What rules govern the release of a Pulaski County former employee's employment records under the Arkansas FOIA?
Plain-English summary
Debra Canady, a former Pulaski County Sheriff's Office employee, asked the AG to review the custodian's decision to release her employment records. She did not specify which records, what the FOIA request sought, what the custodian decided, or why she objected.
AG Dustin McDaniel could not give a substantive review without that information. Instead, the opinion laid out the general FOIA framework for employee-related records, leaving the custodian to apply it to the actual records in this case.
The framework has three parts.
Threshold: is it a public record? Under A.C.A. § 25-19-103(5)(A), a document is a public record if it is kept by a public entity and constitutes a record of the performance or lack of performance of official functions. Records held by the county and pertaining to county employment generally meet this definition.
Personnel records. A.C.A. § 25-19-105(b)(12) protects "personnel records" from disclosure to the extent disclosure would constitute a "clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test asks (1) whether the privacy interest exceeds de minimis and (2) if so, whether it outweighs the public interest in disclosure. The thumb on the scale favors disclosure. Even within a record that is releasable as a whole, certain items routinely require redaction:
- dates of birth of public employees
- social security numbers
- medical information
- identifying info on undercover law enforcement officers (A.C.A. § 25-19-105(b)(10))
- driver's license numbers
- insurance coverage
- tax information or withholding
- payroll deductions
- banking information
- unlisted telephone numbers
- home addresses of most public employees (A.C.A. § 25-19-105(b)(13))
- personal e-mail addresses
- marital status and information about dependents
Employee evaluation records. A.C.A. § 25-19-105(c)(1) treats records (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) detailing performance or lack of performance, very differently. These stay sealed unless all four conditions are met: suspension or termination, final administrative resolution, the records were the basis for the discipline, and a compelling public interest. Thomas v. Hall adopted that definition.
The AG's opinion under A.C.A. § 25-19-105(c)(3)(B)(i) requires the requesting party to give the office enough information to opine: the records, the custodian's specific decision, and (ideally) the basis for the objection. Without those, the AG can only describe the law and leave the custodian to apply it.
Currency note
This opinion was issued in 2014. 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.
Common questions
Why couldn't the AG just review the records?
Because the requester did not submit them. The statutory review procedure (A.C.A. § 25-19-105(c)(3)(B)(i)) lets the AG opine on whether a custodian's release decision is consistent with the FOIA, but the AG needs enough information to do the analysis. The opinion noted that the office is "wholly unable to provide any substantive review" without the records, the FOIA request, and the custodian's specific decision.
Does former-employee status change the FOIA analysis?
Generally no. The personnel-records exemption at § 25-19-105(b)(12) and the public-employee contact information exemption at § 25-19-105(b)(13) both apply to former and current public employees. The substantive privacy and public-interest analyses run the same way.
What's the difference between personnel records and employee evaluation records?
"Personnel records" cover everything other than evaluation/performance records that pertains to individual employees: applications, transcripts, payroll documents, transfers, insurance forms, performance evaluations (themselves typically classified separately), recommendation letters, disciplinary-action records, leave requests, certificates, and legal documents like subpoenas. They are open under the Young v. Rice balancing test. "Employee evaluation or job performance records" are narrower: records the employer created to evaluate the employee, detailing performance. They are sealed unless the four-element test is satisfied.
What does "compelling public interest" mean?
The FOIA does not define it. AG opinions and the Watkins & Peltz treatise consider: (1) the nature of the infraction (especially violations of public trust or gross incompetence), (2) existence of a related public controversy, (3) the employee's position or rank. A general interest in public-employee performance is not enough.
Are there categorical exemptions inside otherwise-releasable personnel records?
Yes. The opinion lists more than a dozen: SSNs, DOBs, medical info, driver's license numbers, insurance, tax/payroll/banking info, undercover officer identifying info, home addresses, personal e-mails, marital and dependent info, etc. These come out even if the overall record is releasable.
Background and statutory framework
Arkansas FOIA distinguishes "personnel records" (open absent clearly unwarranted invasion of privacy) from "employee evaluation or job performance records" (sealed unless four conditions are met). The personnel-records test was elaborated by the Arkansas Supreme Court in Young v. Rice, 308 Ark. 593 (1992). The evaluation-records definition was adopted in Thomas v. Hall, 2012 Ark. 66, with the four-element release test codified at A.C.A. § 25-19-105(c)(1).
A.C.A. § 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject of personnel or evaluation records the right to ask the AG to opine on a release decision. The procedure is essentially a quasi-administrative review: the parties submit records and arguments, the AG looks at them, and the AG issues a written opinion stating whether the release is consistent with the FOIA.
The AG and the leading commentators (Watkins & Peltz, The Arkansas Freedom of Information Act, 5th ed. 2009) have developed an extensive line of opinions on line-item redactions: SSNs, DOBs, medical info, banking info, marital status, and others.
Citations
- A.C.A. § 25-19-103(5)(A) (definition of "public record")
- A.C.A. § 25-19-105(b)(10) (undercover law enforcement identifying info)
- A.C.A. § 25-19-105(b)(12) (personnel records exemption)
- A.C.A. § 25-19-105(b)(13) (public employee contact info exemption)
- A.C.A. § 25-19-105(c)(1) (employee evaluation records release test)
- A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion procedure)
- Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
- Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
- Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
- Op. Att'y Gen. 2007-064 (dates of birth)
- Op. Att'y Gen. 2007-025 (driver's license numbers)
- Op. Att'y Gen. 2004-225 (personal e-mail addresses)
- Op. Att'y Gen. 2008-065 (employee evaluation release test)
Source
Official summary
Is the decision of the custodian of records to release the employment records of a former employee in response to a Freedom of Information Act ("FOIA") request consistent with provisions of the FOIA?
RESPONSE: Because I lack sufficient information to provide a substantive review of the custodian's decision, I will simply explain how the FOIA applies to "employment records."
Original opinion text
STATE OF ARKANSAS
THE ATTORNEY GENERAL
Dustin McDaniel
Opinion No. 2014-139
December 18, 2014
Debra Canady
c/o Lt. G. Evans, Professional Standards
Pulaski County Sheriff's Office
2600 South Woodrow Street
Little Rock, Arkansas 72204
Dear Ms. Canady:
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.
You indicate that someone has requested your "employment records." You do not say, specifically, what the request seeks. You say that the custodian has decided to release your "employment records," but you do not provide any further detail. Nor do you say why you object to the disclosure. Instead, you simply ask for my opinion on the decision to release your records.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I have not seen any of the records at issue. Nor have I seen the FOIA request itself or been apprised of the custodian's decision as to any particular record. Nor have I seen what the custodian has decided. Therefore, I am wholly unable to provide any substantive review. Instead, I will simply explain how the law governs "employment records."
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. As for the first element, the documents are held by the county, which is a public entity. As for the second element, the FOIA defines "public record" as:
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.
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:
-
The employee was suspended or terminated (i.e., level of discipline);
-
There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
-
The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
-
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.
Again, because I lack even the most basic information needed to review your request, I am unable to conduct a substantive review of the custodian's decision.
Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.
DM/RO:cyh