Are a city employee's emails, expenses, travel records, and personnel file subject to FOIA disclosure?

Plain-English summary

City of Little Rock employee Rashaad Daniels asked the AG to review the custodian's decision to release a broad set of records: emails, letters, memos, reports, expenses, travel records, employment dates, and personnel records spanning three years. The request invoked the personnel-records review procedure in A.C.A. § 25-19-105(c)(3)(B)(i).

AG Leslie Rutledge could not give a record-specific opinion because Daniels never submitted the actual records. Instead, the opinion laid out the general FOIA framework for the custodian to apply.

The key takeaways:

What is clearly a public record. Job-related reports, expenses, travel records, and information on dates of employment are public records and must be released unless an exception applies.

Emails, letters, and memos: it depends. Whether they qualify as public records depends on whether they document the performance or lack of performance of official functions. Some emails are clearly public-record material (correspondence about agency business). Some are not (personal correspondence using a work account incidental to employment). The Arkansas Supreme Court's Pulaski County v. Arkansas Democrat-Gazette decisions (2007) frame the analysis. Each email needs an individualized review.

Typical line-item redactions. Even where a record is broadly releasable, certain items routinely get pulled out:

• 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: four-element test. If any of the records qualify as employee evaluation or job performance records (created by the employer to evaluate the employee, detailing performance), they stay sealed unless all four release conditions are satisfied: discipline at suspension/termination level, finality of the proceeding, the records were the basis for the discipline, and a compelling public interest in disclosure exists.

The AG declined to opine on whether a compelling public interest existed, because that determination depends on the records, the position, and the surrounding facts, none of which were before the office. The custodian has to make that call in the first instance.

Currency note

This opinion was issued in 2015. 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

Are work emails always public records?
No. Whether a particular email is a public record turns on content and context. The 2007 Pulaski County v. Arkansas Democrat-Gazette decisions established that emails on a public computer or account are not automatically public records just because the account is government-owned. The test is whether the message records the performance or lack of performance of official functions.

What about personal emails sent on a work account?
Generally not public records under the Pulaski County analysis, unless they document official functions. A grocery list emailed from a work computer is not a public record.

Does the requester's purpose matter?
No. The opinion expressly notes that the FOIA requester's identity or motive is generally irrelevant. The records are open or they are not; the question of who is asking and why does not flip the answer.

Who decides whether a compelling public interest exists for evaluation records?
The custodian, in the first instance. Factors include the nature of the infraction (especially violations of the public trust or gross incompetence), the existence of a related public controversy, and the employee's position. A general interest in public-employee performance is not enough.

What is the practical impact of this opinion?
It is essentially a tutorial on FOIA personnel-records analysis, with no binding application to specific documents. The custodian had to take the framework and apply it to the actual records on a case-by-case basis.

Background and statutory framework

A.C.A. § 25-19-103(5)(A) defines "public record" broadly, but with a functional limitation: the record must constitute "a record of the performance or lack of performance of official functions." This is the threshold question for any FOIA analysis.

If a document is a public record, the custodian works through the exemption list. The two FOIA personnel-related exemptions are:

• § 25-19-105(b)(12) (personnel records): open except where disclosure would be "a clearly unwarranted invasion of personal privacy," tested under Young v. Rice.
• § 25-19-105(c)(1) (employee evaluation or job performance records): closed unless all four conditions for release are met.

Several categorical exemptions in subsection (b) carve out particular items (undercover officers' identifying information at (b)(10), public employees' home contact information at (b)(13), and others).

The 2007 Pulaski County v. Arkansas Democrat-Gazette decisions clarified that emails sent or received using public computers are not categorically public records, and the official-functions test applies on a message-by-message basis.

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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Pulaski County v. Arkansas Democrat Gazette Inc., 370 Ark. 435, 260 S.W.3d 718 (2007)
• Pulaski County v. Arkansas Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007)
• 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. 2013-002 (email analysis under Pulaski County)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Official summary

Did the custodian properly decide to release an employee's personnel records in response to a Freedom of Information Act ("FOIA") request for "copies of any and all emails, letters, memos, and reports sent to or by [the employee] from January 1, 2012 to January 7, 2015, as well as expenses, travel reports, information on dates of employment, and personnel records?"

RESPONSE: I have not seen any of the records at issue and I do not know the basis for your objection to their release. Consequently, I cannot opine about the disclosure of any specific documents. I can comfortably opine that job-related reports, expenses, and travel records, and information on dates of employment are "public records." But emails, letters and memos may or may not meet the above definition, depending upon their content and any other pertinent surrounding facts. If, in fact, those records are determined to be "public records" as defined by the FOIA, then they, along with the other records, must be disclosed unless some specific exception provides otherwise. See Opinion for general discussion of the rules governing the disclosure of employee-related records. The custodian must apply these definitions and standards to each record when making the disclosure decision.

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-004

January 16, 2015

Rashaad Daniels
c/o Sharre A. Brooks
500 West Markham, Suite 130W
Little Rock, Arkansas 72201-1428

Dear Mr. Daniels:

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 correspondence indicates that someone has requested "copies of any and all emails, letters, memos, and reports sent to or by Rashaad Daniels from January 1, 2012 to January 7, 2015, as well as expenses, travel records, information on dates of employment, and personnel records" under the FOIA. The records custodian has determined that the requested records and information constitute personnel records and are releasable pursuant to the FOIA. You ask whether these decisions are consistent with the FOIA.

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 and I do not know the basis for your objection to their release. Consequently, I cannot opine about the disclosure of any specific documents. But I can generally explain the rules governing the disclosure of employee-related records. The custodian must apply these definitions and standards to each record when making the disclosure decision.

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 City of Little Rock, 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.

The custodian has presumably determined that all the requested records meet this definition. I am unable, for the reasons stated above, to fully assess that determination. I can comfortably opine that job-related reports, expenses, and travel records, and information on dates of employment are "public records." But emails, letters and memos may or may not meet the above definition, depending upon their content and any other pertinent surrounding facts. If, in fact, those records are determined to be "public records" as defined above, then they, along with the other records, 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.

In conclusion, because I have not reviewed the actual records in question or been sufficiently apprised of the surrounding facts, I cannot render any definitive opinion regarding the custodian's decision. I am instead limited to explaining the general law governing the records' release. The custodian must apply these definitions and tests to each record to determine whether the FOIA requires its public disclosure.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General

LR/EAW:cyh