Did the Arkansas Department of Human Services correctly classify a current employee's records as personnel records, and were its redactions consistent with FOIA?

Plain-English summary

J. Mark White, an attorney for the Arkansas Department of Human Services, used the FOIA opinion mechanism in A.C.A. § 25-19-105(c)(3)(B)(i) to check whether DHS's planned release of a current employee's personnel file complied with the statute. He sent the AG the redacted versions DHS planned to release.

AG Leslie Rutledge worked through the records and gave the Department a mixed pass.

On classification, the records were all personnel records. They were standard employee documentation: job description, application, salary information, offer letters with start dates, resume, references. None met the Thomas v. Hall (2012) definition of employee-evaluation records. Personnel records have to be released unless disclosure would constitute a clearly unwarranted invasion of personal privacy.

On disclosure, the AG applied the Young v. Rice (1992) two-step balancing test. None of the records contained information of a personal or intimate nature creating a more-than-de-minimus privacy interest. The records did not even reach the second step of the test, where the privacy interest would be weighed against the public's interest in seeing what the agency was up to (Stilley v. McBride (1998)). The records had to be released.

On the redactions, the AG identified two problems with four total redactions.

Three of the redactions were technically deficient. The redaction marks did not fully obscure the underlying text. The redacted content remained visible through whatever the Department had used to mark it out (presumably digital highlighting or a translucent overlay). A.C.A. § 25-19-105(f)(3) requires redactions to show both the amount and place of the redaction, but it equally requires the redacted information not to be readable. The fix the AG suggested: photocopy the redacted pages, or scan them into PDF. The act of copying a redacted page converts the visible redaction into an opaque mark in the copy.

One redaction was substantively improper. On a page listing the employee's home phone, work phone, and "other" phone, DHS had redacted all three. A.C.A. § 25-19-105(b)(13) protects "personal contact information" of public employees, which covers home and "other" numbers. But work phone numbers are public; they are the means by which members of the public reach a public employee about agency business. There is no basis in FOIA to redact a work number. DHS needed to leave that one visible.

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 framework here is the same as in the AG's other 2015 personnel-records opinions: A.C.A. § 25-19-103(5)(A) defines "public record"; A.C.A. § 25-19-105(b)(12) is the personnel-records exception; A.C.A. § 25-19-105(c)(1) is the employee-evaluation exception; A.C.A. § 25-19-105(c)(3)(B)(i) is the AG opinion mechanism.

A.C.A. § 25-19-105(b)(13) is the section relevant to the bad work-phone-number redaction. It exempts "personal contact information" of public employees. The AG has consistently read "personal contact information" as covering personal addresses, personal phone numbers (home, cell), and similar information that is not part of the employee's public service. Work numbers, work email addresses, and the agency's general public phone tree are not "personal contact information."

The Young v. Rice (1992) balancing test, with Stilley v. McBride (1998) (quoting the federal U.S. Dept. of Defense v. FLRA (1994)) for the measure of public interest, is the controlling Arkansas case law on personnel-record disclosure.

The AG's mechanical observation about redaction technique, photocopy or scan a marked-up document so the marks become opaque, is a practical tip that prevents the recurring problem of "redactions" that any reader can defeat with a different display setting or a lifted overlay.

Common questions

Why doesn't a redaction made on a Word document or PDF cover the underlying text?

Because many redaction tools simply place a black or gray shape over the text in the rendered document while leaving the underlying text in the file. A recipient can copy and paste, change rendering settings, or otherwise expose the text. The fix is to print the redacted page on paper or render the redacted page to an image (which flattens the rendering and discards the underlying text), then redistribute that flattened version. Most FOIA-savvy public agencies maintain a workflow that takes documents through a print/scan loop to ensure redactions are not reversible.

What is "personal contact information" under A.C.A. § 25-19-105(b)(13)?

It is the information by which someone would contact a public employee outside of their public role. Home address, home phone number, personal cell phone number, personal email address. Work-related contact information (office phone, work email, agency mailing address) is not "personal contact information" and is not exempt. The opinion specifically tells DHS that a work phone number cannot be redacted under this provision.

Could a public employee object to release of even properly classified personnel records?

The employee can object, and the AG opinion mechanism in § 25-19-105(c)(3) lets the employee request the AG's view. But the AG opinion's standard is whether the custodian's decision complies with FOIA, not whether the employee approves of the release. Where the records are properly classified as personnel records and disclosure does not violate the Young v. Rice test, the employee's objection cannot block release.

What's the difference between this opinion and the Lowell police personnel file opinion (2015-034)?

The Lowell opinion (2015-034) involved a mix of personnel records and evaluation records, with multiple problems in classification, redaction technique, and missing redactions. This opinion involves only personnel records, with just two specific problems (visible redactions and an improper work-phone redaction). The frameworks are identical; the facts are different.

What does DHS need to do in response to this opinion?

Two things. First, fix the three deficient redactions by photocopying or scanning the pages so the redacted content is fully opaque in the final version. Second, unredact the work phone number on the page listing all three phone numbers. The home phone and "other" phone redactions are fine.

Citations

Statutes: A.C.A. § 25-19-103(5)(A) (definition of public record); A.C.A. § 25-19-105(b)(12) (personnel-records exception); A.C.A. § 25-19-105(b)(13) (personal contact information); A.C.A. § 25-19-105(c)(1) (employee-evaluation 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) (public interest measurement); U.S. Dept. of Defense v. FLRA (1994) (federal analogue).

Prior AG opinions on personnel records categories: 2005-004, 95-113 (work history); 2011-013 (offer letters); 2003-060 (education); 2001-368, 2001-091, 2006-165 (resumes and references); 2003-381 (recommendation letters); 2004-225, 2012-017, 2011-125, 2007-070 (standard employee data); 1999-147 (personnel-records definition); 97-368 (typical personnel file contents); 2001-112, 2001-022, 94-198 (objective nature of privacy test).

Source

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

Original opinion text

Opinion No. 2015-016
February 18, 2015
J. Mark White, Director
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Office of Policy and Legal Services
Department of Human Services
Post Office Box 1437, Slot S260
Little Rock, Arkansas 72203-1437
Dear Mr. White:

You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request, which is made as the custodian's attorney, 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 letter indicates that someone has requested the personnel file of a current
employee of the Department of Human Services. The Department has collected
the responsive documents and determined what documents must be disclosed. You
have also forwarded the documents the Department intends to disclose, having
decided that the records are personnel records whose disclosure does not constitute
a clearly unwarranted invasion of personal privacy. The Department has also made
several redactions throughout the records. 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. Having reviewed the records, it is my opinion (1) that the records have
been properly classified as personnel records; (2) that their disclosure is required
under the FOIA because, for reasons explained below, their disclosure does not
constitute a clearly unwarranted invasion of personal privacy; and (3) that, though
most of the redactions comply with the FOIA, (a) some information has been
redacted that should be unredacted and (b) some of the redacted information is still
visible through the redactions.

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.

Based on my review, all of the attached documents are standard employee-intake
and documentation records (e.g. job description, job application, salary
information, letters confirming job offers and start dates, resumes, and references).
All these documents reflect the performance of the Department's official
functions, which makes these documents public records.

Therefore, these public records must be disclosed unless some specific exception
provides otherwise.

II. Personnel-records exception

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 the custodian has determined that the attached documents are personnel
records, I will narrow my analysis to that exception.

A. Classifying the attached documents

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.

This Office has consistently held that the types of records that are attached to your
letter clearly qualify as personnel records. Given that they pertain to the public
employee's application for, offer of, and compensation for the public position,
they clearly pertain to the employee. Further, given that none of the records
constitute employee-evaluation documents, the records qualify as personnel
records.

B. Applying the test for disclosure

When a public record qualifies as a "personnel record," the FOIA requires that the
record be disclosed unless doing so "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 by developing a two-part test that it
uses to determine whether the release of a given personnel record would constitute
such an invasion.

Under this test, courts apply a two-part 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.

Under the test's first part, 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. The fact that the subject
of the records may consider the records highly sensitive is irrelevant to the
analysis because the test is objective. If the privacy interest is merely de
minimus, then the thumb on the scale favoring disclosure outweighs the privacy
interest and the test requires that the record be disclosed. But if the privacy interest
is greater than de minimus, the custodian must determine whether that interest is
outweighed by the public's interest in disclosure. The Arkansas Supreme Court
has held that the public's interest is measured by the extent to which the record's
disclosure would "shed light on a[] [public entity's] performances of its statutory
duties or otherwise let citizens know 'what their government is up to.'"

Applying the foregoing two-part test, this Office has consistently opined that the
sort of personnel records at issue here, i.e. standard employee-intake and
documentation records (e.g. job description, job application, salary information,
letters confirming job offers and start dates, resumes, and references), must be
disclosed under the FOIA. The information contained in such records is not of a
personal or intimate nature, which means that the information does not give rise to
a greater than de minimus privacy interest. Therefore, the first prong of the Young
v. Rice test requires the records' disclosure. Accordingly, the custodian's decision
is consistent with the FOIA.

III. Redactions

The custodian has redacted several pieces of information throughout the records.
Though I have not been provided with unredacted copies, I can tell from the
record what sort of information has been redacted. In my opinion, though most of
the redactions are proper, four are not. Three of these noncompliant redactions are
deficient because the redacted information is still visible through the redaction.
The surest way to resolve this is to either photocopy the redacted pages, or scan
them into a PDF. The fourth redaction is noncompliant because there is simply no
basis for it. The latter occurs on a page that lists the current employee's phone
numbers for home, work, and "other." While it is entirely appropriate to redact the
home and "other" phone numbers, there is no basis in the FOIA to redact the
employee's work phone number.

In summary, it is my opinion that the custodian has properly classified the attached
documents as personnel records, that their disclosure is required by the FOIA, and
that, though most redactions are proper, a few are not.

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

LR/RO:cyh