Can a city in Arkansas release the names, job titles, and salaries of its employees in response to a FOIA request, even when an employee objects?

Plain-English summary

Someone asked the City of Fort Smith for a roster of all current employees, with names, job titles, and salary increases since 2015. Fort Smith's HR department decided to release the records. Richard Hamrick, an employee whose information was in the records, objected and asked the AG to either block the release or strip his name from the disclosure.

Attorney General Leslie Rutledge said the city's decision to release the records was consistent with Arkansas FOIA. The opinion is a short companion to Op. Att'y Gen. 2021-084 (issued one week earlier in response to a different Fort Smith employee, Bill Striplin, who raised the same objection). Both opinions reach the same conclusion using the same reasoning: under Arkansas's personnel-records exception in Ark. Code Ann. § 25-19-105(b)(12), basic employment information of public workers (name, job, salary) is disclosable because the public interest in knowing how tax money is spent outweighs the worker's privacy interest in keeping that information confidential.

Hamrick had also asked whether the records could be released without identifying his particular job and salary. The AG said she had no statutory authority to answer that part. The FOIA review statute lets the AG opine only on whether the custodian's decision was consistent with FOIA, not on alternative formats the requester or subject might prefer.

What this means for you

If you are a public employee in Arkansas

Based on this opinion and the long line of opinions it cites, your name, job title, and salary are public records. Your safety concerns about release are not enough on their own to defeat disclosure. The Arkansas Supreme Court's two-step balancing test (Young v. Rice) starts with a thumb on the scale for disclosure. Even getting past the "more than de minimis privacy interest" step requires showing real personal harm, and even then the public interest typically wins for ordinary employment data.

What you can usually keep private under § 25-19-105: home address, personal phone number, personal email, date of birth, Social Security number, marital status, dependents, payroll deductions, banking information, and (for officers in undercover roles) identifying information. The custodian must redact those even when releasing the rest.

If you are a records custodian

This opinion adds to a long list confirming that the names-titles-salaries triplet is releasable. When an employee objects under § 25-19-105(c)(3)(B)(i), you and the employee can both seek an AG opinion within 24 hours of the request. Expect the AG to side with disclosure on basic employment information. Make sure your release scrubs the items in the bullet list of redactions: personal contact info, employee ID number (if used for computer access), DOB, SSN, marital status, height and weight (unless tied to a job condition), insurance, tax info, payroll deductions, and banking information.

If you are filing a FOIA request

Use § 25-19-105(b)(12) and the Young v. Rice balancing test as your starting point. Public-employee names, job titles, and salary data are routinely disclosable. If the custodian withholds, ask which exception they are claiming and request a custodian opinion under § 25-19-105(c)(3)(B)(i) on whether withholding is consistent with FOIA.

If you are an Arkansas journalist

The salary roster of any city, county, or school district is in your fair-game zone. The AG has reaffirmed the rule consistently from at least the 1990s through 2021. If a custodian denies, point them to this opinion and 2021-084 for chapter and verse.

Common questions

Q: Can my employer use the FOIA review process to keep my salary secret?
A: No, not for ordinary names-titles-salaries data. The personnel-records balancing test almost always tips toward disclosure for that information. Your employer can ask the AG, but the AG's standard answer is "release."

Q: What if I'm worried about safety?
A: Generic safety concerns are usually not enough. The AG's review is objective: it asks whether the records, in the abstract, give rise to a clearly unwarranted invasion of privacy, not whether any particular subject feels uneasy. If you have a documented safety threat, you can take that to a court for an injunction, but the AG opinion process won't help you.

Q: Can the records be released "anonymized" so they don't tie to particular employees?
A: The AG declined to address that. Her statutory authority under § 25-19-105(c)(3)(B)(i) is only to say whether the custodian's actual decision matches FOIA. She has no authority to design alternative formats.

Q: Who else uses this rule?
A: Pretty much every public agency in Arkansas: cities, counties, school districts, state agencies. Names, titles, and salaries of public employees are disclosable. The opinion's footnotes cite over a dozen prior AG opinions reaching the same result back to 1990.

Q: What about elected officials' personal references on a job application?
A: A footnote in 2021-084 (the parent opinion) says contact information for non-elected public employees serving as personal references should be redacted. Elected officials in their public role are different, since their official contact info is publicly known.

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 to inspection and copying. 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." A separate exception in § 25-19-105(c)(1) covers "employee evaluation or job performance records," releasable only after a final administrative resolution of suspension or termination, plus a compelling public interest.

The Arkansas Supreme Court's controlling case on the personnel-records exception is Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), which sets up a two-step balancing test:

1. Does the record'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: the burden is on the person resisting release. The Arkansas Supreme Court reinforced this in Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), and Pulaski County v. Arkansas Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007). Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, settled the definition of "employee evaluation or job performance records."

The custodian-opinion procedure in § 25-19-105(c)(3)(B)(i) lets the records custodian, the requester, or the subject of certain employee-related records seek a written AG opinion within strict time limits. The AG may opine only on whether the custodian's decision is consistent with FOIA.

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 of public employees)
• 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
• Op. Att'y Gen. 2021-084 (parent opinion, same disclosure analysis)

Source

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

Original opinion text

Opinion No. 2021-087
October 18, 2021
Mr. Richard Hamrick
c/o Rick Lolley, Director
Fort Smith Human Resources
P.O. Box 1908
Fort Smith, AR 72902
Dear Mr. Hamrick:
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 the requested information because you believe its release may subject you and
your family to possible harm. You ask whether the custodian may release the
requested information, and if so, whether such information may "be provided in
such a way as to not identify a particular employee's job position and/or salary."

RESPONSE

My statutory duty is to state whether the decision of the custodian of records is
consistent with the FOIA. I am not authorized to address specific questions posed
by the custodian, subject, or requester. Accordingly, I can only respond to your
first question, in which you request my opinion as to the custodian's decision.

This request, along with your objections to the release of your employment-related
records, is virtually identical to the request I responded to in Op. Att'y Gen. 2021-084,
published on October 11, 2021. As set out in that opinion, 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.

The legal analysis provided in Opinion 2021-084 and its application to your
request are the same. Therefore, I will not repeat the opinion herein, but instead
refer you to the enclosed Opinion 2021-084 for the substantive analysis.

Sincerely,
LESLIE RUTLEDGE
Attorney General

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