Can an Arkansas public employee block release of his personnel file by arguing that the FOIA requester is trying to harass him?

Plain-English summary

Mark Speight, an employee of the Arkansas Department of Human Services, learned that someone had filed a FOIA request for his personnel file. The custodian collected the responsive documents, determined what to disclose, and made redactions on the documents she planned to release. Mr. Speight objected to disclosure on two grounds, both about the requester's motivation rather than the substance of the documents. First, he objected because of the identity of the person making the FOIA request. Second, he believed the request was an attempt to intimidate him and invade his private life as a form of harassment. He used A.C.A. § 25-19-105(c)(3)(B)(i) to ask AG Leslie Rutledge whether disclosure complied with FOIA.

The AG's answer was no on both grounds.

On the requester's identity, the AG cited a long line of prior AG opinions establishing that custodians "are generally not permitted to take the requester's identity into account" when deciding whether to release records. The FOIA's framework asks whether the records are public records, whether they are personnel records, and whether disclosure would constitute a clearly unwarranted invasion of privacy. The identity of the person making the request does not appear in any of those tests. (Op. Att'y Gen. 2013-027 makes the same point.)

On the alleged harassment, the AG was equally direct: "The General Assembly has not seen fit to establish a generalized 'harassment exception' to the release of otherwise discloseable personnel records." The legislature has created specific exemptions (personnel records, evaluation records, undercover law enforcement, personal contact information), but it has not authorized a custodian to withhold otherwise releasable records on the basis that the requester might use them to harass the subject. (Op. Att'y Gen. 2013-080 confirms the lack of any such exception.) Mr. Speight's belief about the requester's intent, even if accurate, was not a basis to withhold the records.

The substantive disclosure analysis was straightforward. The documents were public records by A.C.A. § 25-19-103(5)(A). None were employee-evaluation records, so the personnel-records exception in A.C.A. § 25-19-105(b)(12) controlled. Applying the Young v. Rice (1992) two-step balancing test, the AG concluded none of the records contained personal or intimate information giving rise to a greater than de minimus privacy interest. The records were standard personnel records subject to release.

The AG flagged two technical concerns. First, the custodian had redacted Mr. Speight's signature throughout the documents. The AG saw no clear basis for that redaction under the Young v. Rice balancing test. Public employees' signatures on personnel documents are not protected information; they document that the employee acknowledged or accepted some employment action and reflect the public employee's official conduct. Second, the AG noted a personnel ID number visible on the last page of the redacted documents that should have been redacted under A.C.A. § 25-19-105(b)(11), which exempts "[r]ecords containing measures, procedures, instructions, or related data used to cause a computer or a computer system or network . . . to perform security functions, including, but not limited to, passwords, personal identification numbers." The custodian needed to redact that number (and the personnel ID numbers of any other public employees that appeared in the documents) before release.

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.

Background and statutory framework

The Arkansas FOIA framework is the same as in the AG's other 2015 personnel-records opinions. A.C.A. § 25-19-105(b)(12) is the personnel-records exception. A.C.A. § 25-19-105(c)(1) is the evaluation-records exception. A.C.A. § 25-19-105(c)(3)(B)(i) is the AG opinion mechanism. Young v. Rice (1992) is the controlling balancing test.

The two distinguishing features of this opinion are the two procedural objections raised by the employee. Both are firmly settled by prior AG opinions.

On requester identity, the rule traces back through Op. Att'y Gen. 2013-027 (footnote 4) and many earlier opinions. The Arkansas FOIA is requester-blind. A custodian cannot favor or disfavor requests based on who is asking. A request from a journalist gets the same treatment as a request from a private investigator gets the same treatment as a request from a relative of the employee. The only thing that matters is what the records are.

On the harassment objection, Op. Att'y Gen. 2013-080 establishes that no generalized harassment exception exists. The legislature has enumerated specific exemptions; none of them is harassment. A custodian who withheld records based on a personal sense that the requester intended harassment would be inserting an exemption the legislature did not create.

A.C.A. § 25-19-105(b)(11) is the basis for the personnel ID redaction. The provision covers PINs, passwords, and similar security data. A personnel ID number used by an employer to identify an employee in internal systems falls within "personal identification numbers" if the number functions as a credential for any agency system.

Common questions

Can I block release of my own personnel file under Arkansas FOIA?

Generally no. The Arkansas FOIA creates a presumption of disclosure for public records, including personnel records of public employees. You can ask the AG to opine on whether the custodian's release complies with FOIA (that is what Mr. Speight did here), but the AG opinion is not binding and, more importantly, the standards do not include your personal objection. Standards include: are the records public records, are they personnel or evaluation records, and would disclosure constitute a clearly unwarranted invasion of privacy. None of those tests turns on your consent.

Why doesn't the requester's identity matter?

Because the FOIA is structured around the records, not the requester. If the records are public records that have to be released, they have to be released to whoever asks. Asking custodians to evaluate the requester's intent would put them in the business of making subjective judgments about people's motives, which the legislature has not asked them to do. It would also create discriminatory access (some requesters get records, others don't), which contradicts the FOIA's goal of equal access to public information.

What if a requester is actually using FOIA to harass someone?

The remedy is not in the FOIA framework. If a particular requester is using the underlying records to harass a public employee (calling them at home, threatening them, harassing their family), the employee may have remedies under criminal law (stalking, harassment statutes) or civil law (intentional infliction of emotional distress, harassment-related tort claims). What the employee cannot do is fold those concerns back into FOIA to suppress the records themselves.

Was the signature redaction really improper?

The AG flagged it but did not say it was definitely wrong; she said she saw "no clear basis for concluding that the balancing test for personnel records requires this redaction." Signatures are not categorically protected. In rare cases a signature could appear in a context where its disclosure raises specific risks (for example, on a sensitive financial document where it could be used for identity fraud), and a custodian might justify redaction on those specific facts. As a default rule, a public employee's signature on a personnel document is releasable.

What about the personnel ID number?

That was the AG's only firmly identified redaction error in the other direction. A.C.A. § 25-19-105(b)(11) exempts personal identification numbers used as system credentials. A personnel ID number that functions as a credential to access any agency system is within that exemption. The custodian missed one on the last page and needed to redact it (along with any other public employees' personnel ID numbers that appeared elsewhere in the documents) before release.

Can a public employee at least get notice when their file is requested?

Some agencies provide notice as a matter of internal policy, even though FOIA does not require it. The AG opinion mechanism in A.C.A. § 25-19-105(c)(3) presupposes that the subject of the records has at least some opportunity to be heard before disclosure; the agency typically has to provide notice for that mechanism to be meaningful. But the FOIA itself does not impose a notice requirement on the custodian.

Citations

Statutes: A.C.A. § 25-19-103(5)(A) (definition of public record); A.C.A. § 25-19-105(b)(11) (security-function data, including personal identification numbers); A.C.A. § 25-19-105(b)(12) (personnel-records exception); A.C.A. § 25-19-105(c)(1) (evaluation-records exception); A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism).

Cases: Young v. Rice (1992) (balancing test); Stilley v. McBride (1998) (burden on resister of disclosure).

Prior AG opinions: 2013-027 n.4 (immateriality of requester's identity); 2013-080 (no generalized harassment exception); 1999-147 (personnel-records definition); 2001-112, 2001-022, 94-198 (objective nature of privacy test); 2006-176, 2004-260, 2003-336, 98-001 (privacy analysis is fact-specific); 97-368 (typical personnel file contents).

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2015-011
January 22, 2015

Mark Speight
c/o Lori McDonald
Arkansas Department of Human Services
Office of Policy and Legal Services
Post Office Box 1437, S260
Little Rock, Arkansas 72203
Dear Mr. Speight:

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), which 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 your "personnel file."
The custodian has gathered the responsive documents, determined which of those
must be disclosed, and redacted certain information on the documents she intends
to disclose. You object to disclosure because of the identity of the person making
the FOIA request and because you believe the FOIA request is solely an attempt to
"intimidate [you] and invade [your] private life as a form of harassment."

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. Having reviewed the records at issue, it is my opinion that the custodian's
decision to disclose these documents is consistent with the FOIA.

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 are met in this case. As for the first element, the documents
are held by a state agency, 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 attached documents clearly qualify as public records. 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.

Because none of the records at issue are employee-evaluation records, I will only
address the personnel-records exception.

While the FOIA does not define the term "personnel records," 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.

III. Application

We can now apply the foregoing to the attached documents. The attached
documents are all standard personnel records, and their disclosure does not
constitute a clearly unwarranted invasion of personal privacy.

Your objection to disclosure is based (1) on the requester's identity and (2) on your
view that the requester intends to harass you. This office has long noted that
custodians are generally not permitted to take the requester's identity into
account. The General Assembly has not seen fit to establish a generalized
"harassment exception" to the release of otherwise discloseable personnel records.
Therefore, neither basis for your objection is sufficient to overcome the foregoing
conclusion that the custodian's decision is consistent with the FOIA.

Two additional issues bear mention. First, the custodian has redacted your
signature throughout. I see no clear basis for concluding that the balancing test for
personnel records requires this redaction. Second, the custodian should ensure that
all personnel ID numbers are redacted from the attached documents, including
those of other public employees. One such number is visible on the last page of
the attached documents.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General

LR/RO:cyh