Was the Arkansas Treasurer's planned release of a former employee's personnel file consistent with FOIA, and was the redaction of his remaining leave balance proper?

Plain-English summary

Sam Swayze, a former employee of the Arkansas Office of State Treasurer, learned that someone had filed an Arkansas FOIA request for his personnel file. The Treasurer's Office prepared the documents with redactions and planned to release them. Mr. Swayze objected to the release and used the procedure in A.C.A. § 25-19-105(c)(3)(B)(i) to ask AG Leslie Rutledge whether disclosure complied with FOIA.

The AG worked through the records and gave a nearly clean bill of health to the Treasurer's Office, with one specific exception.

All of the documents were "personnel records" under Arkansas FOIA. They were standard employee intake and documentation records: job application, resume, vehicle authorization forms, salary information, leave information. None were employee evaluations under Thomas v. Hall (2012). The applicable disclosure rule was the personnel-records exception in A.C.A. § 25-19-105(b)(12), which requires release unless disclosure would be a "clearly unwarranted invasion of personal privacy." Applying the Young v. Rice (1992) balancing test, with its thumb on the scale toward disclosure, the AG concluded none of the records contained information of a personal or intimate nature that would give rise to a greater than de minimus privacy interest. The first prong of the test required disclosure. The records did not even reach the second prong, where the privacy interest gets weighed against the public interest in "shedding light on the public entity's performance of its statutory duties" (Stilley v. McBride, 1998, quoting U.S. Dept. of Defense v. FLRA, 1994).

The custodian's redactions were almost all proper, with one exception. On one of the records, the Treasurer's Office had redacted the remaining hours of leave accrual. The AG cited the office's longstanding view that "employee leave records are generally subject to release under the FOIA." Mr. Swayze's leave accrual balance did not satisfy the personnel-records exception. The redaction should be removed before release.

The AG did not see other unredacted-copies of the documents, so the opinion's clean bill of health on the other redactions reflected what could be inferred from the visible redaction marks. As long as the redacted items fell into the standard categories (Social Security numbers, dates of birth, medical information, banking information, marital status and dependent information, personal contact information), the redactions were defensible.

Mr. Swayze's status as a former employee did not change the analysis. FOIA applies to personnel records of public employees regardless of whether they are currently working.

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, A.C.A. § 25-19-101 et seq., creates a strong presumption of disclosure. A.C.A. § 25-19-103(5)(A) defines "public record" broadly. A.C.A. § 25-19-105(b)(12) creates the personnel-records exception, allowing withholding only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." A.C.A. § 25-19-105(c)(1) creates the employee-evaluation exception, which is stricter.

The Young v. Rice (1992) balancing test has two steps. First, the custodian determines whether the privacy interest is more than de minimus. If yes, the custodian then weighs that interest against the public's interest in disclosure, which is measured by how much the disclosure would "shed light on" what the government is up to (Stilley v. McBride (1998), quoting U.S. Dept. of Defense v. FLRA (1994)). The exceptions are narrowly construed, with the burden on the party resisting disclosure.

Thomas v. Hall (2012) adopted the AG's definition of "employee evaluation or job performance records" as records created by or at the behest of the employer, to evaluate the employee, that detail performance or lack of performance.

Leave records are a recurring category. The AG cites Op. Att'y Gen. 2013-003 and 2007-258 for the general rule that leave records are subject to FOIA release. The reasoning is that leave usage and leave balances reflect how a public employee is spending public time, not personal information about the employee's medical condition or family circumstances.

The opinion identifies a long list of related categories that are personnel records subject to release: work history (Ops. 2005-004, 95-113), offer letters (Op. 2011-013), educational and professional backgrounds (Ops. 2004-147, 2003-060), resumes and references (Ops. 2001-368, 2001-091, 2006-165), recommendation letters (Op. 2003-381), standard employee data (Ops. 2004-225, 2012-017, 2011-125, 2007-070), resignation letters (Op. 2012-019), and leave records (Ops. 2013-003, 2007-258).

Common questions

Is a former employee's personnel file public under Arkansas FOIA?

Generally yes, on the same terms as a current employee's file. FOIA does not distinguish between current and former public employees for purposes of the personnel-records exception. The same balancing test applies; the same categories of mandatory redactions apply. A former employee's status alone does not strengthen the privacy interest enough to defeat disclosure.

Why is leave accrual not protected?

Leave records reflect how the employee allocated time on the job. The accrual balance shows how much paid leave the employee has earned and how much they have used. That information is about the employee's compensation and the agency's leave administration, not about personal or intimate matters. The AG has consistently held that leave records are subject to release.

What if the employee's leave was used for a sensitive purpose?

The fact of leave usage is releasable; the underlying medical or personal reason for the leave can be redacted as medical information. So "took 40 hours of leave on these dates" is public; "took 40 hours of FMLA leave to recover from surgery" is partially public (the FMLA usage and dates) and partially redacted (the medical reason).

Why does the AG say there is no "greater than de minimus" privacy interest in standard intake records?

Because the records are about the employee's qualifications for, terms of, and conduct in a public position. Job applications, resumes, salary records, and references are not personal or intimate information; they are the basic biographical and professional information by which the public can assess whether a public employee is qualified. The Young v. Rice balancing test puts a thumb on the scale toward disclosure precisely because public employees have a reduced privacy interest in records about their public employment.

Can the former employee block release by filing this kind of opinion request?

No. The opinion mechanism in A.C.A. § 25-19-105(c)(3) gets the AG's view on whether the custodian's decision complies with FOIA. The AG opinion is not binding. If the AG says the release complies with FOIA, the former employee's options are to seek injunctive relief in court or accept the release. If the AG says the release violates FOIA, the requester can do the same.

What does the custodian need to fix in light of this opinion?

Unredact the remaining hours of leave accrual on the affected document, then release the records. The other redactions are defensible based on what the AG could see from the visible redaction marks.

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(c)(1) (employee-evaluation exception); A.C.A. § 25-19-105(c)(3)(B)(i) (AG opinion mechanism).

Cases: Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-part balancing test); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (public interest as shedding light on government); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of evaluation records); U.S. Dept. of Defense v. FLRA, 510 U.S. 487 (1994) (federal analogue on public interest measurement).

Prior AG opinions: 2005-004, 95-113 (work history); 2011-013 (offer letters); 2004-147, 2003-060 (educational and professional backgrounds); 2001-368, 2001-091, 2006-165 (resumes and references); 2003-381 (recommendation letters); 2004-225, 2012-017, 2011-125, 2007-070 (standard employee data); 2012-019 (resignation letters); 2013-003, 2007-258 (leave records); 2001-112, 2001-022, 94-198 (objective nature of privacy test); 1999-147 (personnel-records definition).

Source

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

Original opinion text

Opinion No. 2015-019
February 26, 2015
Mr. Sam Swayze
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Kristina Duke, Human Resources Director
Treasurer of State
1401 West Capitol, Suite 275
Little Rock, Arkansas 72201
Dear Mr. Swayze:

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.

You are a former employee of the Arkansas Office of State Treasurer, and you have been informed by that office that someone has made a request under the FOIA for your personnel file. You have forwarded to my office the documents the Treasurer's Office intends to disclose after making certain redactions. You object to the records' release and you ask for my review.

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 that with the exception of one redaction, discussed below, the custodian's decision to release the records as redacted 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.

Based on my review, all of the attached documents are either standard employee- intake and documentation records (e.g., job application and resume, vehicle authorization forms, salary and leave information), or they otherwise reflect the performance of the official functions of the Treasurer's Office, 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 the record be disclosed.

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. The FOIA likewise does not define "employee evaluation or job performance records." But the Arkansas Supreme Court has 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.

According to my review, none of the records at issue constitute employee- evaluation documents. Rather, in my opinion, they qualify as personnel records under this office's historic definition of that term.

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 FOIA test, this office has consistently opined that the standard employee-intake and documentation records at issue here (e.g., your job application and resume, professional background information, salary and leave information) must be disclosed. In my opinion, the remaining records must also be disclosed under this test. The information contained in the 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.

C. Redactions

The custodian has redacted several pieces of information from a number of the records. Though I have not been provided with unredacted copies, I can tell from the records what sort of information has been redacted. In my opinion, though most of the redactions are proper, one is not. In my opinion, the redaction of the remaining hours of leave accrual on one of the records is noncompliant. This office has consistently opined that employee leave records are generally subject to release under the FOIA.

In summary, it is my opinion that the documents in question are properly classified as personnel records whose disclosure is required by the FOIA. And though most of the redactions made by the custodian are proper, one is not.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh