Did the Arkansas AG approve release of a former employee’s entire personnel file with only family and Social Security details redacted?

Plain-English summary

An attorney for a former employee objected to a custodian’s plan to release the employee’s personnel file after removing Social Security numbers and the names and birth dates of the employee’s children. The Arkansas Attorney General did not approve or reject release of the file. The attorney had not supplied the records or explained the objection, so the office could not determine whether any particular document, or part of one, should be disclosed.

The AG instead enclosed an earlier opinion explaining the legal tests a custodian had to apply. That enclosure addressed a separate email-chain dispute. Its factual conclusions about those emails were not a ruling on this former employee’s file.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did the AG authorize release of the whole personnel file?

A: No. The office said it could not decide the release of specific records without seeing them or knowing why the subject objected.

Q: Was redacting Social Security numbers and children’s details enough?

A: The opinion did not decide that. Those were the custodian’s planned redactions, not a complete redaction list approved for the unseen file.

Q: Why was a different AG opinion attached?

A: The AG supplied an earlier opinion to explain the personnel-record and employee-evaluation tests the custodian needed to apply. That earlier opinion concerned different records.

Background and statutory framework

Arkansas’s FOIA allowed a records subject, requester, or custodian to seek an AG review of a decision involving personnel or employee-evaluation records. Here, the request gave too little information for a document-specific ruling. The signed 2013 letter stopped at that point and attached Opinion No. 2012-073 as general guidance. The original-text section preserves both the letter and its enclosure so readers can distinguish their holdings.

Citations and references

• The signed letter invoked A.C.A. § 25-19-105(c)(3)(B) for the AG review process.
• Opinion No. 2012-073 was the enclosed guidance on record classification and disclosure.

Source

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

Original opinion text

STATE OF ARKANSAS
Tue ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2013-011

February 7, 2013

Darrell F. Brown, Jr.
Attorney at Law

Post Office Box 241519
Little Rock, Arkansas 72223

Dear Mr. Brown:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the subject’s attorney, is based on A.C.A. § 25-19-105(c)(3)(B)G) (Supp. 2011). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation 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 letter indicates that someone has requested your client’s personnel file. The custodian has notified you saying that he intends to release the entire file after redacting “social security numbers and the names and dates of birth of [your client’s] children.” Your client objects to the release of these records, though you do not say why. You have asked, on your client’s behalf, for my opinion on whether the custodian’s decision to release this material is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. Because I have not seen any of the records at issue and because you do not indicate the grounds for your client’s objection, I cannot definitively opine about the release of any specific documents. Instead, I can simply explain the applicable law that the custodian must apply when deciding whether to release your client’s records. To that end, I have enclosed Opinion No. 2012-073, which provides such an explanation.

323 CENTER STREET, SUITE 200 * LiTTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE ° http://www.ag.state.ar.us/

Darrell F. Brown, Jr.
Opinion No, 2013-011
Page 2

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,
ASUSTIN MeDANIE

Attorney General
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Enclosure

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDAnNIeEL

Opinion No. 2012-073

May 10, 2012

Ron Hooks, Director of Finance/Acting Executive Director Metropolitan Housing Alliance

100 South Arch Street

Little Rock, Arkansas 72201

Dear Mr. Hooks:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). Your request, which is made as the custodian, is based on A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2011). This subsection authorizes the custodian, requester, or the subject of personnel or employee evaluation 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 letter indicates that someone has made a request for a specific “e-mail chain.” You have located the e-mail chain and have determined that it qualifies as “(1) personnel records...and/or (2) employee evaluations.” You have applied what you believe are the tests for the release of such records and have determined that the records should be withheld. You ask whether these two decisions— categorizing the records and then applying the appropriate legal test—are consistent with the FOIA.

RESPONSE

My statutory obligation is to assess whether the custodian’s decision is consistent with the FOIA. You have not really made a decision about these records. Instead, you have made a hypothetical decision that “if’ the records qualify as personnel or employee evaluation records, then certain conclusions follow, Therefore, you have made the most minimal kind of decision for me to review. Further, for the few e- mails in the chain that I have sufficient information to assess, your decisions are, in my opinion, inconsistent with the FOIA.

323 CENTER STREET, SurTe 200 * Litre Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE * http://www.ag.state.ar.us/

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 2

DISCUSSION

In what follows, I will first explain the general rules governing the disclosure of public records and the circumstances under which a custodian must not disclose personnel records or employee-evaluation records. We can then apply this background to the e-mail chain.

L 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.

Because you do not contest whether the first two elements are met, I will move immediately to address the bulk of your letter, which deals with the exceptions for personnel records and employee evaluations. Having assumed, for purposes of this opinion, that the Housing Authority is subject to the FOIA and that the records are public records, the records must be disclosed unless a specific exemption provides otherwise.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two 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

' Personnel files usually include the following: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records; requests for leave-without-pay; certificates of advanced training or education; and legal documents such as subpoenas. £.g., Op. Att’y Gen, 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009).

7 A.C.A. § 25-19-105(b)(12): “It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter: ...[p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 3

evaluation or job performance records.”? The tests for whether these two types of

documents may be released differ 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 the record be disclosed.

a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for “personnel records,” which the FOJA does not define. 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 a thumb on the scale favoring disclosure.

7 A.C.A. § 25-19-105(c)(1): “Notwithstanding subdivision (b)(12) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure.”

4 See, e.g., Op. Att’y Gen. No. 1999-147; Watkins & Peltz, supra, at 187. 7 ALCA. § 25-19-105(b)(12) (Supp. 2011).

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

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 4

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 minimus privacy interest.’ If the privacy interest is merely de minimus, then the thumb on the scale favoring disclosure outweighs the privacy interest. Second, if the information does give rise to a greater than de minimus 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, '”

Whether any particular personnel record’s release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.!!

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 recently 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.

" Id. at 598, 826 S.W.2d at 255.

® Id., 826 S.W.2d at 255.

• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
  '0 & g., Op. Att’y Gen. Nos. 2001-112, 2001-022, 94-198.

'! Op. Att’y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.

"2 Thomas v, Hall, 2012 Ark. 66, __ S.W.3d___ (Feb. 16, 2012); see, e.g., Op. Att’y Gen. Nos. 2009-067; 2005-030; 2003-073; 98-006; 97-222; and 93-055.

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 5

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., relevance); and

4. The public has a compelling intcrest in the disclosure of the records
   in question (i.c., compelling interest)."?

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."

HI. Application.

We are now in a position to apply the foregoing to the e-mail chain. But before doing so we should note that the chain of e-mails reflects the correspondence between what appears to be a mid-level manager and a top-level manager, where the latter has authority over the former.

These e-mails are best analyzed separately. I will quickly assess the e-mails in chronological order, leaving two to be discussed further.

e The e-mails sent before May 1 certainly do not appear to be employee evaluations. While it is possible that these e-mails are personnel records, I do not have sufficient facts to assess this issue. And since you have not indicated, one way or the other, how you have categorized each individual e-mail, I cannot perform my statutory duty with respect to this set of e- mails.

"3 A.C.A, § 25-19-105(c)(1) (Supp. 2011); Op. Att’y Gen. 2008-065,

“ Cf. Op. Att’y Gen. 96-168; Watkins & Peltz, supra, at 204.

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 6

e Because the rest of the e-mails all occur on the same day, I will simply refer to them by time. The three e-mails sent at 9:40, 9:40, and 9:42 are clearly not employee evaluations. While they could be personnel records of the sender and/or recipient, I lack sufficient facts to assess that issue. And since you have not indicated, one way or the other, how you have categorized each individual e-mail, I cannot perform my statutory duty with respect to these e-mails.

e The e-mail sent at 9:44 clearly cannot be an employee evaluation because it was not created by or at the behest of an employer (or supervisor) to evaluate a subordinate employec. But, given this e-mail’s content, it seems to pertain to the sender. Accordingly, it is probably best characterized as a personnel record, Further, I am not aware of any facts that would make the release of this document rise to the level of a clearly unwarranted invasion of personal privacy. Therefore, your decision to not release this document is probably inconsistent with the FOIA.

e The e-mail sent at 9:56 is clearly not an employee evaluation either. While they could be personnel records of the sender and/or recipient, I lack sufficient facts to assess that issue. And since you have not indicated, one way or the other, how you have categorized each individual e-mail, I cannot perform my statutory duty with respect to these e-mails.

e The e-mail sent at 4:22 p.m. is clearly a letter of suspension. This office has consistently opined that when a letter of suspension merely notes the fact of suspension—as does this e-mail—then the letter is considered the personnel record of the person suspended. The release of such a letter does not rise to the level of a clearly unwarranted invasion of personal privacy.’

The categorization of the e-mails sent at 1:44 p.m. and 5:28 p.m. is slightly more complicated. The first question to ask about these e-mails is, as always, whether they qualify for the definition of personnel or evaluation records. This office has consistently opined that records like these two e-mails are in the nature of unsolicited complaints, which makes them the personnel records of the employee(s) complained about.'® In addition, when the unsolicited complaint

'> E.g., Op. Att’y Gen. 2011-161.
6 kg, Op. Att’y Gen. Nos. 2011-152, pp. 3-4; 2008-064, pp. 5-6; 2002-210.

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 7

comes from a public employee, the complaint is also the personnel record of that employee.'

When properly viewed as personnel records, these two e-mails must be released unless doing so constitutes a clearly unwarranted invasion of the personal privacy of the sender, of the recipient, and of the other employees mentioned in the e- mails. You, as the custodian, must apply the foregoing to these two e-mails and conduct the balancing test explained above for each of the people just listed.

At this point, you have decided that if the e-mails are personnel records, then you will release an unspecified version that makes certain redactions “in order to segregate information which may constitute an unwarranted invasion of person privacy.” But to support your claim that the release of portions of these records might be prohibited you merely point out that these two e-mails contained “unverified statements” that are “being investigated,” But this office has long held that a personnel record cannot be withheld from disclosure simply because it contains allegations that either may be false or are known to be false. 8 Granted, it could embarrass public employees to have a public record released that contains (potentially) false allegations. But if the allegations are false, and the pending investigation reveals as much, then the employee can release those exonerating investigatory records.!? Therefore, if these records are to be withheld or redacted, the custodian must have a different basis for doing so.

In summary, none of the records qualify as employee evaluations. I lack sufficient information to assess your decision regarding the classification of the many e- mails discussed in bullet-points one, two, and four, Because I cannot review your classification decision, I am also unable to review your decision regarding disclosure. All the remaining e-mails are personnel records. One of the e-mails is

'? Your letter argues that these two e-mails might be evaluation records because they have sparked an investigation into the e-mails’ allegations. But this misplaces the analysis. The threshold question is whether the e-mails were created by or at the behest of the employer (or supervisor). Clearly, they were not. Accordingly, these e-mails were not employee evaluations when they were created, which means these e-mails are personnel records. And a personnel record cannot later be transformed into an employee-evaluation record simply because the personnel record prompted or was made a part of an investigation. F.g., Op. Att’y Gen. Nos. 2007-206, 1996-168, 1996-033,

8 E.g., Op. Att’y Gen, Nos. 2011-152, 2008-064.

19 Id.

Ron Hooks, Director of Finance
Acting Executive Director
Metropolitan Housing Alliance
Page 8

clearly a letter of suspension that merely recounts the fact of suspension, which means the letter is a personnel record subject to release. There is an additional personnel record the release of which would not appear to be an unwarranted invasion of personal privacy. And, finally, the two remaining e-mails are unsolicited complaints, which means they are personnel records. The custodian must apply the foregoing rules for the release of such records. But the one justification offered for their non-disclosure—that the records contain “unverified allegations”—1s not a sufficient reason to withhold the records.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.

Sincerely,

LPF Willa 4

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh