Could Little Rock withhold a public employee's name because publication might lead to harassment?

Plain-English summary

The Arkansas Attorney General concluded that Little Rock could release a public employee's name even though the employee feared that publication could make harassment of him or his family easier. The opinion said public employee names were personnel records but "must be released unless doing so constitutes a 'clearly unwarranted invasion of personal privacy.'"

The AG found no general statutory exception for the concern raised. The opinion stated that the legislature had not created a generalized "harassment exception" or "increased risk of harm exception" for public employee names.

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 an employee's name as a personnel record that was generally subject to release. The employee's stated fear of harassment did not change the result under the law discussed by the AG.

Records custodians and government employers

The AG approved the custodian's decision to release the name. The opinion said the legislature, rather than the Attorney General, would have to create a general exception based on harassment or increased risk of harm.

Journalists and other requesters

The employee expected a press requester to publish the information, but that expected publication did not supply an exemption in the AG's analysis.

Common questions

Q: Could an Arkansas agency withhold an employee's name because publication might lead to harassment? A: Not under the general exception argued in this opinion. The AG said the legislature had not created a generalized harassment or increased-risk-of-harm exception.

Q: Did the AG treat a public employee's name as a personnel record? A: Yes. The opinion said public employee names qualified as personnel records, but their release generally did not reach the level of a clearly unwarranted invasion of personal privacy.

Q: Did the opinion decide whether Arkansas should create a safety-based exception? A: No. It said creating such a general exception was a matter for the legislature.

Background and statutory framework

A press requester sought the names, job titles, departments, salaries, overtime, compensatory time, and pay grades of City of Little Rock employees. One employee objected only to release of his name because he feared publication could expose him or his family to harassment.

The AG relied on Opinion No. 2011-058, reproduced with the current opinion. That earlier opinion addressed employee objections involving unwanted disclosure, requester motive, abusive former spouses, and a non-Arkansas requester. It also noted that A.C.A. § 25-19-107 provided for court review of a custodian's decision.

Citations and references

Statutes:

• A.C.A. § 25-19-105(c)(3)(B)
• A.C.A. §§ 25-19-101 to -110 (Repl. 2002 & Supp. 2009)
• A.C.A. § 25-19-105(b)(12) (Supp. 2009)
• A.C.A. § 25-19-107

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. 2013-080

July 31, 2013

John B. Honea

c/o Stacy Witherell

Labor and Employee Relations Manager
City of Little Rock

701 West Markham

Little Rock, Arkansas 72201

Dear Mr. Honea:

You have requested my opinion regarding the Arkansas Freedom of Information Act (“FOIA”), Your request 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 a member of the press has requested the name, job title, department, salary, over time, comp. time, and pay grade of all City of Little Rock employees who were employed during a certain period of time. The custodian intends to release this information as it pertains to you. You object to the release of your name—though not the other pieces of information—because you are concerned about the probability that the press member will publish the information in some form, which could make it easier for certain members of the public to harass you or your family. You ask whether, in light of these concerns, the Arkansas FOJA requires your name be omitted from the material the custodian intends to disclose.

RESPONSE

In my opinion, the custodian’s decision to release your name is consistent with the FOIA. As I have frequently opined, the names of public employees qualify as

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/

John B. Honea
Opinion No. 2013-080
Page 2

“pyersonnel records” under the FOIA.' That means the names must be released unless doing so constitutes a “clearly unwarranted invasion of personal privacy.” I have opined that because the release of employees’ names does not rise to that level, names are not shielded from disclosure under the FOIA.

In your case, you make a specific argument that the release of your name increases your risk of physical or financial harm. Presumably, your argument would be that, in light of this risk, the release of your name would be a clearly unwarranted invasion of personal privacy. I have addressed a similar argument when I concurred with the analysis of my predecessor regarding the release of an employee’s name under circumstances where the employee was concerned about a risk of harm from an ex-spouse. (Please see Opinion No. 2011-058, which I have enclosed for your reference.) The legislature has not seen fit to establish a generalized “harassment exception” or a generalized “increased risk of harm exception” to the release of public employees’ names. It is up to the legislature to clearly fashion such an exception if the legislature sees fit.

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

Sincerely, s {fo™

DUSTIN MCDANIEL
Attorney General

DMW/RO:cyh

Enclosure

' E.g., Op. Att’y Gen. 2011-058.

• Id, citing A.C.A. § 25-19-105(b)(12).

STATE OF ARKANSAS

THE ATTORNEY GENERAL
Dustin McDANIEL

Opinion No. 2011-058

May 6, 2011

Ms. Kay Barnhill Terry

State Personnel Administrator

Office of Personnel Management
Department of Finance and Administration
1509 West Seventh Street, Suite 201

Little Rock, Arkansas 72203-3278

Dear Ms. Terry:

I am writing in response to several requests, made pursuant to A.C.A. § 25-19- 105(c)(3)(B), for my opinion on whether the release of certain records in the Arkansas Administration Statewide Information System (AASIS) would be consistent with the Arkansas Freedom of Information Act (FOIA), which is codified at A.C.A. §§ 25-19-101 to -110 (Repl. 2002 & Supp. 2009). The requests reference an e-mail to Don Lukas, of the Arkansas Department of Finance and Administration, from Dakin Sloss of California Common Sense. Mr. Sloss seeks an clectronic copy of the name, agency, job title, and salary of every state employee.

Seven state employees object to and request this office’s review of the custodian’s decision to release this information, These employees object for the following reasons:

e two simply state that they “do not wish” their information to be released; e two object because they want to know the requester’s intention; e two object because they believe the release of this information would make

it casier for abusive ex-spouses to locate them; one has a restraining order, the other does not indicate whether a restraining order is in place; and

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

Ms. Kay Barnhill Terry

State Personnel Administrator, OPM
Opinion No. 2011-058

Page2 °

® one objects because the requester is not an Arkansas citizen.

RESPONSE

My duty under A.C.A. § 25-19-105(c)(3)(B) is to determine whether a custodian’s decision regarding the disclosure of certain employee-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

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.

As this office has consistently opined, given the nature of this 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 these records from disclosure. As noted in Opinion No. 2011-045, these records meet 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 explains, the release of these kinds of records—i.e. those reflecting the name, salary, job title, etc —will rarely rise to the level of such an invasion. Therefore, these kinds of records generally must be released.

The only remaining question is whether any of the objections present facts showing that, given specific considerations, the release of the objectors’ records would constitute a clearly unwarranted invasion of personal privacy. I will address each objection in turn.

' Please see Opinion No. 2011-045 for the definition of “personnel record.”

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

Ms. Kay Barnhill Terry

State Personnel Administrator, OPM
Opinion No. 2011-058

Page 3

None of the objections listed in the first two bullet-points above requires the records be withheld, in my opinion. The first two objectors merely state their desire that the information not be released. But, under the FOIA, the question whether the subject of the records desires to have their records released is not relevant to the analysis. The third and fourth objectors question whether the requester really needs the names of employees. This office has consistently explained that state employees’ names are generally releasable under the FOIA and the requester’s motive in seeking the records is generally not relevant.’ Further, as this office has consistently noted, the public is the employer of these individuals and pays their salaries. It is reasonable to expect that an employer would have an interest in knowing whom it employs.’ Thus, the decision to release these objectors’ records is consistent with the FOIA, in my opinion.

Two employees object to releasing their personnel records because doing so might enable abusive ex-spouses to find them. Their argument is, presumably, that releasing their names, salaries, and the name of their agencies would be a clearly unwarranted invasion of personal privacy because, in their case, it may raise the probability that the ex-spouse will find them and harm them. In 2006, my predecessor was presented with a similar scenario and opined that the release of personnel records would not constitute a clearly unwarranted invasion of personal privacy. Opinion 2006-142 reviewed a custodian’s decision to release personnel records to a requester who had been the subject of a “No Contact Order” that forbade the requester from contacting the employee in any way. In that case, my predecessor opined that, absent a review of the actual court order, the release of the personnel records to the subject of the “No Contact Order” was not a clearly unwarranted invasion of personal privacy. I concur with my predecessor’s analysis, which, when applied to the current case, requires the records be released, in my opinion. Thus, the custodian’s decision to release these two employees’ names, salaries, etc. is consistent with the FOIA.

The final objector argues that the requester is not entitled to use the FOIA because the requester is not an Arkansas citizen. As this office has previously noted, the FOIA only requires that access to records be provided to Arkansas citizens: “[A]ll public records shall be open to inspection and copying by any citizen of the State

3 Op. Att’y Gen. No 2011-045 (citing multiple opinions),

• E.g. Op. Att’y Gen, Nos. 2011-048, 90-335,

Ms. Kay Barnhill Terry

State Personnel Administrator, OPM
Opinion No. 2011-058

Page 4

of Arkansas...” Accordingly, as I explained in Opinion 2008-191, if the requester is not an Arkansas citizen, then that would be a basis for denying the request. I will note, however, that the Third Circuit Court of Appeals has issued a decision that—while not binding in Arkansas—used the Privileges and Immunities Clause of the U.S. Constitution to hold that the citizen restriction in Delaware’s FOIA was unconstitutional.® Additionally, given that the FOIA does not prohibit the release of public records to non-citizens of Arkansas, a custodian might reasonably decide to grant the FOIA request in light of the Third Circuit decision.

In summary, in my opinion, the custodian’s decision to classify the requested documents as personnel records is consistent with the FOIA; the decision to release the records under the personnel-records test is consistent with the FOIA; and none of the objections overcomes either of those decisions. As a final matter, please note this opinion does not preclude anyone from pursuing judicial remedies afforded by the FOIA. The custodian’s decision is subject to court review under A.C.A. § 25-19-107, which provides for a citizen’s appeal to enforce the rights granted by the FOIA. Such an appeal may be made to the Pulaski County Circuit Court or to the circuit court of the residence of the aggrieved party.

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

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/RO:cyh

Enclosure

° E.g., Op. Att’y Gen. 2001-314, at note J (citing A.C.A. § 25-19-105(a)(1)); see also J. Watkins
& R. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT (5th ed., Arkansas Law Press 2009), at 87.

® Lee v, Minner, 458 F.3d 194 (3rd Cir. 2006); see also Watkins & Peltz, supra note 5, at 92-94 (analyzing Lee vy. Minner).