Can a city refuse to release records of federal pandemic relief payments to its employees under the Arkansas FOIA?

Plain-English summary

The City of Cherokee Village received a FOIA request from the spouse of a city employee for records of American Rescue Plan Act (ARPA) payments to city employees. The City notified employees, some did not object, and those records were released. Other employees objected, and the City asked the AG whether honoring the objection was required.

Attorney General Leslie Rutledge concluded that the City's apparent decision to classify the ARPA payment records as personnel records and to release them was consistent with the Arkansas FOIA. ARPA payments to public employees fit within the FOIA's "personnel records" category, which is subject to the Young v. Rice balancing test: disclosure unless it would constitute a clearly unwarranted invasion of personal privacy. Public-employee compensation records typically clear that test in favor of disclosure, especially when the records show payment amounts only and not intimate financial details.

The opinion also stated the standing rule that a FOIA requester's identity or motive is generally irrelevant. Even if the requester is suspected of wanting to "initiate ill feelings among employees," that suspicion does not change the legal analysis. The test is objective: do the records shed light on the workings of government?

Currency note

This opinion was issued in December 2021. The Arkansas FOIA has been actively amended in subsequent sessions, particularly in 2023 with significant reforms affecting personnel and evaluation records. Verify the current text of § 25-19-105(b) and (c) before relying on this analysis. The balancing-test framework from Young v. Rice remains good law as of this opinion.

What this means for you

If you are a city, county, or school district records custodian

When you receive a FOIA request for payment records (salary, bonus, ARPA distribution, retention pay, COVID supplemental pay), based on this opinion, the default analysis is:

1. The records are personnel records under § 25-19-105(b)(12).
2. Apply the Young v. Rice balancing test, with the scale tipped in favor of disclosure.
3. Payment amounts on their own typically present a de minimis privacy interest. Disclose.
4. Redact specific items the AG has flagged: home addresses, personal phone numbers, social security numbers, banking information, dates of birth, marital status, dependent information, medical information, drivers' license numbers, payroll deductions.
5. Notify employees per § 25-19-105(c)(3) and give them a chance to object, but objection alone does not change the analysis.

If you are a public employee facing an ARPA-payment disclosure request

Based on this opinion, you cannot block disclosure of the payment amount itself by objecting. The AG's analysis treats payment records as low-privacy and high-public-interest. You can ask the custodian to redact items that have been recognized as private (home address, SSN, bank account, etc.). You can also seek your own AG opinion under § 25-19-105(c)(3)(B)(i) if you believe the custodian is misclassifying the record.

If you are a journalist or watchdog requesting records

Per the opinion, your motive does not matter. You do not have to justify your request, and the custodian cannot use suspected motive to deny access. The objective test asks whether the records shed light on government operations, which payment records do.

If you are a city attorney advising on a denial

A blanket denial of ARPA-payment records based on employee objection is unlikely to be consistent with the FOIA. Build the redaction list from the AG's specific catalog and release the rest.

Common questions

Q: Are ARPA payments to public employees public records?
A: Per this opinion, yes. They are payment records held by a public entity, presumptively public under § 25-19-103(7)(A), and analyzed as personnel records subject to the Young v. Rice balancing test.

Q: Can a public employee block release by objecting?
A: No. The notification requirement in § 25-19-105(c)(3) gives employees a chance to be heard, but the substantive test remains the balancing test. An objection that does not surface a privacy interest beyond de minimis will not change the result.

Q: Does it matter who is asking?
A: Generally no. The opinion reaffirmed that the requester's identity and subjective motive are irrelevant to whether a record must be released. The custodian can consider motive only to identify a public interest the custodian had not previously seen.

Q: What gets redacted from a personnel record before release?
A: The opinion lists specific items: personal contact information (home address, personal phone, personal email) under § 25-19-105(b)(13), employee personnel number, marital status and information about dependents, dates of birth, social security numbers, medical information, undercover law enforcement identifying information under § 25-19-105(b)(10), driver's license numbers, insurance coverage, tax information or withholding, payroll deductions, and banking information.

Q: Are evaluation records different from personnel records?
A: Yes. "Employee evaluation or job-performance records" under § 25-19-105(c)(1) have a four-part disclosure test: suspension or termination, finality of the personnel action, the records formed a basis for the decision, and a compelling public interest. The opinion noted ARPA payment records were not evaluation records, so that stricter test did not apply.

Background and statutory framework

The Arkansas FOIA has two main paths for employee-related records:

• Personnel records under § 25-19-105(b)(12): open to inspection except where disclosure would constitute a clearly unwarranted invasion of personal privacy. The Arkansas Supreme Court in Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), set up the balancing test, with the scale tipped in favor of public access. The custodian first asks whether the privacy interest is more than de minimis. If not, disclose. If yes, the custodian then weighs the privacy interest against the public's interest in disclosure, with the burden on the person resisting disclosure (Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)).

• Employee evaluation or job-performance records under § 25-19-105(c)(1): closed unless all four elements are met (suspension or termination, finality, relevance to the decision, compelling public interest).

ARPA payments to public employees fit naturally into the personnel category. They reflect compensation decisions, are routine to track, and are not generated to evaluate the employee. The opinion's analytical move is to recognize that, while custodians must follow the procedural notice requirement under § 25-19-105(c)(3), the substantive disclosure decision still rests on the balancing test.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement 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) (evaluation/job-performance records, four-part test)
• Ark. Code Ann. § 25-19-105(c)(3) (employee notification requirement)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)

Cases:

• Young v. Rice, 308 Ark. 593, 598, 826 S.W.2d 252, 255 (1992) (personnel records balancing test)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (burden on party resisting disclosure)
• Pulaski Cnty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 440-41, 260 S.W.3d 718, 722 (2007) (rebuttable presumption of public-record status)

Source

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

Original opinion text

Opinion No. 2021-100
December 27, 2021

The Honorable Russell Stokes
Office of the Mayor
P. O. Box 129

2 Santee Drive

Cherokee Village, AR 72525

Dear Mayor Stokes:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the records custodian and on behalf of several employees, 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 Cherokee Village received a request under the FOIA from the spouse of an employee for the release of American Rescue Plan Act (ARPA) payments made to city employees. You state that the payments were made as either two separate payments or one lump-sum payment, at each employee's option. It is my understanding that the City notified employees of the FOIA request and that employees who did not object had their payment information released, but some employees have objected. You ask, on the objecting employees' behalf, whether you should honor their request not to release their payment records. You state that the individual who made the FOIA request appears to want to initiate ill feelings among employees.

RESPONSE

My duty under subdivision 25-19-105(c)(3)(B) is to state whether the custodian's decision as to the release of "personnel or evaluation records" is consistent with the FOIA. Because I have not seen any records that the City has determined to 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. I can state generally, however, that the custodian's apparent decision in this case that the payment records are personnel records that are subject to release appears consistent with the FOIA. A FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. And I have no information that would support a reversal of the custodian's decision to release the records.

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 Cherokee Village, 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 gather from the limited information before me that the records at issue are properly classified as personnel records. I will, therefore, limit my discussion to records of that type.

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 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;
• Marital status of employees and information about dependents;
• Dates of birth of public employees;
• Social security numbers;
• Medical information;
• 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;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

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.

In this instance, the City notified the employees that their records would be released. Thus, while it is not entirely clear from your correspondence, I gather the City decided that the ARPA payment records are personnel records that are subject to release under the test described above. I have no reason to believe that the custodian's decision to classify the payment records as personnel records is incorrect.

Nor do I have any information that would support a reversal of the custodian's apparent determination that the records are subject to release under the applicable balancing test. There is nothing before me to suggest that a clearly unwarranted invasion of privacy would result from their release. While I have not reviewed the actual records at issue, I take it from your correspondence that they contain payment amounts only and do not reveal any intimate financial details. Additionally, 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.

In sum, because I have not seen any of the records at issue, I cannot definitively opine on whether the custodian's decision in this matter is consistent with the FOIA. However, based on the limited information before me, the custodian's decision to release the records in question appears consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General