Could Arkansas release a public employee's merit-raise percentage under FOIA when it revealed the employee's performance rating?

Plain-English summary

The Attorney General agreed with a records custodian's decision to release public employees' merit-raise percentages under the Arkansas Freedom of Information Act.

The merit system linked particular performance ratings to defined percentage increases, so a reader could use a disclosed percentage to infer an employee's overall rating. Even so, the AG classified the percentage itself as a personnel record, not an employee-evaluation record. It was an effect of the evaluation and a reward for performance, but it was not created to evaluate the employee.

The opinion found no general FOIA rule allowing an otherwise disclosable record to be withheld simply because it could be cross-referenced with other information to reveal exempt information. It therefore found the custodian's general decision consistent with FOIA, while declining to rule on any specific document the AG had not seen.

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.

How the opinion applied in 2013

Public employees

The opinion treated merit-raise percentages as salary information and therefore as personnel records. Their ability to reveal an overall evaluation result indirectly did not convert the percentages into employee-evaluation records.

Records custodians

The AG approved the general decision to release the percentages. He did not approve any particular record because he had not reviewed the documents the custodian planned to disclose.

Journalists and records requesters

Under the opinion's analysis, the possibility of matching a merit percentage with a statutory pay scale did not create a separate exemption. The AG relied on the rule that FOIA exceptions were narrowly construed.

Common questions

Was a merit-raise percentage an employee-evaluation record?

No. The opinion said the percentage rewarded a level of performance but was not itself created by the employer to evaluate the employee.

Was it a personnel record?

Yes. The AG treated the percentage as salary information, like the amount of a raise, and classified it as a personnel record.

Could the percentage be withheld because it revealed an evaluation result indirectly?

The AG found no clear FOIA basis for withholding an otherwise disclosable record on that ground. He said doubts about an exception's meaning or application should be resolved in favor of exempting fewer records.

Did the AG approve the release of every requested document?

No. Because he had not seen the specific documents, he addressed only the general release of merit-raise percentages.

Background and statutory framework

The request covered each lottery employee's merit raise, percentage increase, dollar increase, cost-of-living adjustment, and new annual salary. The employee who sought the opinion accepted that public salary information could be released but objected to disclosing a percentage that corresponded to an overall performance category.

The opinion used a three-part FOIA framework: the request had to reach an entity subject to the act, the document had to be a public record, and no exception could permit withholding. The first two elements were not disputed. For the third, the AG applied the personnel-record standard and the rule that disclosure should not cause a clearly unwarranted invasion of personal privacy.

Citations and references

Statutes:

• A.C.A. § 25-19-105(c)(3)(B)(i)
• A.C.A. §§ 25-19-101 to 25-19-110

Case:

• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998), cited for narrowly construing FOIA disclosure exceptions

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. 2013-066

July 8, 2013

Patricia Vick

c/o Jean Block, Chief Legal Counsel
Arkansas Scholarship Lottery

Post Office Box 3238

Little Rock, Arkansas 72203-3238

Dear Ms. Vick:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”).' Your request, which is based on A.C.A. § 25-19-105(c)(3)(B)(i), seeks an opinion from this office stating whether the custodian’s decision regarding the release of personnel or employee-evaluation records is consistent with the FOIA.

Your letter indicates that someone has requested “each of the lottery employees’ merit raises, the percentage raise, and the raise in dollar terms as well as their COLA raise in dollar terms and their new total annual salary.” The custodian has decided that the FOIA requires each of these pieces of information be released. While you recognize that, as a public employee, your salary is subject to release in response to a FOIA request, you question the release of the “merit pay percentages.” You point out that “under the Merit Pay System, merit pay increases are directly tied to the performance evaluation process.” Specifically, employees who receive a certain overall rating receive a defined percentage increase: those who are overall “satisfactory” receive 1.5%; those who are overall “above average” receive 3%; those who overall “exceed standards” receive 4.5%.

' The FOIA is codified at A.C.A. §§ 25-19-101 to 25-19-110.

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

Patricia Vick
Opinion No. 2013-066
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 documents that the custodian intends to disclose, I cannot opine about the release of any specific record. Nevertheless, J can opine more generally about the release of the percentages for merit raises. As explained more fully below, the custodian’s decision to release the percentages is, in my opinion, consistent with the FOIA.

DISCUSSION

A document must be disclosed in response to a FOJA 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.

Given the nature of the underlying FOIA request, the first two elements are clearly met. The analysis for those two elements is contained in Opinion No. 2011-045, which is enclosed. So I will not repeat it here.

Turing to the third element, the question is whether some exception shields the specific percentage of the merit raise from disclosure. You point out a somewhat unusual scenario in which the release of a personnel record indirectly reveals exempt information on an employee-evaluation record. The Arkansas Supreme Court has defined an evaluation record as a public record that is created by or at the behest of the employer to evaluate the employee.”

As noted in Opinion No. 2011-045, salary information—which includes raises and COLA amounts—meets the definition of a “personnel record.”? Accordingly, the FOIA requires that these records be released unless doing so constitutes a “clearly unwarranted invasion of personal privacy.”* As Opinion No. 2011-045 further explains, the release of salary information will rarely rise to the level of such an invasion. Therefore, these kinds of records generally must be released.

• Thomas vy. Hall, 2012 Ark, 66, _ S.W.3d_ (Feb. 16, 2012); see generally, Op. Att’y Gen.
  Nos. 2009-067, 2006-035, 93-055.

> Please see Opinion No. 2011-045 for the definition of “personnel record.” See also Op. Att’y
Gen. 2011-098 (opining, as a more general matter, that the amount of a raise is considered a personnel record and is discloseable).

• ACA. § 25-19-105(b)(12) (Supp. 2011).

Patricia Vick
Opinion No. 2013-066
Page 3

While there is very good reason to think that the percentage-increase is itself a personnel record, there are no good reasons to think it is itself an employee evaluation. Given the scenario you convey, the award of and amount of the percentage-increase are effects of receiving a certain rating on an employee evaluation. But the percentage increase itself was not created by the employer to evaluate the employee. Instead, just like any other raise or promotion, the percentage-increase rewards the employee for a certain level of performance.

Therefore, in my opinion, the percentage-increase is best characterized as a personnel record, not an employee-evaluation record.

Your core concern seems to be not so much that the percentage-increase is itself an evaluation record, but that, as you say, “the request for the ‘percentage raise’
[seems to be] a ‘back door’ way of discovering an employee’s overall job performance review[.]” In other words, you seem to grant that the release of the percentage-increase itself would not directly disclose an employee evaluation record, but the release seems to indirectly reveal the overall! evaluation result because the percentage-increase can be cross-referenced with the state statute that sets the percentages.

I addressed this concern about cross-referencing in Opinion No. 2011-118. In that opinion, I explained that, because the FOJA’s exceptions must be narrowly construed, when there is a reasonable doubt about what an exception means, we are required to opt for the interpretation that exempts the fewest records.” Likewise, when there is a reasonable doubt about how an exception applies to a given set of facts, we are required to opt for the application that exempts the fewest records.° In my opinion, these principles of interpreting the FOIA indicate that the legislature has not established a general prohibition on the release of an otherwise discloseable record simply because it could be cross-referenced with other information to reveal exempted information.

In summary, the percentage increase is, in my opinion, best classified as a personnel record. There is no clear basis in the FOJA for the custodian to withhold the percentage-increase on the grounds that it could be cross-referenced with the

> See Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (holding that all
exceptions to disclosure under the FOIA must be narrowly construed).

° See id.

Patricia Vick
Opinion No. 2013-066
Page 4

state statute to reveal non-discloseable information. Therefore, the custodian has, in my opinion, properly decided to disclose it.

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

Sincerely,
li
STIN MCDANIEL

Attorney General

DM/RO:cyh