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

Arkansas Department of Human Services employee Mark Speight objected to a request for his personnel file. The custodian had gathered responsive records, chosen documents for disclosure, and made redactions. Speight objected because of the requester's identity and because he believed the request was an attempt to intimidate and harass him.

After reviewing the attached records, Attorney General Leslie Rutledge agreed with the custodian's decision to disclose them. She classified them as standard personnel records and found their release would not be a clearly unwarranted invasion of personal privacy. Under the Young v. Rice balancing approach described in the opinion, the public interest in access is weighed against the individual's privacy interest, with disclosure favored. The AG said the record subject's own view that disclosure invades privacy does not decide that objective test.

The opinion separately addresses Speight's objections. Custodians generally may not take the requester's identity into account, and the General Assembly had created no generalized “harassment exception” for otherwise disclosable personnel records. The AG therefore found neither objection sufficient to change the release decision.

The AG identified two redaction issues. She saw no clear basis to redact Speight's signature throughout the records. She also directed the custodian to ensure all personnel ID numbers were redacted, including other employees' numbers; one remained visible on the last page. The opinion does not identify a specific statutory subsection as the basis for the ID-number instruction.

Currency note

This opinion was issued in 2015. Verify current FOIA law before relying on its privacy or redaction analysis. The outcome concerned the records the AG reviewed, rather than every type of personnel record or signature.

Common questions

Can an employee block release by saying the requester intends to harass them? The AG said there was no generalized harassment exception for otherwise disclosable personnel records. She also said custodians generally may not consider the requester's identity. She approved disclosure of the reviewed records despite those objections.

Did the AG say every signature in a personnel file must be released? No. She said she saw no clear basis for this custodian's redaction of Speight's signature throughout these records. She did not announce a categorical rule for every signature and context.

What had to be redacted before release?
The AG told the custodian to redact all personnel ID numbers in the attached records, including numbers belonging to other public employees. She pointed out one still visible on the last page.

Does this opinion decide what notice a custodian must give an employee? No. The opinion says Speight requested AG review under A.C.A. § 25-19-105(c)(3)(B)(i), but it does not analyze notice requirements. Anyone handling a current request should check the applicable FOIA notice provision directly.

Background and statutory framework

The opinion describes the FOIA review path in A.C.A. § 25-19-105(c)(3)(B)(i). It distinguishes personnel records from employee evaluation records, then considers only the former because none of the submitted records were evaluation records. Its personnel-record analysis follows Young v. Rice: disclosure is favored unless releasing a particular record would clearly and unwarrantedly invade personal privacy.

The AG expressly addressed the two objections Speight raised and two issues in the custodian's redactions. She did not address employee notice or give a general rule about all requests motivated by harassment.

Citations

• A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion review)
• Young v. Rice (personnel-record privacy balancing)

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