Can a Fort Smith employee block release of her compensation data because she does not know how the requester will use it?

Plain-English summary

This is the third of four parallel AG opinions issued in January 2022 to Fort Smith employees who objected to the city's planned release of 2021 compensation records. The custodian had decided to release names, salaries, hire dates, and position titles while redacting sensitive personal information (address, date of birth, telephone number, Social Security data). Tracy Koleszar-Burbee filed an objection on the ground that she did not know how the FOIA requester would use the information.

Attorney General Leslie Rutledge concluded the custodian's decision was consistent with the FOIA. The legal core: routine public-employee compensation data is releasable; sensitive personal information must be redacted; and the requester's identity or motive is generally irrelevant to the analysis under Arkansas FOIA. As the AG observed in 2022-005 (which this opinion attaches and incorporates), "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." Not knowing how the requester plans to use data does not give the record subject veto power; it just means the custodian is not allowed to ask.

The full legal framework (the Young v. Rice balancing test for personnel records, the Thomas v. Hall test for employee evaluation records, the categories of sensitive personal information that must be redacted) is set out in Op. Att'y Gen. 2022-005 and incorporated here by reference.

What this means for you

If you're a public employee with similar concerns

The "I don't know how the requester will use this" objection is one of the most common reasons people give for trying to block FOIA release. Arkansas FOIA does not let custodians (or subjects) ask why a requester wants public records. The legislature could have written a "good cause" requirement into the statute and chose not to. The recourse for actual misuse is whatever civil or criminal claim is available, not advance suppression of disclosure.

If you're a custodian

When a record subject's only objection is that the requester's purpose is unknown or potentially improper, you do not have a legal basis to withhold. Document the analysis, redact the standard sensitive-personal-information categories, and release the rest within the FOIA's three-business-day default response window.

If you're a FOIA requester

If a custodian asks why you want the records, you do not have to answer (Arkansas FOIA is identity-blind). If your request is being slow-walked while a subject objects, point at this opinion and 2022-005, and consider escalating under § 25-19-107 (judicial enforcement).

Common questions

Q: Why don't I have to say why I want the records?
A: Arkansas FOIA, like most state and federal FOIA-style laws, treats public records as belonging to the public. The requester's identity and motive are generally irrelevant. A handful of narrow exceptions exist, but the default rule is that anyone can ask for any non-exempt public record without explaining why.

Q: Can a custodian volunteer my data to a stranger?
A: A custodian is required to respond to FOIA requests but cannot proactively dump records on the public unless directed to do so. The point of FOIA is that the public asks; the custodian responds within the law. You can ask in advance whether your data has been requested, and (as Tracy did here) ask the AG to review the custodian's decision before release.

Q: What if a requester then misuses the data?
A: Misuse can be its own legal violation (identity theft, harassment, fraud) and is addressed by separate causes of action, not by blocking release. Arkansas FOIA does not authorize the custodian to act as a gatekeeper for downstream behavior.

Background and statutory framework

The key statutory hook is § 25-19-105(c)(3)(B)(i), which gives a record subject the right to ask the AG for an opinion before the custodian releases. The AG must respond promptly. The opinion is advisory, but tends to settle the matter in practice. Each subject can file independently, which is why four near-identical opinions exist for the same Fort Smith request.

The legal framework, applied to Tracy's objection: not knowing what the requester will do is not in any of the statutory exceptions and is not a "personal or intimate" privacy interest under Young v. Rice. It does not raise the privacy interest above de minimis, so the Young balancing test ends at the first step.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-101 et seq. (Arkansas FOIA)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (record subject's right to AG opinion)

AG opinion incorporated by reference:

• Op. Att'y Gen. 2022-005 (full legal framework for FOIA disclosure of employee compensation 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. 2022-008

January 24, 2022

Tracy Koleszar-Burbee
c/o Rick Lolley, Human Resources Director
City of Fort Smith
P.O. Box 1908
Fort Smith, AR 72902

Dear Ms. Koleszar-Burbee:

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 because you are unaware of how the requester will use the information. You ask 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 (employee names, salary/compensation, hire date, and position titles) is subject to inspection and copying under the FOIA. Additionally, the custodian has correctly decided that sensitive personal information is not releasable.

Please note that I have attached a previous opinion of this office, Op. Att'y Gen. 2022-005, that explains the legal standards that must be applied to determine whether the employee-related records in question must be disclosed pursuant to the FOIA. I will not repeat those standards herein, but instead refer you to the attached opinion for the applicable definitions and tests. It is my opinion that the custodian appears to have properly applied these legal standards in deciding to release the records at issue while withholding "sensitive personal information." Moreover, the objection you have raised is not a legally sufficient reason under the FOIA to withhold the records.

Sincerely,

LESLIE RUTLEDGE
Attorney General