Can the City of Fort Smith release a list of all employees' names, job positions, and salary increases since 2015 over an employee's objection that release would harm or embarrass him?

Plain-English summary

Someone filed an Arkansas FOIA request with the City of Fort Smith for "records that show all current employees' salaries, with their names and job position and any salary increases since 2015." The HR custodian decided to release the records, with sensitive personal info (home addresses, DOBs, phones, SSNs) redacted. Bill Striplin, a Fort Smith employee, objected to release of his name in conjunction with the salary data, arguing it would subject him to "harm and embarrassment unnecessarily."

Attorney General Leslie Rutledge said the city's decision to release was consistent with FOIA. The reasoning: public employees' names, job positions, and salaries are personnel records under § 25-19-105(b)(12), and the long-running line of AG opinions (going back to the 1990s) treats their disclosure as falling well below the "clearly unwarranted invasion of personal privacy" threshold under the Young v. Rice two-step balancing test. The public's interest in knowing how its tax dollars compensate public employees is substantial, and any privacy interest the employee has does not outweigh it. The harm-and-embarrassment objection is subjective, and the personnel-records test is objective.

This opinion is the foundational analysis the AG referred to in two companion opinions issued the same day (Op. Att'y Gen. 2021-085 to Detective Charity Abbott and 2021-086 to Captain Ronald Gallant) and a follow-up (2021-087 to Richard Hamrick). All four involve the same Fort Smith roster request and the same subject objection.

What this means for you

If you are a public employee

Names, titles, and salaries of public-sector workers in Arkansas are routinely releasable under FOIA. A subjective concern about embarrassment, social discomfort, or even threats does not by itself defeat release. The Arkansas Supreme Court's decision in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), set up a balancing test where the thumb is on the scale for disclosure of public employees' job-related data. The AG and the Court have applied that test consistently for three decades.

What you can keep private under § 25-19-105: home address, personal phone, personal email, DOB, SSN, marital status, dependents, payroll deductions, banking information, and (for officers in undercover roles) identifying info. The custodian must redact these before release. If you have a documented safety threat (not merely a subjective fear), that may be a basis for separate court action; it is not a basis the AG can use to block release.

If you are a records custodian

When you get a "names, titles, and salaries" FOIA request:

1. Confirm the request is from a covered entity for public records (almost always yes for public bodies).
2. Apply the Young v. Rice balancing test for the personnel-records exception. Names, titles, and salaries fall on the "release" side.
3. Run the standard redaction list before release: personal contact info, employee personnel number, marital status, DOB, SSN, medical info, undercover identifiers, driver's license, insurance, tax/withholding, payroll deductions, banking info.
4. Subject objections to release of the name-title-salary triplet are not a basis for withholding. Document your decision and proceed.

The custodian-opinion procedure under § 25-19-105(c)(3)(B)(i) lets the subject ask for an AG review of your decision. The AG's standard answer for this fact pattern is "release."

If you are a journalist or FOIA requester

Salary roster requests are at the easy end of FOIA. Names, titles, salaries, and historic increases are reliably available from any Arkansas city, county, school district, or state agency. If a custodian denies, point to this opinion and the long preceding line (Ops. Att'y Gen. 2012-014, 2011-132, 2011-045, 2002-107, 96-205, and many more) confirming the rule.

Common questions

Q: Can I block release just by objecting?
A: No. Subject objection initiates the AG-review process under § 25-19-105(c)(3)(B)(i), but it does not block release. The AG's standard answer for names, titles, and salaries is that release is consistent with FOIA. Subjective objections from the subject are not a legal basis for withholding.

Q: Why is the public interest so high in this kind of information?
A: Because the public is the employer. As the AG put it (citing earlier opinions), "[t]he 'public' is the employer of these individuals, and pays their salaries. It is not unreasonable to expect that an employer would have an interest in knowing whom it employs." The Young v. Rice balancing test treats this employer-of-employer relationship as the source of the public-interest weight.

Q: What if my role is sensitive (e.g., domestic violence shelter staff, undercover officer)?
A: Different analysis. § 25-19-105(b)(10) protects identifying information for officers currently working undercover. Other statutes (and possibly court orders) may protect specific safety-sensitive employees. Talk to your agency counsel.

Q: What about pay grades, not just salaries?
A: Same answer. Pay grade is part of basic employment information for a public employee. The AG mentions "pay grade" in the question framing without distinguishing it from salary.

Q: Is salary information for elected officials handled differently?
A: Generally even more open. Elected officials' compensation is publicly known and frequently set by ordinance or statute. The AG has not treated their salary as carrying any meaningful privacy interest.

Background and statutory framework

The Arkansas Freedom of Information Act, Ark. Code Ann. § 25-19-101 et seq., creates a presumption that records held by public bodies are open. The personnel-records exception in § 25-19-105(b)(12) keeps personnel records out of public view "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy."

Under Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992):

1. Does the document's content rise above a de minimis privacy interest?
2. If yes, does the public interest in disclosure outweigh that privacy interest?

The presumption tilts toward disclosure, with the burden on the person resisting release (Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)). The Arkansas Supreme Court reinforced openness in Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007).

Names, titles, and salaries of public employees fail step 1 in most cases (no greater-than-de-minimis privacy interest in basic employment data) and lose step 2 even when step 1 is met (public interest in employer-side compensation transparency outweighs personal privacy).

Citations

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-103(7)(A) (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 exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (custodian-opinion procedure)
• 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
• Ops. Att'y Gen. 2012-014, 2011-132, 2011-045, 2011-114, 2002-107, 96-205 (names, titles, salaries treated as personnel records)
• Op. Att'y Gen. 2008-050 (and the line cited therein) (public interest in salary outweighs privacy)
• Op. Att'y Gen. 2021-085, 2021-086, 2021-087 (companion opinions on the same Fort Smith roster request)

Source

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

Original opinion text

Opinion No. 2021-084
October 11, 2021
Mr. Bill Striplin
c/o Rick Lolley, Director
Fort Smith Human Resources
P.O. Box 1908
Fort Smith, AR 72902
Dear Mr. Striplin:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

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. 2021). 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 Fort Smith has received a request
under the FOIA for "records that show all current employees' salaries, with their
names and job position and any salary increases since 2015." The records custodian
has determined that the requested records are releasable, and has stated that "[n]o
sensitive personal information such as address, date of birth, telephone number or
social security information will be released." You object to the release of your name
in conjunction with the other requested records because you believe this release may
subject you "to harm and embarrassment unnecessarily." You ask whether the
decision to release the requested records, specifically your name, is consistent with
the FOIA.

RESPONSE

Although I have not seen the records that the custodian intends to release, I believe,
based on your representation, that the custodian's decision to release your name, job
position, and salary, including salary increases, is consistent with the FOIA and with
the long-held opinion of this office.

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 Fort
Smith, 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. In this instance, I
believe it is clear that the relevant exception is the one for personnel records. I will
therefore limit my discussion to the test for disclosure relating to those types of
records.

The FOIA does not define the term "personnel records." But this office has
consistently opined that "personnel records" are all records other than employee
evaluation and job performance records that pertain to individual employees.
Whether a particular record meets this definition is, of course, 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 any such records may
consider release of the records an unwarranted invasion of personal privacy is
irrelevant to the analysis because the test is objective. And 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).

III. Application.

This office has long and consistently opined that the release of public employees'
names, job positions, and salary must be evaluated under the provision of the FOIA
applicable to "personnel records," and that the release of such information
generally does not rise to the level of a clearly unwarranted invasion of personal
privacy. At issue here is whether disclosing documents that reflect your name, job
position, and salary would amount to a "clearly unwarranted invasion of personal
privacy" under this balancing test. In my opinion, it does not. It has long been the
opinion of this office that the public interest in this type of basic employment
information is substantial and any potential privacy interest does not outweigh it.

Sincerely,
LESLIE RUTLEDGE
Attorney General