Can the public see how much sick leave or annual leave a public employee has used under Arkansas FOIA, even if the employee objects?

Plain-English summary

The City of Little Rock got a FOIA request for "the leave time balances and activity, and attendance information for everyone in the 311 Department." The custodian, Jodi Russell, decided to release the records as personnel records, with sensitive personal information redacted. One employee objected and asked the AG whether release was consistent with FOIA.

The AG agreed with the custodian. Leave records and attendance records are personnel records (they pertain to individual employees but aren't evaluation records). Under the Young v. Rice balancing test, the AG has consistently opined since at least 2012 that leave and attendance records are generally disclosable.

The reasoning: even if there's some privacy interest in showing whether you used sick leave or annual leave, the public's interest in seeing whether the agency is properly adhering to its leave policies outweighs that interest. Disclosure sheds light on whether employees are coming to work as scheduled, whether the agency enforces its rules, and whether there are abuse patterns. Standard required redactions still apply for personal contact info, dates of birth, SSNs, etc.

The AG also reminded everyone that the requester's identity and motive are generally irrelevant. The objection that "I don't like why this person wants my records" is not a basis for denial.

What this means for you

Public employees worried about your leave records becoming public

Your leave and attendance records are part of the public record. The amount of sick leave you've used, how much vacation you've taken, whether you've taken comp time, when you've been absent, all of that is generally subject to disclosure under FOIA. The opinion does not give you a path to keep this information confidential just because you don't want it released.

What can be redacted is the personal sensitive information embedded in your records: your home address, personal phone, personal email, date of birth, SSN, medical information, banking information. The reason you took leave can be sensitive (a medical condition, a family emergency) and the medical-information redaction can apply, but the fact and amount of leave usage is releasable.

FOIA custodians

When you receive a request for leave or attendance records, the path is clear. Classify them as personnel records. Apply the Young v. Rice balancing test. The opinion provides authoritative AG language: leave usage "sheds light on an agency's performance of its duties because, among other things, it shows whether the agency is properly adhering to the policies limiting the amount of leave (whether annual or sick) that employees may take."

Apply the standard redactions for personal sensitive information. Don't refuse the request because the named employee objects; their objection is not a legal basis for denial.

Citizens, journalists, and taxpayers

This opinion is a clear citation when an agency tries to withhold employee leave or attendance records. Patterns of leave usage are public information. If you're investigating questions like whether a public employee was actually working when they claimed to be, or whether an agency is permitting excessive paid time off, the records are available.

HR offices

Make sure your standard FOIA-response protocol for leave records is consistent: classify as personnel record, apply balancing test, redact personal contact info and other sensitive items, release the rest. Don't treat employee objection as a denial signal. The opinion is unambiguous: a requester's identity and motive are generally irrelevant, and there is no harassment-based exemption to FOIA.

Common questions

Can I see exactly when my coworker took sick days?

If your coworker is a public employee in Arkansas, generally yes. The opinion confirms that the dates and amounts of leave are part of the personnel record subject to FOIA. The reason they took leave (the underlying medical condition, for example) may be redacted as medical information, but the fact and timing of leave can be released.

What about FMLA leave?

FMLA leave is governed by federal law and may have its own confidentiality protections for the medical information that supports the leave. The fact of taking leave under FMLA is typically still discoverable; the medical certification details are usually not. Custodians should consult with counsel for specifics.

What about the requester's motivation?

Generally irrelevant. The opinion is direct: "neither the Arkansas Legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester." There is no harassment-based exemption to FOIA. The custodian's analysis turns on whether the records shed light on the workings of government, not on why the requester wants them.

What if my supervisor wants the records?

Under § 25-19-105(c)(2), public employees and their representatives can access their own personnel records. A supervisor accessing records as part of their official duties has access to those records as part of agency operations, not under FOIA.

Are there records that are protected even within leave records?

Yes. Personal contact information, employee personnel numbers, marital status, dates of birth, social security numbers, medical information, undercover officer identities, driver's license info, insurance coverage, tax information, payroll deductions, and banking information all have to be redacted before release.

Background and statutory framework

Personnel records under Ark. Code Ann. § 25-19-105(b)(12) are exempt only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Leave and attendance records have been treated as personnel records by the AG since at least Op. 2013-022.

Young v. Rice, 308 Ark. 593 (1992), provides the balancing test. The custodian first asks whether the record contains information of a "personal or intimate nature" giving rise to a greater than de minimis privacy interest. If yes, the custodian then weighs that privacy interest against the public's interest in disclosure, which is measured by whether release would shed light on the workings of government. The scale tips in favor of disclosure.

For leave records specifically, the AG has applied the test consistently since at least Op. 2012-136: even if there's a privacy interest in leave usage, the public interest is substantial because leave records show whether the agency is enforcing its leave policies. Op. 2016-031 and Op. 2020-049 reinforce this conclusion.

The standard required-redactions list comes from a combination of statute (§ 25-19-105(b)(13) covers personal contact info) and AG opinions (covering DOB, SSN, medical info, etc.).

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (required redactions)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation-records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435 (2007)
• Young v. Rice, 308 Ark. 593 (1992)
• Stilley v. McBride, 332 Ark. 306 (1998)
• Ops. Att'y Gen. 2020-049, 2016-031, 2013-022, 2012-136

Source

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

Original opinion text

Opinion No. 2021-062
July 26, 2021
Jodi L. Russell
c/o FOIA Coordinator
City of Little Rock Human Resources
500 West Markham, Suite 130W
Little Rock, AR 72201

Dear Ms. Russell:

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 ("the City") has received a request under the FOIA for "the leave time balances and activity, and attendance information for everyone in the 311 Department." The records custodian has notified you of the request and of the City's determination that "this information is part of your personnel records and is releasable pursuant to the [FOIA]." The custodian has also stated, "No sensitive or personal identifying information, such as address, date of birth, telephone number, or social security information is releasable." You object to the release of your records, and you seek my opinion regarding the custodian's decision.

RESPONSE

Because I have not seen any records that would be responsive to the 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. I can note, however, that this office has consistently opined that attendance and leave records constitute personnel records that should generally be disclosed pursuant to the FOIA. Additionally, the custodian has correctly decided that sensitive personal information is not releasable. Consequently, it is my opinion that the custodian's decision to release the requested records with appropriate redactions is likely consistent with the FOIA.

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, 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.

Although I have not seen any records that would be responsive to the FOIA request, the custodian has determined that the records being sought are personnel records. This office has consistently opined that leave and attendance records constitute personnel records. Thus, in my opinion, the custodian is likely correct in classifying the records being sought as "personnel records." Accordingly, I will limit my discussion to records of that type.

The FOIA does not define "personnel records," but this office has consistently opined that the term refers to all records other than "employee evaluation or job-performance records" that pertain to individual employees. 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.

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, employee personnel numbers, marital status, dates of birth, social security numbers, medical information, undercover officer information, driver's license information, insurance coverage, tax information, payroll deductions, and banking information.

III. Application.

At issue is a request for "the leave time balances and activity, and attendance information for everyone in the 311 Department." Because I have not reviewed the actual records at issue, I am unable to opine definitively on whether the custodian's decision is consistent with the FOIA. But this office has consistently opined that attendance and leave records are generally disclosable under the foregoing balancing test:

Whether there is arguably a greater than de minimus privacy interest in the fact that an employee used sick or annual leave, that interest is, in my opinion, outweighed by the balancing test's second step. Specifically, disclosing whether an employee used annual or sick leave sheds light on an agency's performance of its duties because, among other things, it shows whether the agency is properly adhering to the policies limiting the amount of leave (whether annual or sick) that employees may take.

It is therefore my opinion that the custodian's decision to release your leave and attendance records with exempt information redacted is likely consistent with the FOIA.

Finally, 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 identity or subjective motive for wanting the record.

Sincerely,

LESLIE RUTLEDGE
Attorney General