Can a former Arkansas public employee block release of his personnel file under FOIA just by calling it a privacy invasion?

Plain-English summary

Attorney Luther Sutter, representing the subject of the records, asked the AG to review a custodian's decision to release "a complete copy of" his client's personnel records file. The client was a former public employee. The custodian planned to disclose. Sutter objected on his client's behalf that "the release is an unwarranted invasion of privacy" and asked for review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG reviewed the records and reached a three-part conclusion. First, nearly all of the records were personnel records. Second, one record was an employee-evaluation record. Third, the custodian's decision to release the personnel records was consistent with the FOIA, but the employee-evaluation record's release turned on a fact the AG had no information about: whether it formed the basis for the former employee's termination.

For the personnel records, the AG applied the Young v. Rice balancing test. With a thumb on the scale favoring disclosure, the privacy interest had to be more than de minimis before it could outweigh the public interest. The custodian's review showed the personnel records did not contain information of a personal or intimate nature that gave rise to a significant privacy interest, so they had to be released (subject to specific item-by-item redactions like Social Security numbers, dates of birth, etc.).

For the single employee-evaluation record, the AG could not opine without one factual finding from the custodian: whether the record formed the basis for the termination. The four-part test for releasing employee-evaluation records had three elements already met (discipline = termination, finality = administrative resolution, and compelling public interest). The remaining element (basis) was the open question. If the custodian determined the record formed the basis for termination, it had to be disclosed. If not, it had to be withheld.

The blanket objection on its own was not enough to block release of the personnel records. The custodian had already done the required review, and Sutter offered no record-specific arguments that would justify withholding.

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 is the same as in companion 2015 FOIA opinions: personnel records and employee-evaluation records are mutually exclusive. Section 25-19-105(b)(12) protects personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Section 25-19-105(c)(1) protects employee-evaluation records, releasable only on the four-part test: discipline, finality, basis, and compelling public interest.

Young v. Rice supplies the personnel-records balancing test: first, more than a de minimis privacy interest; second, weight against the public's interest in disclosure. Stilley v. McBride confirms the exception is narrowly construed and the party resisting bears the burden. Thomas v. Hall defines an employee-evaluation record as one (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance.

The AG also reaffirmed the redaction list for personnel records that otherwise must be released: dates of birth, Social Security numbers, medical information, undercover officer identities, driver's license numbers, insurance coverage, tax information, payroll deductions, banking information, personal contact information, and marital status/dependent information.

Common questions

Was the blanket privacy objection enough to block the release?

No. The AG explained that under the personnel-records test, a blanket objection cannot override a custodian's careful review. The party resisting disclosure has to identify a more-than-de-minimis privacy interest tied to specific information in the record.

What's the fact the custodian had to determine?

Whether the single employee-evaluation record formed the basis for the former employee's termination. That is the third element of the four-part test for releasing employee-evaluation records. The AG had no information on that fact.

If the record formed the basis for termination, must it be released?

Yes, because the other three elements were already met. If the record did not form the basis, it had to be withheld even though discipline, finality, and compelling public interest were all present.

What happens with the rest of the personnel records?

They had to be released, subject to standard item-by-item redactions (Social Security numbers, dates of birth, medical information, etc.).

Citations

• Ark. Code Ann. § 25-19-105(b)(10), (b)(12), (b)(13) (FOIA exemptions)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records, four-part test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review channel)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (privacy balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (employee-evaluation record definition)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed. 2009)

Source

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

Original opinion text

Opinion No. 2015-111
September 10, 2015
Luther Sutter
Sutter & Gillham, PLLC
Post Office Box 2012
Benton, AR 72015
Dear Mr. Sutter:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the attorney for the subject of the records, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i). 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 correspondence indicates that someone has requested "a complete copy of" your client's "personnel records file." Your client is a former public employee. The custodian has gathered the records it considers to be responsive to the request and intends to disclose the records. You, on your client's behalf, object to the disclosure of the records because, you claim "the release is an unwarranted invasion of privacy." You ask this office to review the custodian's decision to determine whether it is 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 at issue, it is my opinion (1) that nearly all of the records should be classified as personnel records; (2) that one record should be classified as an employee-evaluation record; and (3) that the custodian's decision to release the personnel records is consistent with the FOIA, but I cannot say whether the employee-evaluation record should be disclosed because I have no information on whether it formed the basis for the former employee's termination. If it did, then the record should be disclosed (because the other elements for its release are met). If it did not, then the record cannot be disclosed. The custodian must make the determination whether the record formed the basis for your client's termination.

DISCUSSION

I. General standards governing disclosure

Responsive documents 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 documents must constitute a public record. Third, no exceptions allow the documents to be withheld. Because your objection rests on the third element, whether an exception shields the documents from disclosure, I will limit my analysis to that point.

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 tests for whether these two types of documents may be released differ significantly.

a. Personnel-records exception

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. 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 a question of fact.

Even if a document, when considered as a whole, meets the test for disclosure, it may contain discrete pieces of information that have to be redacted. Some items that must be redacted include: dates of birth of public employees; social security numbers; medical information; any information identifying certain law enforcement officers currently working undercover; driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; banking information; personal contact information; and marital status of employees and information about dependents.

b. Employee-evaluation exception

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. The Arkansas Supreme Court has recently 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If the records meet the above definition, they cannot be released unless all the following elements have been met:

1. The employee was suspended or terminated (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);
3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and
4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest).

III. Application

I have reviewed the records at issue and conclude that nearly all of them are personnel records of the former employee and that the privacy interest in those records does not rise to the level of a clearly unwarranted invasion of personal privacy. Therefore, those records must be disclosed, subject to redaction of the discrete items identified above.

One record is an employee-evaluation record under the Thomas v. Hall definition. Three of the four elements for release are met: the employee was terminated, the administrative process has concluded, and there is a compelling public interest. The remaining question is whether the record formed the basis for the termination. I have no information that allows me to answer that question. If the record formed the basis for the termination, it must be disclosed because the other elements for release are met. If it did not, it cannot be released. That determination is for the custodian.

Sincerely,
LESLIE RUTLEDGE
Attorney General