Could the Arkansas AG decide whether a highway department employee's personnel file should be released without seeing the records?

Plain-English summary

Mona Struble objected to a FOIA request for her Arkansas Highway and Transportation Department personnel file. The custodian listed categories she intended to disclose, including an application, resumes, references, pay information, education, training, employment history and possible grade transcripts. She also identified a report attached to a Form 19-125 as a primary record of concern because it was used as the basis for an adverse employment action.

The AG could not decide the disclosure of any specific document. He had not received the records, did not know how the custodian had classified them, and lacked the circumstances of the report. Struble had not explained why she objected or identified particular documents she wanted withheld. He set out the standards for the custodian instead of predicting the result for her file.

The opinion distinguishes personnel records from evaluation or job performance records. Personnel records are generally open unless release would be a clearly unwarranted invasion of personal privacy, assessed by an objective balance that favors disclosure. Even a record otherwise releasable can contain information requiring redaction. Evaluation records, by contrast, cannot be released unless the employee was suspended or terminated, the proceeding was finally resolved, the record formed a basis for the decision, and the public has a compelling interest in release.

The AG specifically warned that school transcripts in an employer's file are personnel records but, under his office's long-held view, are exempt from disclosure. He did not classify the Form 19-125 or its attached report and did not say whether the employee's circumstances satisfied the evaluation-record release test.

What this means for you

Custodians and employees

A category list does not establish how every document should be handled. The custodian must inspect and classify the actual records, apply the matching FOIA test and redact protected details. This opinion does not approve or reject disclosure of the report, form or any particular item in Struble's file.

Currency note

This opinion was issued in 2014. Check current FOIA law and the records at issue before applying its standards.

Common questions

Why could the AG not answer yes or no?
He lacked the actual records, their classification, facts about the report and a specific explanation of Struble's objection.

Did he find that the Form 19-125 was a personnel record?
No. The opinion notes the form and attached report but does not classify either one.

Did he find that Struble's evaluation records could be released?
No. He described the four conditions for release without deciding whether any record in this file met them.

What did he say about school transcripts?
He said they are personnel records in employer files and are exempt from disclosure under his office's long-held view.

Did this opinion address a later AG review with the records in hand?
No. It addresses only the information presented in this request.

Background and statutory framework

The opinion directs the custodian to make two decisions for each record: determine whether it is a personnel or evaluation record, then apply the corresponding release test. The AG also listed kinds of personal information that may need redaction from otherwise releasable records. He did not perform document-specific review because no records had been supplied.

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. 2014-109
October 2, 2014

Ms. Mona Struble
c/o Crystal M. Woods, Division Head
Human Resources Division
Arkansas Highway & Transportation Department
10324 Interstate 30
Little Rock, Arkansas 72209

Dear Ms. Struble:

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)(i) (Supp. 2013). 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 emails indicate that someone has submitted an FOIA request for your "personnel file." The custodian has determined that the following records or information will be disclosed: employment application, resumes, references, pay scale, educational background, training and certifications, employment history, "grade transcripts (if they exist in your file)," and several other kinds of documents. The custodian does say that "the primary record in question appears to be the report (and any related documentation) which was attached to your Form 19-125 and used as the basis for" adverse employment action against you.

I have not been provided with any of the records in question. Nor have I been told how the custodian has classified the records in question. Nor do I know anything about the circumstances regarding, what the custodian identifies as, "the primary record in question." You do not explain why you object to disclosure or what specific documents you think should not be disclosed.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any of the records at issue here, and because I have not been fully apprised of the custodian's decisions, I cannot opine about the disclosure of any specific documents. But I can generally explain the rules governing the disclosure of personnel records and employee-evaluation documents. The custodian should ensure that the following procedures and standards have been applied to any documents she intends to release.

DISCUSSION

I. General standards governing disclosure

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.

The first two elements appear met in this case. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure

Under certain conditions, the FOIA exempts two groups of 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.

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.

a. Personnel-records exception

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. But 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 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 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 any particular personnel record's release 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:

• dates of birth of public employees (Op. 2007-064);
• social security numbers (Ops. 2006-035, 2003-153);
• medical information (Op. 2003-153);
• any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));
• driver's license numbers (Op. 2007-025);
• insurance coverage (Op. 2004-167);
• tax information or withholding (Ops. 2005-194, 2003-385);
• payroll deductions (Op. 98-126);
• banking information (Op. 2005-194);
• unlisted telephone numbers (Op. 2005-114);
• home addresses of most public employees (A.C.A. § 25-19-105(b)(13));
• personal e-mail addresses (Op. 2004-225); and
• marital status of employees and information about dependents (Op. 2001-080).

b. Employee-evaluation exception

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

> [I]t seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

The custodian should apply the foregoing to the records at issue here. And she should especially note that school transcripts, as they exist in employer's files, are considered personnel records and, according to this office's long-held view, are exempt from disclosure.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

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