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