Can the Arkansas DHS release personnel records about a current employee under FOIA when the documents contain information that formed the basis for an adverse employment action?

Plain-English summary

An attorney representing the subjects of certain personnel files at the Arkansas Department of Human Services asked the AG to review a planned DHS release of records that identified his clients and contained information described as having "formed a basis, in whole or in part, for adverse employment action." The clients objected. DHS proposed to release the records after redacting things like Social Security numbers, home addresses, and medical records.

The AG explained that the office's authority to review under § 25-19-105 is narrow. The AG can only opine on whether the custodian's release decision is consistent with the FOIA. Most of the attorney's specific questions about agency procedure and authority fell outside that narrow channel, so the AG declined to answer them. But the AG did address two questions that could be framed as classification and disclosure questions.

The general framework: every responsive document must be released unless an exemption applies. Two relevant exemptions are the "personnel records" exemption in § 25-19-105(b)(12) and the "employee evaluation or job performance records" exemption in § 25-19-105(c)(1). These two categories are mutually exclusive, and the tests for whether the records can be released differ significantly.

For personnel records, the test is the Young v. Rice balancing test: weigh the employee's privacy interest against the public's interest in disclosure, with a thumb on the scale favoring disclosure. Many specific items (Social Security numbers, dates of birth, medical information, driver's license numbers, banking information, marital status, undercover officer identities) must be redacted regardless of the balance.

For employee-evaluation records, defined by Thomas v. Hall as 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," release requires four elements: (1) the employee was suspended or terminated, (2) there has been a final administrative resolution of that proceeding, (3) the records formed a basis for that disciplinary decision, and (4) there is a compelling public interest in disclosure. If administrative review is not yet final, an employee-evaluation record cannot be released. By contrast, a personnel record's status is not affected by whether administrative proceedings are ongoing or finished.

The AG could not opine on the specific documents at issue without seeing them and understanding how they were created.

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

Section 25-19-105(c)(3)(B)(i) creates a narrow AG review channel for personnel and employee-evaluation records. The custodian, the requester, or the subject may ask the AG whether the release decision is consistent with the FOIA. The AG's authority is limited to that question; the office cannot relitigate the broader FOIA framework or answer collateral questions in this channel.

Two FOIA exemptions can apply to records in a personnel file:

• Personnel records (§ 25-19-105(b)(12)): "[P]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The AG's office reads this as covering all records pertaining to individual employees other than evaluation/job-performance records.

• Employee evaluation or job performance records (§ 25-19-105(c)(1)): These can be released only after "final administrative resolution of any suspension or termination proceeding at which the records form a basis for the decision to suspend or terminate the employee and if there is a compelling public interest in their disclosure."

Young v. Rice supplies the personnel-records balancing test: a two-step inquiry. First, is the privacy interest more than de minimis? If not, the thumb on the scale tips disclosure. If yes, does the public interest outweigh it? Stilley v. McBride confirms that the exception is narrowly construed and the person resisting disclosure bears the burden.

Thomas v. Hall (2012) adopted the AG office's three-part definition of an employee-evaluation record: created by or at the behest of the employer, to evaluate the employee, detailing the employee's performance or lack of performance. The decision specifically covers investigation records detailing incidents that gave rise to misconduct allegations.

A document that meets the employee-evaluation definition cannot be released unless all four elements are met: discipline (suspension or termination), finality, basis, and compelling public interest. The "compelling public interest" element is itself shaped by the Watkins and Peltz treatise: nature of the infraction (with concern for breaches of public trust or gross incompetence), existence of a public controversy, and the employee's position within the agency.

For mixed records (those that qualify as both personnel records of one person and evaluation records of another), the AG noted in this opinion and others that each lens of the record gets its own analysis.

Even records that meet the test for release may contain specific items that must be redacted: dates of birth of public employees, 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

Why didn't the AG just answer the specific questions the attorney posed?

Because § 25-19-105(c)(3) gives the AG a narrow lane: opining on whether the custodian's release decision is consistent with the FOIA. The office is not authorized to answer broader questions about agency authority or procedure in this channel. Other AG opinion channels exist for other questions.

Can DHS release a record describing employee misconduct before discipline is final?

It depends on the record's classification. If it is an employee-evaluation record (created by or at the behest of the employer to evaluate the employee), it cannot be released until the suspension or termination proceeding is finally resolved administratively, and even then only if a compelling public interest exists. If it is a personnel record (a record pertaining to the employee that is not an evaluation), the test is the Young v. Rice balancing test, and ongoing administrative review is not by itself a reason to withhold.

What is "compelling public interest"?

A factual judgment, made first by the custodian. The treatise factors: (1) the nature of the infraction (breaches of public trust or gross incompetence count more); (2) the existence of a related public controversy; and (3) the employee's position within the agency. General interest in public-employee performance does not suffice; a specific link between a public controversy and a senior employee's serious breach can.

What if the same record is both an evaluation of one person and a personnel record of another?

It is a "mixed record." Each person's interest is analyzed separately under the test that applies to that lens of the record.

What about job applications and resumes?

The AG has consistently classified those as personnel records that ordinarily must be released, because their disclosure usually does not rise to a clearly unwarranted invasion of personal privacy (covered in detail in Opinion 2015-130 from the same period).

Citations

• Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement officer information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(A) (AG review scope)
• 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) (balancing test for personnel records)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on party resisting disclosure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of employee-evaluation record)
• 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. 2015-125
October 22, 2015
Jason A. Stuart, Esq.
Stuart Law Firm
Plaza West Building
415 N. McKinley Street
Little Rock, AR 72205
Dear Mr. Stuart:
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 subjects of the records, is pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). 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 the Department of Human Services (DHS) intends to release, in response to a FOIA request, certain documents that identify your clients, after redacting exempt information such as Social Security number, home address, and medical records. Your clients object to the release and you have submitted a number of specific questions to my office concerning the prospective release and DHS's role or authority in this regard.

Most of the questions you have posed fall outside the scope of my authority to review. Although official Attorney General opinions are issued on questions of state law to various state officials pursuant to other statutory directives, my authority to opine under Ark. Code Ann. § 25-19-105 is limited to reviewing the custodian's decision as to "whether [particular personnel or employee-evaluation] records are exempt from disclosure." I am not otherwise authorized to address specific questions posed by the custodian, the subject, or the requestor.

While I must therefore respectfully decline to address most of the matters you have raised, I will address the following questions concerning a document or information that "formed a basis, in whole or in part, for adverse employment action":

1) Is DHS permitted or required to release documents which identify, reference or have as the subject a current or former DHS employee for whom the document is included in their personnel file and the document or information formed a basis, in whole or in part, for adverse employment action?

2) Is DHS permitted or required to release documents which identify, reference or have as the subject a current or former DHS employee for whom the document is included in their personnel file and the document or information formed a basis, in whole or in part, for adverse employment action, even if the current or former DHS employee has not yet initiated administrative action in connection with such adverse employment action?

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen the specific documents at issue, I cannot opine about the disclosure of specific documents. Instead, I can opine more generally about the classification and disclosure of documents containing information that formed a basis, in whole or in part, for adverse employment action.

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 require the document to be withheld.

The first two elements are presumably met in this case. DHS is a public entity, and documents such as those described in the questions above ("formed a basis, in whole or in part, for adverse employment action") presumably reflect the performance or lack of performance of official functions of the agency generally or the current or former employee. Thus, the primary issue is with the third element; namely, whether any exceptions require some or all the documents to be withheld from disclosure. Therefore I will focus my analysis on this issue.

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 test for whether these two types of documents may be released differs 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. 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, 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.

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. But in 2012, the Arkansas Supreme Court 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 a document meets the above definition, the document 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).

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But two leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines: it seems that the following factors should be considered in determining whether a compelling public interest is present: (1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, for that concern is, at least theoretically, always present. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship.

III. Application

I have not seen the actual document(s) in question, and I lack sufficient information to specifically opine as to their proper classification. A document that, as stated in the above questions, contains information that "formed a basis, in whole or in part, for adverse employment action" may or may not be an employee-evaluation record of the subject of the employment action. As explained above, to be classified as an employee-evaluation record, the document must have been created by or at the behest of the employer to evaluate the employee.

Whether, as stated in your questions, DHS is "permitted or required" to release the documents will depend upon the applicable test for release, as explained above. Exemptions are mandatory, so DHS is not permitted to release exempt documents or information. If the particular document(s) at issue are in fact employee-evaluation records, then they cannot be released unless, among several other elements, there has been a final administrative resolution of a suspension or termination proceeding. In response to Question 2, therefore, the fact that the current or former employee has not yet initiated administrative action would be relevant to a decision regarding the disclosure of an employee-evaluation record, as long as 1) the current or former employee was either suspended or terminated and 2) an administrative remedy remains available to the current or former employee. An employee-evaluation record cannot be released if there has been no final administrative resolution of an employee's suspension or termination.

The other possibility is that the document(s) at issue do not constitute employee-evaluation records, but instead are personnel records under the above definition (all records other than employee-evaluation records that pertain to individual employees). In that case, I must note that the mere fact that the employee has not initiated an administrative action is an insufficient basis to conclude that a personnel record is exempt from disclosure. Any personnel record must instead be evaluated under the test that is applicable to that type of record, as discussed above.

I cannot opine further in response to the questions you have posed, in the absence of the documents themselves and further information surrounding their creation.

Sincerely,
LESLIE RUTLEDGE
Attorney General
LR:cyh