Should a Fayetteville police officer's middle initial, diploma, marital status, and views on alcohol be redacted from his personnel file under FOIA?

Plain-English summary

Officer Patrick Hanby of the Fayetteville Police Department asked the AG to review the City's release decision on his personnel file under A.C.A. § 25-19-105(c)(3)(B)(i). He wanted the AG's view on six specific categories the custodian had not redacted: middle initial, diploma, partial social security number, marital status, views on alcohol and drug use, and personal reference information.

AG Leslie Rutledge worked through each piece.

Middle initial: not exempt. No clear basis for redaction; minimal privacy interest.

Diploma: not exempt. Same analysis. (Note: this is the officer's diploma, not a school transcript. School transcripts in personnel files are exempt under a separate line of opinions.)

Partial social security number: exempt. Plainly exempt. The custodian had erred by not redacting it.

Marital status: exempt. Must be redacted from the two records where it appeared. Treated as more intimate than de minimis under Young v. Rice.

Health insurance: fully exempt. Two health insurance records had to be redacted entirely. Information about specific public employees' health insurance coverage is intimate financial information that consistently cannot be disclosed.

Police officer height and weight: fact-specific. If a specific height or weight (or range) is a condition of initial or continuing employment, the public's interest in confirming the officer meets that condition outweighs the privacy interest. If it is not a condition of employment, the privacy interest controls.

Alcohol and drug use: split. Specific information about personal alcohol or drug use carries a substantial privacy interest and must be redacted. But the AG drew a sharp distinction for law enforcement officers: the public has a substantial interest in an officer's views or attitudes about alcohol and drug use. That interest outweighs any privacy interest, so attitudinal information stays in the released records even though specific use information comes out.

Personal references' cell phone numbers and addresses: split. Redaction is proper only for personal references who are themselves public employees (per the categorical exemption at A.C.A. § 25-19-105(b)(13) for public-employee contact information). For private-citizen references, contact information stays in.

Net effect: the custodian's decision was partially consistent with the FOIA. A few additional redactions were required, and a few of the existing redactions needed to be reversed.

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

Why is a diploma releasable but a school transcript not?
The opinion treats diploma (existence of credential) as low privacy. A separate line of AG opinions (cited in companion Opinion 2015-002) treats school transcripts (showing grades, course history) as personnel records that must be redacted entirely as a clearly unwarranted invasion of privacy.

Why must alcohol/drug use be redacted but alcohol/drug views released?
Specific information about personal substance use is treated as substantially private. But the AG concluded that the public has an independent interest in knowing a law enforcement officer's attitudes toward substance use, because attitudes shape on-duty judgments (enforcement priorities, response to community substance issues, etc.). The substantive privacy interest in attitudes is treated as much weaker than the privacy interest in actual use history.

How does the height/weight rule actually work?
The custodian needs to find out whether the department or the position has a height/weight standard. If yes (for example, "officer must be between 5'4" and 6'8" and pass a fitness standard"), the public has a substantial interest in confirming compliance, and the figures get released. If there is no such standard, releasing the figures tells the public nothing about job performance, and the privacy interest carries.

What is the rule for personal references' contact information?
A.C.A. § 25-19-105(b)(13) categorically exempts public employees' home addresses and home phone numbers when contained in employer records. So if Officer Hanby listed Sergeant Smith as a personal reference, Smith's home address and phone get redacted. But if Hanby listed a private-citizen friend, that friend's contact information is not exempt under (b)(13) and the (b)(12) personnel-records balancing test treats the privacy interest as de minimis.

Could the public have ever seen Hanby's evaluation records?
Only if all four elements of A.C.A. § 25-19-105(c)(1) lined up: suspension or termination, finality, the records were the basis for the discipline, and a compelling public interest. None of that was in play here; the request was for the personnel file, not for evaluation records tied to a specific disciplinary proceeding.

Background and statutory framework

The framework is the standard FOIA personnel-records framework laid out in Young v. Rice (308 Ark. 593) and a long line of AG opinions. Personnel records under A.C.A. § 25-19-105(b)(12) are everything other than employee-evaluation records pertaining to individual employees. They are open except where disclosure would be a "clearly unwarranted invasion of personal privacy," tested as: (1) does the privacy interest exceed de minimis, and if so (2) does it outweigh the public interest?

Inside an otherwise releasable personnel record, discrete pieces of information can require redaction. The AG had developed a category-by-category line of opinions for items like social security numbers (exempt), dates of birth (exempt), marital status and family information (exempt), health insurance coverage (exempt as intimate financial info), race and gender (releasable for public employees), and so on.

A.C.A. § 25-19-105(b)(13) provides a separate categorical exemption for personal contact information of public employees (home addresses, home phone numbers) appearing in employer records.

The officer-specific analyses (height/weight, attitudes toward substance use) draw on AG opinions recognizing that the public's interest in law enforcement officers' official conduct and capacity carries unusual weight, but does not override every privacy interest. The opinion attempts to draw the line between attitudes (released) and use (redacted) for substance information, and between condition-of-employment data (released) and otherwise irrelevant data (redacted) for physical attributes.

Citations

• A.C.A. § 25-19-103(5)(A) (definition of "public record")
• 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)
• Op. Att'y Gen. 2008-163; 99-016 (health insurance coverage exempt as intimate financial info)
• Op. Att'y Gen. 2012-097 (police officer height/weight tied to condition of employment)
• Op. Att'y Gen. 2009-096; 2008-004; 95-256 (specific substance use carries substantial privacy interest)
• Op. Att'y Gen. 2010-070 (references' contact info generally disclosable)

Source

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

Official summary

Is the decision of the custodian of records to release personnel records without redacting certain information (middle initial, diploma, marital status, views on alcohol/drug use, personal reference information) in response to a Freedom of Information Act ("FOIA") request consistent with provisions of the FOIA?

RESPONSE: The custodian's decision in this case is partially consistent with the FOIA. Marital status, health insurance info, and specific info. about alcohol/drug use are generally exempt from disclosure under the personnel records balancing test. Also, a police officer's height and weight info. may or may not be exempt, depending upon whether a specific height/weight (or range of heights/weights) is a condition of initial or continuing employment. But in my opinion the public has a substantial interest in a law enforcement officer's views or attitudes regarding alcohol/drug use, and that interest outweighs any privacy interest in that respect. Additionally, it is my opinion that the redaction of personal references' cell phone numbers and addresses is proper only as to public employee references.

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-008

January 20, 2015

Patrick Hanby
Fayetteville Police Department
100 West Rock Street
Fayetteville, Arkansas 72701

Dear Officer Hanby:

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.

The correspondence you have provided indicates that you are employed as a patrol officer with the City of Fayetteville, someone has made a request under the FOIA for your personnel file, and the custodian of records for the City intends to release the file after making certain redactions. You state that the issues you have with the custodian's decision are few. You have submitted the records to my office, and you have questioned whether the following additional pieces of information must be redacted prior to the records' release: middle initial, diploma, partial social security number, marital status, views on alcohol and drug use, personal reference information.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Per your request, this opinion is limited to the custodian's decision with respect to the particular information you have identified. As explained below, that decision is partially consistent with the FOIA, in my opinion.

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 Fayetteville, 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.

All the documents you have submitted plainly meet this definition. Therefore, in my opinion, they 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.

The first of these two exceptions, the one for "personnel records," appears to be the relevant exception in this case. The FOIA does not define the term "personnel records," but this office has consistently opined that it means 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. Additionally, 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 under the above balancing test.

III. Application.

We can now apply the foregoing to the discreet pieces of information you have identified. With regard to a middle initial, I have been provided no information in support of this redaction, and I see no clear basis for concluding that the above balancing test requires that a middle initial be redacted from a personnel record. Absent some evidence to the contrary, I see only a minimal privacy interest in this information and thus conclude that there is no basis for its redaction from the records at hand. Similarly, in my opinion, a diploma is not exempt from disclosure. But I believe you are correct to object to the failure to redact the partial social security number, as well as the marital status information that has not been redacted from two of the records. This information is plainly exempt from disclosure. Additionally, there are two health insurance records that must be redacted entirely. This office has consistently opined that information about specific public employees' health insurance coverage is intimate financial information that cannot be disclosed.

A question also arises regarding the redaction of height and weight information from another record. This office has previously opined that the question whether a police officer's height and weight are properly disclosed under the FOIA turns on whether a specific height/weight (or range of heights/weights) is a condition of initial or continuing employment. If height/weight is a condition, then the public's interest in the information will be substantial and will outweigh the privacy interest under the applicable balancing test. In contrast, if the height/weight is not a condition of employment, then the public's interest does not outweigh the privacy interest in this data because the record(s) would reflect very little about the department's performance of its duties.

Regarding references to alcohol and drug use, this office has previously opined that specific information about alcohol and drug use generally gives rise to a substantial privacy interest. But in my opinion, the public has a substantial interest in a law enforcement officer's views or attitudes in this regard. Accordingly, it is my opinion that a few additional redactions to these records are required to remove the references to personal use of these substances; but in my opinion, that is the extent of the required redactions in this respect.

With regard, finally, to personal references' cell phone numbers and addresses, it is my opinion that redaction is proper only as to public employee references. Otherwise, there is no clear basis, in my opinion, for redacting this contact information. These pieces of information are not exempt under A.C.A. § 25-19-105(b)(12), the "personnel records" exemption, because any privacy interest the employee might have in the information is de minimus. Nor is this information exempt under any other provision of law, in my opinion. There is no other applicable statutory exemption. And this office has previously opined that the addresses and telephone numbers of a job applicant's references when contained in a non-exempt public record are not exempt from disclosure.

In sum, it is my opinion that the custodian's decision with regard to the particular information you have identified is partially consistent with the FOIA. The records are properly classified as personnel records, in my opinion, and the custodian has properly declined to redact some of this information. However, it is my opinion that some of the redactions are inconsistent with the FOIA, and several additional redactions are necessary.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General

LR/EAW:cyh