Could Arkansas release wastewater employees' names, salaries, hire dates, gender, and work locations under the FOIA?

Plain-English summary

The Arkansas Attorney General concluded that Little Rock Wastewater could release records listing employees' names, dates of hire, job titles, salaries, gender, and work locations. The opinion said this information was "open to inspection and copying under the FOIA" and that the custodian's decision was consistent with the law.

The employee objected because the requester did not explain why she wanted the information and because it might be misused. The AG repeated that a requester's motive is "generally irrelevant" when a public record is not exempt.

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.

What the opinion meant in 2013

Public employees

The opinion treated names, titles, departments, agencies, salaries, gender, hire dates, employment status, pay basis, and work locations as basic employment information subject to disclosure. It relied on the attached Opinion No. 2011-044, which said the public interest in that information outweighed the employees' privacy interests.

Records custodians and government employers

The AG approved the custodian's classification of the requested material as personnel records and the decision to release it. The attached analysis applied the personnel-records privacy test in A.C.A. § 25-19-105(b)(12).

Requesters, journalists, and labor organizations

The opinion said the requester did not have to establish a proper reason for seeking non-exempt records. It described the requester's motive and planned use as generally irrelevant to disclosure.

Common questions

Q: Were Arkansas public employee salaries and hire dates private under this opinion? A: No. The AG said records containing salaries, hire dates, and other basic employment information were open to inspection and copying under the FOIA.

Q: Could the utility withhold employee names because the requester might misuse them? A: Not on the facts presented. The opinion said the requester's motive was generally irrelevant to whether a non-exempt record had to be released.

Q: Did the opinion treat the records as personnel records? A: Yes. The custodian classified them as personnel records, and the AG concluded that releasing them was consistent with the FOIA's personnel-records test.

Background and statutory framework

The request sought a list of Little Rock Wastewater employees' names, dates of hire, titles, salaries, gender, and locations. The current opinion relied mainly on Opinion Nos. 2011-044 and 2007-070. The attached 2011 opinion explained that public employee records were public records and that personnel records were disclosable unless release would constitute a "clearly unwarranted invasion of personal privacy."

That attached analysis cited Young v. Rice for the balance between the public's interest in disclosure and an employee's privacy interest. It cited Stilley v. McBride for the significance of a weak public interest where employee privacy is not insubstantial.

Citations and references

Statutes:

• A.C.A. § 25-19-105(c)(3)(B) (Supp. 2011)
• A.C.A. §§ 25-19-101 to -110 (Repl. 2002 and Supp. 2009)
• A.C.A. § 25-19-103(5)(A) (Supp. 2009)
• A.C.A. § 25-19-105(b)(12) (Supp. 2009)

Cases:

• Young v. Rice
• Stilley v. McBride

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. 2013-073

July 16, 2013

Mr. Woody Chenault

c/o Lynn Luther, SPHR, IPMA-CP
Human Resources Administrator
Little Rock Wastewater Utility
5300 South Shackleford Road
Little Rock, Arkansas 72204

Dear Mr. Chenault:

I am writing in response to your request, made pursuant to A.C.A. § 25-19- 105(c)(3)(B) (Supp. 2011), for an opinion on whether the custodian’s decision to release certain information in response to a request made under the Arkansas Freedom of Information Act (“FOIA”) is consistent with that law. Attached to your request is an email notification addressed to all employees from Lynn Luther, Human Resources Administrator at Littke Rock Wastewater Utility. The email notes that Little Rock Wastewater received an FOIA request from Bessie Fowler of the American Federation of State, County and Municipal Employees, AFL-CIO
— Arkansas Council 38, seeking a “list of Little Rock Wastewater employee names, dates of hire, titles, salaries, gender and location.”

The custodian has determined that all of the requested records are personnel records that are releasable under the FOIA. You apparently disagree with the custodian’s decision and ask for my advice as to “whether or not this information is or should be released.” You also ask whether “this is a legitimate request,” citing the requester’s failure to provide personal information or an explanation of why she wants the information or what she plans to do with it. Further, you note a concern that the requester might be gathering information to disseminate to entities engaged in identity theft.

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/

Woody Chenault
Opinion No. 2013-073
Page 2

RESPONSE
In my opinion, the custodian’s decision is consistent with the FOIA.

I addressed the bulk of the information now requested in a previous opinion, Opinion No. 2011-044 (copy enclosed). In that Opinion, I concluded, among other things, that information detailing public employees’ names, titles, departments, agencies, salaries, gender, hire date, employment status (full time, part time or temporary) and pay basis (hourly or salaried) was open to inspection and copying under the FOIA. This also applies with respect to the location of public employees (see, e.g., Op. Att’y Gen. No. 2007-070). I will not restate the analysis of either opinion herein. It is sufficient to note that my opinion has not changed since the issuance of the above referenced opinions; and therefore, in my opinion, the custodian’s decision to release the above-listed information is consistent with the provisions of the FOIA.

Regarding your concern that the requester has not listed the reasons for the request or the uses to which the information may be put, this office has previously consistently opined that the requester’s motive for making the request is generally irrelevant to whether a non-exempt record should be released pursuant to the FOIA.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

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Attorney General

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Enclosure

'E.g., Op. Att’y Gen. Nos. 2013-012, 2012-085, 2012-069, 2012-014, 2011-071 and 2011-044.

STATE OF ARKANSAS

Tue ATTORNEY GENERAL
DusTIN McDANIEL

Opinion No. 2011-044

April 4, 2011

Little Rock Wastewater Employees
c/o Lynn Luther, SPHR, IPMA-CP
Human Resources Administrator
Little Rock Wastewater

1001 Temple

Little Rock, Arkansas 72202

Dear Ms. Luther:

I am writing in response to several requests for opinions regarding application of the Arkansas Freedom of Information Act (“FOIA”), A.C.A. §§ 25-19-101 to -110 (Repl. 2002 and Supp. 2009). These requests have been submitted pursuant to A.C.A, § 25-19-105(c)(3)(B), which authorizes the custodian, requestor, or subject of personnel or evaluation records to seek an opinion from the Attorney General as to whether the custodian’s determination regarding the release of the requested records is consistent with the FOJA.

The instant request from Leslie Peacock with the ARKANSAS TIMES states that the TIMES is compiling a database of all employees of the city and its semi- autonomous commissions and asks for the name, title, department, agency, salary/wage, gender, hire date, employment status (full time, part time or temporary) and pay basis (hourly or salaricd) on each Little Rock Wastewater employee.

Your letters variously state that you are opposed to the release of what you refer to as your “personal information.” You express concern about the database being compiled by the ARKANSAS TIMES, and you ask why this information is being requested. You posit that such aggregate information may be used for identity theft purposes, though you have provided no further support for this proposition. Further, you object to the release of your name and gender.

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

Lynn Luther, HR Administrator
Little Rock Wastewater
Opinion No. 2011-044

Page 2

It is my understanding that the records custodian at Little Rock Wastewater intends to release the requested information.

RESPONSE

My statutory duty under A.C.A. § 25-19-105(c)(3)(B) is to determine whether a custodian’s decision regarding the disclosure of certain employce-related documents is consistent with the FOIA. In the present case, the custodian has determined that the requested records are personnel records and should be released. In my opinion the custodian’s decision is consistent with the FOIA.

DISCUSSION

The FOIA provides for the disclosure, upon request, of certain “public records,” which the Arkansas Code defines as follows:

“Public records” means writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations in any medium, required by law to be kept or otherwise kept, and which constitute a record of the performance or lack of performance of official functions which are or should be carried out by a public official or employce, a governmental agency, or any other agency wholly or partially supported by public funds or expending public funds. All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records.’

In this case, given that the subjects of the request are public employees, documents containing the requested information clearly qualify as “public records” under this definition. As one of my predecessors noted: “If records fit within the definition of ‘public records’... they are open to public inspection and copying under the FOIA except to the extent they are covered by a specific exemption in that Act or some other pertinent law.””

| A.C.A. § 25-19-103(5)(A) (Supp. 2009).

? Op, Att’y Gen, 99-305.

Lynn Luther, HR Administrator
Little Rock Wastewater
Opinion No, 2011-044

Page 3

The relevant exemption in this case is the one for “personnel records.”* This office has previously opined that “records relating to [an employee’s] hiring date and salary information are clearly ‘personnel records’ for purposes of the FOIA.” Additionally, as a general rule the name of a public employee, like salary information, is contained in records that are properly classified as “personnel records.”

“Personnel records” are open to public inspection and copying under the FOIA, except “to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy.”° The FOIA does not define the phrase “clearly unwarranted invasion of personal privacy.” But the Arkansas Supreme Court has construed the phrase and adopted a balancing test to determine if it applies. That test requires that one weigh the public’s interest in accessing the records against the individual’s interest in keeping the records private.’ If the public’s interest outweighs the individual’s interest, the custodian must disclose the personnel records. As the court noted in Young:

The fact that section 25-19-105(b)(10) [now subsection 105(b)(12)] exempts disclosure of personnel records only when a clearly unwarranted personal privacy invasion would result, indicates that certain “warranted” privacy invasions will be tolerated. Thus, section 25-19-105(b)(10) requires that the public’s right to knowledge of the records be weighed against an individual’s right to privacy.... Because section 25-19-105(b)(10) allows warranted invasions of privacy, it follows that when the public’s interest is

3 A.C.A, § 25-19-105(b)(12) (Supp. 2009).

“ Op. Att’y Gen. 2004-320.

° Op. Att’y Gen. Nos, 2005-074 and 2003-095, and opinions cited therein.
° A.C.A. § 25-19-105(b)(12) (Supp. 2009).

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

Lynn Luther, HR Administrator
Little Rock Wastewater
Opinion No. 2011-044

Page 4

substantial, it will usually outweigh any individual privacy interests and disclosure will be favored.®

In contrast, as the court noted in Stilley v. McBride, when there is “little relevant public interest” in disclosure, “it is sufficient under the circumstances to observe that the employees’ privacy interest in nondisclosure is not insubstantial.”’ Given that exemptions from disclosure must be narrowly construed, it is the burden of an individual resisting disclosure to establish that his privacy interests outweighed that of the public’s under the circumstances presented.'° Further, the requestor’s motive in seeking the documents is usually irrelevant to whether the document should be disclosed."

At issue, then, is whether disclosing documents that record an employee’s name, title, department, agency, salary, hire date, employment status (whether full time, part time or temporary), or pay basis (hourly or salaried) would amount to a “clearly unwarranted invasion of personal privacy” under this balancing test. In my opinion, it would not. Numcrous opinions of this office support the conclusion that the public interest in this type of basic employment information is substantial and any potential privacy interest does not outweigh it.'? It must also be noted,

• Id. at 598,

• 332 Ark, 306, 312, 965 S.W.2d 125 (1998).
  ' Id, at 313.

'' See, e.g., Op. Att’y Gen, 2010-148.

” Eg, Op. Att'y Gen. 2008-050, citing Op. Att?y Gen. Nos. 2007-001, 2005-194, 2005-057, 2004-225, and 2002-087; see also Op. Att’y Gen. 2005-074 (citing several opinions to the effect that the names of public employees are generally subject to disclosure, including Op. Att’y Gen. 90-335 (“[t]he ‘public’ is the employer of these individuals, and pays their salaries [and] [i]t is not unreasonable to expect that an employer would have an interest in knowing whom it employs[;]”) and Op. Att’y Gen. 95-220 (“[c]ourts have found relatively little privacy interest in records revealing names of public employees.”)); Op. Att’y Gen. 2003-298 (“[T]he public interest in obtaining salary information relating to public employees, including the identity of particular employees, outweighs the employees’ privacy interests.”); 98-126 ({S]alary information is clearly subject to disclosure, as such information does not constitute a “clearly unwarranted invasion of personal privacy[,]” citing Op. Att’y Gen. Nos. 96-205, 95-242, 95-070, and 94-198).

Lynn Luther, HR Administrator
Little Rock Wastewater
Opinion No. 2011-044

Page 5

consistent with previous opinions of this office, that the custodian’s decision to release the “gender” of the affected employees is consistent with the FOIA.”

Several of the employees who have objected to disclosure have expressed concern about the potential uses to which the documents may be put after they are disclosed. This office has consistently opined, however, that a person’s motive or reason for requesting records pursuant to the FOIA is irrelevant. '4 Tf the record is a “public record” under the FOIA and is subject to no exception, it must be released to members of the public without regard to their motive for seeking access to the record or the use to which it may be put.

It is therefore my opinion that the public interest prevails with respect to this basic employment information, and that the custodian’s decision to release a record listing employees’ names, job titles, departments, agencies, salaries/wages, gender, hire dates, employment status and pay basis is consistent with the FOIA.

Deputy Attorney General Elisabeth A. Walker prepared the foregoing opinion, which I hereby approve.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM:EAW/cyh

'3 See Op. Att’y Gen. 2005-100 (“This office has previously opined that an employee’s race, gender, date of hire and job title are disclosable under the FOIA. See, e.g., Op. Att?y Gen. Nos. 1999-305 and 91-351, Records containing this information generally constitute ‘personnel records’ that are open to public inspection and copying.”) (Emphasis added.)

'4 See Op. Att’y Gen. 92-289; J. Watkins & J, Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 140 (Arkansas Law Press 2009, 5” Ed.)