Under the Arkansas FOIA, what rules govern releasing a public employee's personnel file, discipline records, and work emails?

Plain-English summary

Someone filed an Arkansas FOIA request seeking the personnel records of Carla Daniels, a City of Little Rock employee. The request asked for her entire personnel file plus disciplinary actions, complaints she filed, termination records, work emails, and a rehire-eligibility determination. The city's records custodian said the materials qualified as personnel records and should be released. Daniels asked the Attorney General to review that decision.

Because she had not provided the actual records, the AG could not opine on whether any particular document had to be released. Instead, the opinion sets out the legal framework the custodian had to apply: the rules for "public records," the personnel-records exception with its Young v. Rice balancing test, and the much narrower employee-evaluation exception that keeps job-performance records confidential unless four specific conditions are met. The opinion also listed the categories of information (Social Security numbers, dates of birth, banking information, medical information, and others) that must be redacted even from otherwise disclosable personnel records. The follow-up Opinion No. 2016-020 issued a few days later applied this framework to the actual file.

Currency note

This opinion was issued in 2016. 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.

The Arkansas FOIA framework as the AG described it

Three threshold elements. A document must be released if (1) the FOIA request is directed to an entity covered by the act, (2) the document is a "public record" as defined in A.C.A. § 25-19-103(5)(A), and (3) no exception allows it to be withheld. The first two were met here because the City of Little Rock is a public entity and personnel-file records of public employees generally qualify as public records. Whether work emails qualified depended on content and context, citing Pulaski County v. Arkansas Democrat Gazette, Inc.

Personnel-records exception. The FOIA does not define "personnel records," but the AG's office had consistently used the working definition that it covers all records that pertain to individual employees other than employee evaluations. These records must be released "to the extent" their disclosure would not be "a clearly unwarranted invasion of personal privacy."

The Arkansas Supreme Court in Young v. Rice set the balancing test:

• Step 1: assess whether the information is of a personal or intimate nature giving rise to more than a de minimis privacy interest. If only de minimis, the thumb on the scale favoring disclosure controls.
• Step 2: if the privacy interest is greater than de minimis, weigh it against the public's interest in disclosure. The exceptions are narrowly construed, so the person resisting disclosure bears the burden.

Categories that must be redacted. Even from otherwise disclosable personnel records, the AG's office had long required redaction of:

• dates of birth (Op. 2007-064)
• Social Security numbers (Ops. 2006-035, 2003-153)
• medical information (Op. 2003-153)
• information identifying certain undercover law-enforcement officers (A.C.A. § 25-19-105(b)(10))
• driver's license numbers (Op. 2007-025)
• insurance coverage (Op. 2004-167)
• tax information or withholding (Ops. 2005-194, 2003-385)
• payroll deductions (Op. 98-126)
• banking information (Op. 2005-194)
• unlisted telephone numbers (Op. 2005-114)
• home addresses of most public employees (A.C.A. § 25-19-105(b)(13))
• personal e-mail addresses (Op. 2004-225)
• marital status and dependent information (Op. 2001-080)

Employee-evaluation exception. This is the more protective exception. Quoting Thomas v. Hall, the AG defined an employee-evaluation record as one (1) created by or at the behest of the employer, (2) to evaluate the employee, (3) that details the employee's performance or lack of performance on the job. These records may be released only if all four elements are met:

1. The employee was suspended or terminated;
2. There has been final administrative resolution of that proceeding;
3. The records formed a basis for the decision to suspend or terminate;
4. The public has a "compelling public interest" in disclosure.

On the fourth element, the AG cited Watkins & Peltz on what makes an interest "compelling": the nature of the infraction (with particular concern for violations of public trust or gross incompetence), the existence of a public controversy related to the agency, and the employee's position within the agency. A general interest in employee performance is not enough.

Common questions

Are work emails always public records?
The AG answered "depends." Emails on government systems may or may not be public records under A.C.A. § 25-19-103(5)(A), depending on their content and the surrounding facts. A purely personal email exchanged on a government account is not automatically a public record just because it sits on a government server.

What was the difference between Opinion 2016-018 and Opinion 2016-020?
This one (2016-018) set out the legal rules without examining the specific records. The follow-up (2016-020), issued a few days later, applied the same framework to the actual redacted file Daniels then provided. The follow-up concluded most redactions were correct but flagged race and gender as disclosable and identified additional cuts the custodian had to make to two evaluation records.

Does the subject of records have a right to block release?
Not directly. The Arkansas FOIA gives the subject the right to seek an AG opinion on whether the custodian's release decision is consistent with the act, but the AG's opinion is advisory. As the AG noted, the subject's own view that release would be an unwarranted invasion of privacy is irrelevant to the analysis, because the Young v. Rice test is objective.

Source

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

Original opinion text

Opinion No. 2016-018
March 2, 2016
Carla L. Daniels
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Linda Hinshaw, Human Resources Dept.
City of Little Rock
500 W. Markham, Suite 130W
Little Rock, AR 72201-4496
Dear Ms. Daniels:
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. 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 City of Little Rock has received an FOIA request for "copies of public records regarding [your] employment with the City of Little Rock." The request includes "all personnel files, disciplinary actions, complaints filed [by you], termination of employment, emails and electronic communications, and if [you are] rehire able."
The records custodian has determined that the requested information is part of your personnel file and is releasable. You have asked for my opinion regarding the custodian's decision.

RESPONSE

My statutory duty is to state whether the custodian's decision regarding the release of personnel or employee-evaluation records is consistent with the FOIA. Not having seen any of the records at issue, I cannot opine about the release of any particular records. I can, however, opine generally about the legal standards the custodian must apply to the specific types of documents at issue.

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 appear met in this case. As for the first element, the documents are held by the City of Little Rock, 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.

The custodian has presumably determined that all the requested records meet this definition. I am unable, for the reasons stated above, to fully assess that determination. I can comfortably opine that most records contained in personnel files are "public records," as are other job-related records of the sort requested in this case. But emails and electronic communications may or may not meet the above definition, depending upon their content and any other pertinent surrounding facts. If, in fact, those records are determined to be "public records" as defined above, then they, along with the other records, must be disclosed unless some specific exception provides otherwise.

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.

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.

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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always 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 (Op. 2007-064);
• social security numbers (Ops. 2006-035, 2003-153);
• medical information (Op. 2003-153);
• any information identifying certain law enforcement officers currently working undercover (A.C.A. § 25-19-105(b)(10));
• driver's license numbers (Op. 2007-025);
• insurance coverage (Op. 2004-167);
• tax information or withholding (Ops. 2005-194, 2003-385);
• payroll deductions (Op. 98-126);
• banking information (Op. 2005-194);
• unlisted telephone numbers (Op. 2005-114);
• home addresses of most public employees (A.C.A. § 25-19-105(b)(13));
• personal e-mail addresses (Op. 2004-225); and
• marital status of employees and information about dependents (Op. 2001-080).

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 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 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.

In conclusion, because I have not reviewed the actual records in question or been sufficiently apprised of the surrounding facts, I cannot render any definitive opinion regarding the custodian's decision. I am instead limited to explaining the law governing release of the general types of records that have been requested in this instance. The custodian must apply these definitions and tests to each specific record to determine whether the FOIA requires its public disclosure.

Sincerely,
LESLIE RUTLEDGE
Attorney General