor & Licensing
900 West Capitol Avenue, Suite 400
Little Rock, AR 72201
Dear Mr. Boggs:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the subject of the requested 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 Arkansas Department of Labor and Licensing ("Department of Labor") has received a request under the FOIA for the following information on each department employee:
a. Employee's name, with separate columns for first, middle, and last;
b. Employee position number (only applicable to state employees);
c. Job title;
d. Agency;
e. Worksite name;
f. Base salary;
g. Date of hire;
h. Shift assignment (including rotation pattern, if any);
i. Current status (full-time, part-time, per diem/casual, etc.);
j. Home address; and
k. Phone number.

The records custodian has determined that except for the home or personal cell phone numbers and home addresses of nonelected state employees, the requested information is subject to release. You express concern about "giving information to someone outside of the State employee structure" and ask whether the custodian's decision regarding the release of the records is consistent with the FOIA.

RESPONSE
Although I have not seen any records that would be responsive to the instant FOIA request, it appears, based on the face of a Department of Labor memorandum you provided, that the custodian's decision as to what information is releasable and what is exempt is generally consistent with the FOIA. Because I have no information regarding how the custodian has classified the records it intends to disclose, I will set out the legal standards the custodian must apply to make that determination. As explained below, the types of records involved 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 Department of Labor, 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, given that I have no information to suggest that the presumption can be rebutted, 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 considerations the custodian must take into account. 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 employee-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. I have no information regarding the custodian's classification of the records at issue. Properly classifying a record is critical so that the appropriate test for disclosure can be applied.

The custodian has determined that aside from your home telephone number or your personal cell phone number and your home address, the requested information is subject to release. In my opinion, that decision is generally consistent with the FOIA. I will note here that the requester has also asked for your "[e]mployee position number," though it is unclear as to what exactly this refers. If the requester is asking for your job position number, that information is disclosable. However, if the requester is asking for your employee personnel number, that information is not subject to release.

Finally, your concern about releasing the requested information to someone who does not work for the State of Arkansas is not a legally sufficient reason to withhold otherwise releasable records. With some exceptions, the FOIA makes public records "open to inspection and copying by any citizen of the State of Arkansas." Additionally, as noted above, 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 for wanting the record.

Sincerely,
LESLIE RUTLEDGE
Attorney General