Can a Fort Smith city employee block release of her name, salary, hire date, and position under the Arkansas FOIA?

Plain-English summary

A FOIA requester asked the City of Fort Smith for 2021 records showing each employee's name, salary, hire date, position title, bonus, overtime, and gross wages. The city's custodian decided to release the records but to redact "sensitive personal information" like home address, date of birth, telephone number, and Social Security data. Jane Ann Cantrell, a city employee whose information would be in the records, objected to the release and asked Attorney General Leslie Rutledge to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the subject of certain employee records ask the AG whether the custodian's decision is consistent with the FOIA.

The AG concluded the custodian's decision is mostly correct. Without seeing the actual records, the AG could not opine on document-by-document releasability, but as a general matter the requested categories (names, salaries, hire dates, position titles) are subject to FOIA inspection and the custodian was right to plan to release them. The custodian was also right that sensitive personal information has to be redacted. The employee's personal objection, by itself, is not a reason to withhold otherwise public records, because Arkansas's Young v. Rice test for "clearly unwarranted invasion of personal privacy" is objective and tilted toward disclosure.

The opinion lays out the FOIA framework. A document is releasable if it (1) is in the hands of a public entity, (2) qualifies as a public record, and (3) is not protected by an exception. Personnel records are exempt only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy" (Ark. Code Ann. § 25-19-105(b)(12)), which under Young v. Rice is a balancing test starting with disclosure tilted in. Employee evaluation or job-performance records are exempt unless an employee was suspended or terminated, the disciplinary action is final, the records formed the basis for the decision, and there is a compelling public interest. Thomas v. Hall defines employee evaluation records as records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance.

For routine public-employee compensation and identification data, the privacy interest is weak and the public interest in knowing how tax dollars are spent is strong, so the records are typically releasable. The AG also itemized the categories of "sensitive personal information" that must be redacted: personal phone numbers, personal email, home address, employee personnel number, marital and dependent information, date of birth, Social Security number, medical information, undercover officer identifying information, driver's license details, insurance coverage, tax withholding, payroll deductions, and banking information.

What this means for you

If you're a public employee whose records have been requested

You have the statutory right to ask the AG for an opinion (you used it). But your personal objection alone does not block release. The test is objective: would release shed light on government, and is the privacy intrusion serious? For routine pay and position data, the answer is usually that release wins. Sensitive PII (DOB, SSN, address, phone) gets redacted; the rest typically goes out.

If you're a city clerk or records custodian

The defaults are: release names, salaries, hire dates, position titles. Redact home address, personal phone, personal email, DOB, SSN, medical info, banking info. If a record is an "employee evaluation" record (created by the employer to evaluate the employee), it usually stays confidential unless there has been a final suspension or termination, the record was the basis for that decision, and there is a compelling public interest.

If you're a journalist or FOIA requester

Routine compensation and headcount data is releasable. The custodian can take a few business days to redact, but cannot use the subject's objection to withhold the records entirely. If a custodian is stalling, the AG opinion request procedure under § 25-19-105(c)(3) is one of your tools.

If you're a public-entity attorney

Train custodians on the Young v. Rice balancing test and the Thomas v. Hall definition of employee evaluation records. The most common error is treating any document that mentions an employee as a "personnel record," which then gets withheld in full. The proper approach is to release with redactions of specific categories.

Common questions

Q: Can my employer keep my salary secret if I ask?
A: No. Public employee salaries are routinely releasable in Arkansas under FOIA. The privacy test is objective and weighted toward disclosure; an individual objection does not change the analysis.

Q: What's the difference between a "personnel record" and an "employee evaluation record"?
A: Personnel records are basically everything in your file other than evaluations: applications, payroll info, transfers, demotions, discipline records, leave requests. Employee evaluation records are documents created by the employer specifically to evaluate your job performance. The two have different release tests; evaluations are much harder to obtain.

Q: My personnel record contains my home address. Will that be released?
A: No. Personal contact information of public employees, including home address, personal phone, and personal email, is required to be redacted under Ark. Code Ann. § 25-19-105(b)(13).

Q: Can the city consider why someone is asking before releasing my records?
A: Generally no. Arkansas FOIA is identity-blind: the requester's identity and motive are irrelevant to whether a non-exempt record must be released. The custodian asks an objective question, would release shed light on government, not who's asking and why.

Q: What if the custodian releases something they shouldn't have?
A: Depending on what was released, you may have a state-tort or federal privacy claim, but that is for litigation. The AG opinion is advisory and does not by itself create or block a claim.

Background and statutory framework

Arkansas FOIA is one of the more open public records regimes in the country. The default presumption is that documents in the hands of a public entity are releasable; exceptions are narrow and the burden of justifying withholding is on the entity. Section 25-19-105(c)(3)(B)(i) gives the subject of certain employee records (along with the requester and custodian) standing to ask the AG to opine on whether a custodian's decision is consistent with the FOIA. The AG's opinion is advisory; it does not bind a court but is influential.

Two key cases shape the analysis. Young v. Rice sets the test for "clearly unwarranted invasion of personal privacy": is the information of a personal or intimate nature giving rise to a greater-than-de-minimis privacy interest, and if so, is that interest outweighed by the public interest in disclosure, with the scale tilted toward disclosure. Thomas v. Hall defines what counts as an "employee evaluation or job performance record" for purposes of the § 25-19-105(c)(1) exception: documents created by or at the behest of the employer to evaluate the employee, detailing performance.

The AG opinion repeatedly emphasizes that determinations are fact-intensive and made by the custodian in the first instance. The AG's role is to give the legal framework and review the custodian's decision when it has been escalated.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation exception)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (subject's right to AG opinion)
• Ark. Code Ann. § 25-19-105(f)(2) (segregable portion rule)

Cases:

• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 370 Ark. 435, 260 S.W.3d 718 (2007), rebuttable public-record presumption
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), unwarranted-invasion balancing test
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), narrow construction of exceptions
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387, definition of employee evaluation records

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2022-005

January 20, 2022

Jane Ann Cantrell
c/o Rick Lolley, Human Resources Director
City of Fort Smith
P.O. Box 1908
Fort Smith, AR 72902

Dear Ms. Cantrell:

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. 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 regarding the salary/compensation, hire date, position titles, and names of any and all employees for the year 2021. You have attached a memorandum from the custodian of the records in which he has determined that the requested records are personnel records that are releasable pursuant to the FOIA, but that "sensitive personal information, such as address, date of birth, telephone number, or social security information," will not be released. As the subject of the requested records, you object to the release of the information on the grounds that the requester is asking for too much personal information. You ask for an opinion as to whether the custodian's decision regarding the release of the records is consistent with the FOIA.

RESPONSE

Because I have not seen any records that would be responsive to your 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 type of information requested (salary/compensation, hire date, position titles, and employee names) is subject to inspection and copying under the FOIA. Additionally, the custodian has correctly decided that sensitive personal information is not releasable.

I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records 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 specific 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 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.

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 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 (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.

Additionally, some employee-related records constitute "mixed records," i.e., records that constitute (1) more than one person's evaluation, (2) at least one person's evaluation and at least one other person's personnel record, or (3) more than one person's personnel record.

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. The custodian in this case has determined that the requested records are personnel records. Although I have not seen the records, I have no information to suggest that the custodian's decision to classify them as personnel records is incorrect. Indeed, I can state generally that records of employees' names, salaries, hire dates, and position titles likely constitute personnel records.

The custodian has determined that the requested records are subject to release, but that "sensitive personal information, such as address, date of birth, telephone number, or social security information" is not releasable. While I cannot opine on the release of any specific records here, I can state that the bulk of the information requested (salary/compensation, hire date, position titles, and employee names) is subject to inspection and copying under the FOIA. I can also state that the custodian has correctly decided that sensitive personal information is not releasable.

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 identity or subjective motive for wanting the record. Finally, your objection to the disclosure of the requested information is not a valid legal reason for the custodian to withhold the records.

Sincerely,

LESLIE RUTLEDGE
Attorney General