Must an Arkansas school district release background-check reports for its security guards under FOIA?

Plain-English summary

The Little Rock School District received a request for background-check results for current security guards. The district used a private subscription service drawing on court-system information, and its custodian planned to release reports after redacting personal details. The Attorney General said a background investigation report for a person hired into public employment was generally a personnel record, available under Arkansas’s Freedom of Information Act after required redactions.

The AG had not seen the reports and would not decide whether any specific document, or part of one, had to be released. The custodian had to apply the personnel-record privacy test to the actual material. The opinion listed information for redaction, including dates of birth and Social Security numbers, and explained that an exception for Arkansas Crime Information Center material did not apply to information that had not come from that center.

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: Were hired school security guards’ background-check reports automatically secret?

A: No. The opinion treated such reports as personnel records that were generally disclosed after appropriate redactions. The AG did not rule on each unseen report.

Q: Could the district remove birth dates and Social Security numbers?

A: The opinion identified both as information that had to be redacted before releasing an otherwise disclosable record.

Q: Did the Arkansas Crime Information Center restriction cover these private-vendor reports?

A: The AG said that exception covered information held by or obtained from the center. The request stated that this vendor’s information did not come from it.

Q: How was privacy weighed for personnel records?

A: The opinion described a balance between the employee’s privacy interest and the public’s interest in disclosure, favoring disclosure where privacy was minimal. The answer for a particular report required review of its contents.

Background and statutory framework

The opinion distinguished personnel records from employee evaluation or job-performance records, which had different release tests. For personnel records, it applied the privacy balance described in Young v. Rice and directed the custodian to redact protected details while releasing the remainder. It also explained why the Arkansas Crime Information Center exception did not fit the source of the reports described in the request.

Citations and references

• A.C.A. § 25-19-105(b)(12) supplied the personnel-record privacy exception.
• A.C.A. § 25-19-105(b)(13) appeared in the list of information for redaction.
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), supplied the privacy-balancing framework.

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIn McDANIEL

Opinion No. 2013-014

February 14, 2013

David E. Hartz, Associate Superintendent Ms. Chandra Springer

Little Rock School District Security Guard

Human Resources Cloverdale Middle School
810 W. Markham Street 6300 Hinkson Road

Little Rock, Arkansas 72201 Little Rock, Arkansas 72209

Dear Mr. Hartz and Ms. Springer:

You have each requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”). The FOJA—specifically, section 25-19- 105(c)(3)(B)(i)—authorizes the custodian (Mr. Hartz), requester, or the subject (Ms. Springer) 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 letters indicate that the Little Rock School District has received a FOIA request for “access to copies of the background check results for current school security guards.” The letters further indicate that the District “uses a subscription service from [a] private company” to “conduct pre-employment background checks on its security guards.” This private company uses information that “originates from the Administrative Office of the Courts,” not the Arkansas Crime Information Center.

Mr. Hartz, you indicate that, as custodian, you have decided that the report of such background investigations is considered a “personnel record” under the FOIA and that you intend to release the reports after “redacting any personal information such as the employees’ social security number and date of birth.” You each ask whether these decisions are consistent with the FOIA.

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/

David E. Hartz
Chandra Springer
Opinion No. 2013-014
Page 2

RESPONSE

My statutory duty is to state whether the custodian’s decision is consistent with the FOIA. Not having seen any of the specific records at issue, I cannot definitively opine about whether any specific document should be disclosed, in whole or part. But I can explain how the FOIA applies to reports of background investigations generally. As this explanation will make clear, a report reflecting a criminal background check on a public employee is generally considered a personnel record that should be released after making the appropriate redactions, which will be discussed below.

DISCUSSION

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 your concerns focus on the third element—whether there are any exceptions to disclosure—I will focus on that issue. 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 evaluation or job performance records.”” The test for whether these two types of documents may be released differs significantly.

' This office and the leading commentators on the FOIA have observed that personnel files usually include: 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).

? 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.”

> ACA, § 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

David E. Hartz
Chandra Springer
Opinion No. 2013-014
Page 3

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.

The first of these two exceptions is the most relevant to your question. While the FOIA does not define the term “personnel records,” 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

• ” . . 6 .
  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.

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

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.”

• See, e.g., Op. Att’y Gen, No. 1999-147; Watkins & Peltz, supra, at 187.

> A.C.A. § 25-19-105(b)(12) (Supp. 2011).

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

David E, Hartz
Chandra Springer
Opinion No. 2013-014
Page 4

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 the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact."

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:

e dates of birth of public employees (Op. 2007-064);

e social security numbers (Ops. 2006-035, 2003-153);

e medical information (Op. 2003-153);

e any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));

e driver’s license numbers (Op. 2007-025);

"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). '° F.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.

David E. Hartz
Chandra Springer
Opinion No. 2013-014
Page 5

e insurance coverage (Op. 2004-167);

e tax information or withholding (Ops. 2005-194, 2003-385); e payroll deductions (Op. 98-126);

e banking information (Op. 2005-195);

e unlisted telephone numbers (Op. 2005-114);

e criminal history information that has either been expunged or is under seal by court order (Op. 97-177);

e home addresses of most public employees (A.C.A. § 25-19-105(b)(13)); personal e-mail addresses (Op. 2004-225); and

e marital status of employees and information about dependents (Op. 2001- 080).

This office has consistently opined that when an applicant for public employment submits to a background investigation, and the applicant is hired, the report reflecting that background investigation is considered a “personnel record,”’” Thus, the District should disclose the report after (1) reviewing the foregoing list and (2) redacting the pieces of information (a) that are enumerated above or (5) that, if disclosed, would constitute a clearly unwarranted invasion of personal privacy and disclose the remainder,

2 Fg. Op. Att’y Gen. Nos. 2008-138, 2006-128, 97-286.

3 Mr. Hartz, you seem concerned that because some of the information reflected in the report might also be reflected in records maintained by the Arkansas Crime Information Center (ACIC), A.C.A. §§ 12-12-1108 to —1110 might require the report be withheld, either in whole or part. While these statutes establish exceptions to the FOJA’s disclosure requirements, the ACIC exception only applies when the criminal-history information is held by or has been obtained from ACIC. E.g, Op. Att’y Gen. 2008-138. Since you say that none of the information contained in the reports at issue here was obtained from ACIC, the ACIC exception does not shield the information in the report from disclosure.

David E. Hartz
Chandra Springer
Opinion No. 2013-014
Page 6

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

Sincerely,

Attorney General

DM/RO:cyh