Can a public health center release a former employee's basic employment status record under Arkansas FOIA?

Plain-English summary

Alexander Justiss, attorney for the Boston Mountain Rural Health Center, Inc., asked the AG to review a planned FOIA release. Someone had asked for "the employment status of" a former employee (whose employment had ended by resignation effective September 21, 2015). The custodian found one responsive document, a print-out from the employer's database showing standard employment information (hire date, separation date, conditions of separation), classified it as a personnel record, and determined that disclosure would not constitute a clearly unwarranted invasion of the former employee's privacy.

The AG agreed. The document qualified as a public record under § 25-19-103(5)(A) (a writing, kept, reflecting performance of official functions in personnel practices) and as a personnel record (it pertained to an individual employee but was not an evaluation record). Applying the Young v. Rice balancing test, the AG concluded the privacy interest in the routine information was "exceedingly minor or non-existent." That meant the first step of the balancing test (more than de minimis privacy interest) was not met, and the thumb on the scale favoring disclosure carried the day. The public's interest easily required disclosure.

The AG flagged one specific item to check before release: the bottom left-hand side of the record contained a number that might be a personnel number or some other security-related number. If so, it would be exempt under § 25-19-105(b)(11) and would have to be redacted.

The AG did not address whether Boston Mountain Rural Health Center, Inc. is a FOIA-covered entity. That threshold question was conceded by the custodian.

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 mirrors companion 2015 FOIA opinions. A record must be released if it (1) is held by a FOIA-covered entity, (2) qualifies as a public record (§ 25-19-103(5)(A)), and (3) is not protected by an exemption. Personnel records are protected only "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy" (§ 25-19-105(b)(12)).

Young v. Rice supplies the balancing test: first, more-than-de-minimis privacy interest; second, weighing against the public's interest. Stilley v. McBride confirms the exception is narrowly construed and the party resisting disclosure bears the burden. Here, the custodian and the AG independently concluded that the routine, surface-level employment-status information did not give rise to a privacy interest above the de minimis threshold.

Section 25-19-105(b)(11) exempts information that compromises security, including security-related employee numbers. The numeric field at the bottom left of the print-out fell within that potential exemption, requiring case-specific evaluation by the custodian.

The AG declined to address whether Boston Mountain Rural Health Center, Inc. is a FOIA-covered entity. That is the kind of threshold legal question that the AG's narrow review channel under § 25-19-105(c)(3)(B)(i) does not authorize the office to settle in this format.

Common questions

Are standard employment-status records (hire/separation dates) personnel records?

Yes. They pertain to an individual employee and are not employee-evaluation records. They are personnel records.

Do they have to be released?

Yes, generally. The Young v. Rice balancing test requires a more-than-de-minimis privacy interest before the personnel-records exemption protects a record. Routine, surface-level employment status information does not give rise to that level of privacy interest.

What about that mystery number at the bottom?

The AG flagged it because it might be a security-related employee number protected under § 25-19-105(b)(11). The custodian should redact it if that exemption applies.

Why didn't the AG say whether Boston Mountain is FOIA-covered?

Because the AG's review channel under § 25-19-105(c)(3)(B)(i) only addresses whether the custodian's release decision is consistent with the FOIA. Whether the entity is covered by the FOIA at all is a different legal question that the AG declined to settle in this format.

The former employee resigned. Does that change anything?

No. The personnel-records analysis applies the same way whether the employee is current or former. The privacy-interest calculus is what matters.

Citations

• Ark. Code Ann. § 25-19-103(5)(A) (Repl. 2014) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(11) (security-related information exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• 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)
• Op. Att'y Gen. 2015-034 (definition of personnel record)
• Op. Att'y Gen. 2015-057 (employee-evaluation record framework)

Source

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

Original opinion text

Opinion No. 2015-119
October 6, 2015
Alexander Justiss
Kutak Rock
124 West Capitol Avenue
Suite 2000
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Little Rock, Arkansas 72201-3706
Dear Mr. Justiss:
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 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 "the employment status of" a former employee of your client, the Boston Mountain Rural Health Center, Inc. (You concede, and I do not address (in the context of an opinion issued under subsection § 25-19-105(c)(3)(B)(i)), the question whether your client is an entity subject to the FOIA. You also state that the subject of the request was "an employee of Boston Mountain" until "his resignation effective September 21, 2015.") You note that the FOIA request seeks "information" instead of "records containing such information." Yet, you say, your client has "nonetheless determined that a record in its possession is responsive to this request." You say that custodian has classified the one-page document, which you have attached to your correspondence, as a personnel record of the former employee. Further, you say that the custodian has determined that the document's disclosure would not amount to a clearly unwarranted invasion of the former employee's privacy. Therefore, the custodian intends to disclose the document and has asked for my opinion on whether that decision 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 document, it is my opinion (1) that the document is a personnel record; and (2) that its disclosure would not constitute a clearly unwarranted invasion of the former employee's privacy. Therefore, based on the information before me, it is my opinion that the custodian's decision to disclose the attached document is consistent with the FOIA.

DISCUSSION

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.

As noted above, the first element has been conceded, and I do not address it here. The remaining questions are whether the document qualifies as a public record and, if so, whether it qualifies as a personnel record. In my opinion, the answer to both questions is "yes," for the same reasons.

A document qualifies as a "public record" if it is a (1) writing, recorded sound, film, tape, electronic or computer-based information, or data compilation in any medium; (2) that is kept; and (3) that constitutes a record of "the performance or lack of performance of official functions which are or should be carried out by ... any other agency wholly or partially supported by public funds or expending public funds." Element (3) was conceded, and Element (1) is clearly met because the document is a writing. Finally, the document, which appears to be a print-out of a database that maintains standard employment information on current and former employees (e.g. date of hire or separation, and the conditions of the separation), reflects the performance of the employer's official functions in its personnel practices with respect to a specific employee. Accordingly, Element (2) is met and the document qualifies as a public record.

For the same reasons, the record qualifies as a personnel record of the former employee. While the FOIA does not define the term, this office has long opined that a "personnel record" is a public record that pertains to an individual employee that is not an employee-evaluation record. The attached record, which reflects standard employee intake and exit information about a specific employee, clearly pertains to that (former) employee and does not qualify as an employee evaluation.

Therefore, the record qualifies as the former employee's personnel record and must be disclosed unless doing so amounts to, what the FOIA describes as, "a clearly unwarranted invasion of personal privacy." According to the Arkansas Supreme Court, in Young v. Rice, custodians must apply 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, 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.

Here, the custodian has correctly determined that the personnel record at issue must be disclosed. The privacy interest in the information contained in the record is, in my opinion, exceedingly minor or non-existent. Therefore, the first prong of the Young v. Rice test requires the record to be disclosed. The public's interest easily requires disclosure of the record.

(The bottom left-hand side of the record contains a number that may be a personnel number or some other number intended for security purposes. If that is the case, then the custodian should know that such a number is exempt from disclosure under subsection 25-19-105(b)(11).)

Sincerely,
LESLIE RUTLEDGE
Attorney General