Could the Arkansas Lottery release a former employee's personnel-file records after removing home contact information?

Plain-English summary

The Arkansas Attorney General did not decide whether every record in a former Lottery Commission employee's file should be released. Because the AG had not seen the documents, the opinion said it could not "opine conclusively as to their proper classification or release."

The opinion did approve the proposed removal of the employee's home address, home phone number, and personal email address. It then explained the different disclosure tests for personnel records and employee evaluation or job performance records.

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

Former public employees

The opinion confirmed that the proposed redaction of the former employee's home address, home phone number, and personal email address was consistent with the FOIA. It did not decide whether the remaining records could be released because their contents were not before the AG.

Records custodians and government employers

Custodians had to classify each document before applying a disclosure test. Personnel records were subject to a privacy balance, while employee evaluation or job performance records required a final suspension or termination resolution, a record that formed a basis for that decision, and a compelling public interest.

Requesters

The opinion identified personnel action and separation records as categories for which earlier AG opinions had favored disclosure. It stopped short of deciding the status of the specific records requested from the Lottery Commission.

Common questions

Q: Did the AG approve release of the entire personnel file? A: No. The AG had not reviewed the records and could not conclusively classify them or decide whether each one was releasable.

Q: Which redactions did the AG approve?
A: The opinion approved removing the former employee's home address, home phone number, and personal email address.

Q: Are personnel records and job performance records tested the same way? A: No. The opinion described separate standards. Personnel records used a privacy balance, while employee evaluation or job performance records required three statutory conditions before release.

Background and statutory framework

The Lottery Commission planned to release employment letters, a personnel action form, an employee separation checklist, property-return information, delivery confirmations, a text message, and an email announcement. The custodian planned to redact personal contact information.

The opinion described public records under A.C.A. § 25-19-103(5)(A). It cited Thomas v. Hall for the definition of employee evaluation or job performance records, Young v. Rice for the personnel-record privacy balance, and Stilley v. McBride for a situation involving little public interest and a non-insubstantial privacy interest.

Citations and references

Statutes:

• A.C.A. § 25-19-105(b)(13) (Supp. 2011)
• A.C.A. § 25-19-103(5)(A) (Supp. 2011)

Cases:

• Thomas v. Hall
• 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 McCDANIEL

Opinion No. 2013-074

July 18, 2013

Mr. Remmele Mazyck

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

Post Office Box 3238

Little Rock, Arkansas 72203-3238

Dear Mr. Mazyck:

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 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.

It is my understanding that the Arkansas Lottery Commission (“ALC”) has received several FOJA requests for your personnel file. The custodian has indicated that several documents have already been released in compliance with the above-mentioned FOIA requests, which you have not challenged. The custodian has recently discovered that some requested documents in your personnel file were inadvertently overlooked and now intends to release the following records:

Letter regarding an employment meeting with ALC Director
Letter regarding your employment with ALC

Personnel Action Form

Employee Separation Checklist

Office items returned to you

USPS and FedEx Correspondence Confirmations

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/

Mr. Remmele Mazyck
Opinion No. 2013-074
Page 2

e Text Message from you to ALC Director Woosley
e E-mail Announcement to ALC Employees regarding your indefinite leave

The custodian has determined that the above-listed records are subject to release pursuant to the FOIA (after redacting some personally identifiable information). You have asked me to review whether the custodian has properly decided to release these records.

RESPONSE

My statutory duty under A.C.A. § 25-19-105(c)(3)(B)(G) is to state whether a custodian’s decision regarding the disclosure of certain employee-related records is consistent with the FOIA. In the present case, the custodian has determined that most of the requested records are personnel records and should be released, with the exception of some personally identifiable information.’ I have not seen the actual records in question and therefore cannot opine conclusively as to their proper classification or release.” This opinion must be limited instead to setting forth the general standards for determining whether certain employee-related records are releasable under the FOIA.

DISCUSSION

A document must be disclosed in response to an FOIA request if three conditions are met: first, the FOIA request is directed to an entity subject to the act; second, the requested document constitutes a “public record”; and third, the document does not fall within an express exception to disclosure requirements.

' The custodian intends to redact your home address, home phone number, and home email address.

• I can state, however, that in my opinion the redaction of your home address, phone number, and email
  address is consistent with the FOIA. The home address must be redacted pursuant to A.C.A. § 25-19- 105(b)(13) (Supp. 2011). And previous opinions so of this office support redaction of a home address and home email address. See Op. Att’y Gen. Nos. 2012-126 and 2004-225.

I should also mention in this regard that beginning August 16, (the effective date of acts passed during the 2013 legislative session without an emergency clause or specified effective date), public employees’ personal contact information — including home or mobile phone numbers, personal email addresses, and home addresses — will be exempt under the FOIA pursuant to Act 411 of 2013.

Mr. Remmele Mazyck
Opinion No. 2013-074
Page 3

The first element is clearly met in this case, inasmuch as the Arkansas Lottery Commission is clearly a public entity.

With respect to the second element, the FOIA defines the term “public records” 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 employee, 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.”

Although the records itemized in the custodian’s notification letters attached to your correspondence would, based simply upon their titles, appear to qualify as “public records” under this definition, I could not definitively determine as much without reviewing the actual documents. I will nevertheless assume for purposes of this opinion that they do in fact constitute “public records.”

The inquiry then turns to whether any exception prohibits their disclosure. 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.”

Records pertaining to public employees will typically include “personnel records” as well as “employee evaluations or job performance records” for purposes of the FOIA. It is important for the custodian of the records to distinguish between the

7 A.C.A. § 25-19-103(5)(A) (Supp. 2011).

• Op. Att’y Gen, 99-305,

> See, e.g., Op. Att'y Gen. 2005-011.

Mr. Remmele Mazyck
Opinion No. 2013-074
Page 4

two, because their release is governed by different standards. With regard to “personnel records,” although the FOIA does not define this term, this office has consistently taken the position that “personnel records” are any records other than employee evaluation/job performance records that relate to the individual employee.° Personnel records must be released unless their disclosure would constitute a “clearly unwarranted invasion of [the employee’s] personal privacy.”

The FOIA likewise does not define “employee evaluation or job performance records.”® 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.? “Employee evaluation or job performance records” are releasable only if the following three conditions have been met:

1. There has been a final administrative resolution of any suspension
   or termination proceeding;

2. The records in question formed a basis for the decision made in
   that proceeding to suspend or terminate the employee; and

3. There is a compelling public interest in the disclosure of the
   records in question.’ °

The evaluation and job performance exemption promotes candor in a supervisor’s evaluation of an employee’s performance with a view toward correcting any deficiencies.'' It has therefore been opined that “[d]ocuments not created in the

° See Op. Att’y Gen, 2006-071.
7 ALC.A. § 25-19-105(b)(12) (Supp. 2009).

• Id. at (c)(1).

” Thomas v. Hall, 2012 Ark. 66, S.W.3d__ (Feb. 16, 2012); see, e.g., Op. Att’y Gen. Nos. 2009-067; 2008-004; 2007-225; 2006-111; 2003-073; 98-006; 97-222; 95-351; and 93-055.

'° ACA. § 25-19-105(c)(1).

"| See John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 204 (Sth ed., Arkansas Law Press, 2009).

Mr. Remmele Mazyck
Opinion No. 2013-074
Page 5

evaluation process do not come within the rationale behind the 25-19-105(c)(1) exemption.”

THE RECORDS IN QUESTION

With the possible exception of the two letters and the text message,” it seems reasonable to assume that the records identified above relate to you such that they are properly classified as “personnel records” under the FOIA. As such, they are subject to release except to the extent disclosure would constitute a “clearly unwarranted invasion of [the employee’s] personal privacy.”

The FOIA does not define the phrase “clearly unwarranted invasion of personal privacy.” The Arkansas Supreme Court has construed the phrase, however, and has applied a balancing test that requires weighing the interest of the public 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 release of the records will not constitute a “clearly unwarranted invasion of personal privacy.” The balancing takes place with a thumb on the scale favoring disclosure. As stated by the court, “[t]he 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.”

"2 Op. Att’y Gen. 2005-267, citing Op. Att’y Gen. 2005-094.

'3 Depending upon the circumstances surrounding their creation and their content, the letters could conceivably constitute evaluation records under the definition of that category of records set out above. In that case, their release would depend upon whether the three conditions noted above have been met. As for the text message, it may bear noting that not all records authored by public employees are properly classified as “personnel records.” See Op. Att’y Gen. 2008-095. A public record must sufficiently relate to an individual employee in order to be that employee’s personnel record. See Op. Att’y Gen. 2012-001. Depending upon its content, therefore, it is possible that the text message in question is a mere public record subject to no general exemption. (I should reiterate that 1 am assuming, for purposes of this opinion, that the records at issue meet the above definition of “public records.”)

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

'S 1g at 598,

Mr. Remmele Mazyck
Opinion No, 2013-074
Page 6

The balancing test elaborated by the court 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.!’ If there is little public interest in the information, the privacy interest will prevail if it is not insubstantial.'® Whether the release of any particular personnel record would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.'? 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.”” Additionally, the fact that the subject of any such records may consider release of the records an unwarranted invasion of his or her personal privacy is irrelevant to the analysis because the test is objective.”

Again, because I have not reviewed any of the specific records at issue, I cannot offer a definitive opinion as to their release. I will note, however, that this office has previously opined that the public interest prevails with respect to the following:

e contracts or agreements related to an employee’s separation from employment (Op. Nos. 97-063 and 88-078);

e internal affairs notification documents (Op. 2005-153);

'° Td.

"7 Td,

'8 See Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125 (1998). ' Eg. Op. Att’y Gen. Nos. 2001-112, 2001-022, 94-198.

° Id.

2! See Op. Att’y Gen. 2013-012 (and opinions cited therein).

Mr. Remmele Mazyck
Opinion No. 2013-074
Page 7

_@ notice of personnel action (Op. 2000-267).

_ While I cannot conclusively opine to this effect, these opinions may well support the custodian’s decision to release the “Personnel Action Form” and “Employee Separation Checklist” in question. As for the remaining documents, I lack sufficient information to speculate regarding their disclosure, but must instead refer you to the above tests for the release of employee-related records. The custodian must follow these tests when reviewing each record to determine whether it is open to public inspection and copying under the FOIA.

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

Sincerely,

Dosti mcbaken
Attorney General

DM/EA W:cyh