Can Arkansas's Alcoholic Beverage Control Division withhold the identities of minor 'cooperating individuals' it uses in undercover alcohol compliance checks from a Freedom of Information Act request?

Plain-English summary

The Arkansas Alcoholic Beverage Control Division uses minors (typically 16 to 20 years old) as "cooperating individuals" in compliance-check operations: the minor walks into a licensed retailer and tries to buy alcohol, and the agency uses the result to enforce sale-to-minor laws. Someone filed a FOIA request asking for "all documents that provide details and information regarding undercover operatives used by the [ABC] Division for the past three calendar years." The ABC Division decided to withhold information identifying the minors, citing the personnel-records exception in Ark. Code Ann. § 25-19-105(b)(12), and asked the AG whether that decision was consistent with FOIA.

The AG's role under § 25-19-105(c)(3)(B)(i) is to issue a yes-or-no opinion on whether a custodian's decision about personnel records or employee-evaluation records is consistent with FOIA. The AG cannot do factfinding, so the AG assumed (without independently confirming) that the records were properly classified as personnel records and worked from there.

The personnel-records exception works in two steps. First, a record qualifies as a personnel record if it pertains to an individual employee. Second, even if it qualifies, it must still be disclosed unless disclosure "would constitute a clearly unwarranted invasion of personal privacy" under § 25-19-105(b)(12).

The Arkansas Supreme Court in Young v. Rice (1992) developed a two-part balancing test for the "clearly unwarranted invasion" determination. Step one: is the information of a personal or intimate nature giving rise to a greater-than-de minimis privacy interest? Step two: if yes, is that privacy interest outweighed by the public's interest in disclosure (measured by whether disclosure would "shed light on an agency's performance of its statutory duties or otherwise let citizens know what their government is up to," per Stilley v. McBride quoting Department of Defense v. FLRA)?

Applying that framework, the AG concluded:

• The minors had a clear privacy interest in not being identified as ABC undercover operatives. Identification carried obvious potential for embarrassment, harassment, or retaliation. That was well above de minimis.
• The public had some legitimate interest in knowing about the program (whether ABC uses such operatives, the general approach, the outcomes), but no significant interest in the specific identities of the minor participants. Knowing who the operatives are by name did not "shed light on the agency's performance" in any meaningful way.

So the privacy interest outweighed the public interest, and the redaction was consistent with FOIA.

The AG was careful about scope. The AG explicitly limited the opinion to the personal-identifying information question, not to the broader question of how much information about the program had to be disclosed. ABC could likely still be required to disclose information about the program's existence, its operational outline, its results in the aggregate, and other non-identifying detail. The AG also flagged that the AG had not actually seen the records and could not independently confirm the personnel-records classification; the opinion proceeded on assumption.

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 generally requires disclosure of public records, with several specific exceptions. Two of those exceptions deal with employment-related records, and the test for releasing each differs significantly.

The "personnel records" exception in § 25-19-105(b)(12) covers all records other than employee evaluation and job performance records that pertain to individual employees. A personnel record is disclosable to the public unless disclosure "would constitute a clearly unwarranted invasion of personal privacy." The personnel-records test is a balancing test.

The "employee evaluation or job performance records" exception in § 25-19-105(c)(1) operates differently. Those records are exempt unless there has been a final administrative resolution of a suspension or termination proceeding and the records formed the basis for the resolution and a compelling public interest exists in disclosure. The job-performance test is more stringent.

The AG's role under § 25-19-105(c)(3)(B)(i) was procedural. The statute authorized the custodian, the requester, or the subject of the records to seek an AG opinion on whether the custodian's decision was consistent with FOIA. The AG's opinion was not binding; it was advisory guidance the parties could rely on in deciding whether to litigate.

The Young v. Rice balancing test had become the standard analytical framework for the personnel-records exception. It required first a threshold inquiry into the personal or intimate nature of the information (privacy interest above de minimis or not), and then if the threshold was crossed, a comparison against the public's interest measured by what disclosure would tell the public about the government's performance of its duties. The leading case interpreting the public-interest side was Stilley v. McBride (1998), which adopted the federal Department of Defense v. FLRA (1994) formulation that the relevant public interest is in knowing what the government is up to, not in the personal details of identifiable individuals.

The opinion did not attempt to resolve the threshold classification question (were these records really personnel records?), because that was a fact question the AG was not equipped to answer without seeing the records. The AG proceeded on the working assumption that the classification was correct, and answered the question the custodian asked under that assumption.

Common questions

Could the AG say the records definitely were personnel records?
No. The AG had not seen the actual records and lacked enough information to confirm the classification. The opinion proceeded on the working assumption that the classification was correct.

What if the records aren't personnel records?
Then the personnel-records exception does not apply, and a different analysis governs. The AG's scope of review under § 25-19-105(c)(3)(B)(i) is limited to personnel and employee-evaluation records, so the AG would have had to decline the question if the records were something else.

Could the public still find out anything about the ABC compliance check program?
The opinion did not address that question directly, but the analysis suggests yes. The privacy interest the AG identified was specific to the identities of the minor participants. Aggregate program information, statistical results, operational summaries, and similar non-identifying detail would not implicate the same privacy concern and might still have to be disclosed if requested.

What if the cooperating individuals had been adults instead of minors?
The Young v. Rice balancing test does not turn on the age of the individuals, but the practical analysis might shift. Minors using their identities in adversarial situations (working as undercover operatives in alcohol enforcement) face heightened risks of harassment or retaliation; adult operatives might too, but with different factual specifics. The AG's reasoning emphasized the embarrassment-harassment potential, which applies to adult undercover operatives as well.

Could the subject of the records have asked for the same opinion?
Yes. § 25-19-105(c)(3)(B)(i) authorizes the custodian, the requester, or the subject to seek an AG opinion. Here the custodian asked.

Was the AG's opinion binding on the ABC Division or on the requester?
No. AG opinions in this context are advisory. A requester unhappy with the agency's decision could still pursue litigation; the AG opinion would be persuasive but not controlling.

Source

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

Original opinion text

Opinion No. 2015-062
June 11, 2015

Mr. Bud Roberts, Director
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Alcoholic Beverage Control Division
1515 West 7th Street, Suite 503
Little Rock, Arkansas 72201

Dear Mr. Roberts:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Repl. 2014). 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 sent an FOIA request to the Arkansas Alcohol Beverage Control ("ABC") Division for "all documents that provide details and information regarding undercover operatives used by the [ABC] Division for the past three calendar years." According to your letter and the attached correspondence, the ABC Division has determined that information concerning undercover operatives ranging in age from 16 to 20 years is exempt from disclosure under Ark. Code Ann. § 25-19-105(b)(12) (Repl. 2014), the FOIA's personnel records exception. In its letter to the requester, the Division stated that "[c]ooperating minors are utilized by the [ABC] Enforcement Division in compliance check operations" and "[t]he disclosure of the identities of the cooperating minors is a clearly unwarranted invasion of personal privacy that is not outweighed by any public interest regarding their specific information."

You have asked for my opinion "whether the personal information regarding these cooperating individuals should be disclosed" to the requester, and if so, "what information must be disclosed."

RESPONSE

My statutory duty under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) is to state whether a custodian's decision regarding the disclosure of personnel or employee-evaluation records is consistent with the FOIA. In the present case, the custodian has determined that the identities of "cooperating minors" who are utilized by ABC in undercover operations are exempt from disclosure under the FOIA's personnel records exception. I take this to mean that the custodian has classified the records identifying the minors as personnel records. I have not seen the actual records in question and I lack sufficient information to opine as to their proper classification. For purposes of this opinion, however, I will proceed under the assumption that the records at issue in fact constitute personnel records. And I will limit my analysis to the question posed, that is, whether the cooperating minors' personal information contained in personnel records is exempt from disclosure.

With this background in mind, it is my opinion that the custodian's decision to decline to disclose information identifying the cooperating minors 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 qualify as a public record. Third, no exceptions require that the document be withheld.

The first two elements are clearly met in this case. As for the first element, the documents are held by the ABC Division, which is a public entity. As for the second element, the FOIA defines "public records" 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.

It seems clear based on your statements that the records at issue reflect the performance of the official functions of the ABC Division. Accordingly, they plainly meet the above definition.

The records must therefore be disclosed unless some specific exception provides otherwise.

II. Exceptions to disclosure

Under certain conditions, the FOIA exempts two groups of items normally pertaining to personnel. 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 records at issue are personnel records, I will narrow my analysis to that exception.

a. Personnel-records exception

The FOIA does not define "personnel records," but 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 a question of fact. 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 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, 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, the custodian must determine whether that interest is outweighed by the public's interest in disclosure. The public's interest is measured by the extent to which disclosure of the information sought would "shed light on an agency's performance of its statutory duties or otherwise let citizens know 'what their government is up to.'" Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998) (quoting Dept. of Defense v. FLRA, 510 U.S. 487, 497 (1994)). 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 question whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 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.

b. Applying the test for disclosure

In this instance, it seems clear that the cooperating minors have a greater-than-de minimus privacy interest in information that would reveal their identities as ABC Division undercover operatives. Revealing their identities carries a clear potential for the information to be used to embarrass, harass, or otherwise impinge upon their privacy. Consequently, we must move to the second step to assess the public's interest in the information. We measure this interest by, as noted above, assessing the extent to which disclosure of the information sought would "shed light on [the] agency's performance ... or otherwise let citizens know 'what their government is up to.'"

In this regard, there may well be a legitimate public interest in some information regarding undercover operatives utilized by the ABC Division. It is my opinion, however, that the public's interest in knowing the identities of minors who cooperate as undercover operatives is minimal, at best. Under the Young v. Rice balancing test described above, I conclude that any measurable public interest is insufficient to override the minors' clear privacy interest in personal identifying information contained in their personnel records.

In sum, it is my opinion that the custodian's decision to decline to disclose information contained in personnel records that would identify the cooperating minors is consistent with the FOIA.

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

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/EAW:cyh