Can a Maumelle city alderman get FOIA copies of police and fire department employee timesheets, including hours worked and leave taken, for a one-week period?

Plain-English summary

Caleb Norris, the Maumelle City Attorney, asked the AG to review (as the custodian's lawyer) the City's decision to release a four-day period of employee timesheets from the Maumelle Fire Department and Maumelle Police Department in response to a FOIA request from a Maumelle City Alderman. The custodian had concluded that the timesheets were personnel records and that release would not constitute a clearly unwarranted invasion of personal privacy.

AG Leslie Rutledge concluded the custodian had it right, with one caveat about the "Employee No." field on each timesheet.

The structural analysis tracked the AG's standard FOIA framework:

1. Public record under § 25-19-103(5)(A). The City is a public entity. The timesheets are records of employees' attendance and leave taken. They qualify as public records.
2. Personnel records exception. Attendance and leave records have been consistently classified as personnel records (rather than employee-evaluation records) in prior AG opinions including Op. Att'y Gen. 2013-022.
3. Young v. Rice balancing favors disclosure. As the AG put it (quoting Op. Att'y Gen. 2012-136): "While there is arguably a greater than de minimus privacy interest in the fact that an employee used sick or annual leave, that interest is, in my opinion, outweighed by the balancing test's second step. Specifically, disclosing whether an employee used annual or sick leave sheds light on an agency's performance of its duties because, among other things, it shows whether the agency is properly adhering to the policies limiting the amount of leave (whether annual or sick) that employees may take."
4. Employee No. caveat. Each timesheet has an "Employee No." entry. If those numbers function as PINs that grant access to computerized data, they fall within § 25-19-105(b)(11) (records containing "personal identification numbers" used for computer security functions are specifically exempt). The AG had no information on the nature of those numbers but flagged that the custodian should determine whether they fit § 25-19-105(b)(11) before release.

The AG also noted that a record stating the reason for leave might require further analysis under earlier guidance on leave requests. She did not say that these timesheets contained such reasons.

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.

Background and statutory framework

Why timesheets are personnel records, not evaluation records

The AG said the office had consistently classified attendance and leave records as personnel records. She therefore applied the personnel-records privacy test rather than the separate employee-evaluation test.

The disclosure analysis under Young v. Rice

The first step asks whether the information is of a personal or intimate nature giving rise to a privacy interest greater than de minimis. The AG quoted an earlier opinion saying the fact that an employee used sick or annual leave arguably creates a privacy interest greater than de minimis. The second step weighs the privacy interest against the public's interest in disclosure. The AG concluded the public's interest predominates: timesheets show whether agencies are administering their leave policies properly, as the opinion explained.

Section 25-19-105(b)(11): the PIN exception

Section 25-19-105(b)(11) carves out "personal identification numbers" used for computer security functions. The AG had no information about the "Employee No." entries on these timesheets. She said the numbers had to be redacted before release if they provided access to computerized data.

The AG cited Op. Att'y Gen. 2007-070, where an employee personnel number provided access to a Social Security number, and also cited Op. Att'y Gen. 2014-094.

Common questions

Q: Can a city council member get FOIA copies of police and fire department timesheets? A: Yes. Timesheets are personnel records under § 25-19-105(b)(12) and are releasable under the Young v. Rice balancing test. The public's interest in seeing how the agency administers its leave policies outweighs the employee's privacy interest in the fact of leave use.

Q: What happens to the "Employee No." field on the timesheet? A: The AG did not know what the number did. She said it had to be redacted under § 25-19-105(b)(11) if it provided access to computerized data.

Q: What if a timesheet also states the reason for leave? A: The AG said further analysis might be required if the record stated the reason for leave, citing earlier guidance on leave requests.

Citations and references

Statutes:

• A.C.A. § 25-19-103(5)(A) (Supp. 2015) (definition of public record)
• A.C.A. § 25-19-105(c)(3)(B)(i) (Supp. 2015) (AG opinion procedure)
• A.C.A. § 25-19-105(b)(11) (Supp. 2015) (PIN exemption for computer security)
• A.C.A. § 25-19-105(b)(12) (personnel records exception)
• A.C.A. § 25-19-105(c)(1) (employee evaluation records exception)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998)

Source

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

Official summary

Is the decision of the custodian of records to release employee timesheets from March 10 through March 13, 2016, in response to a Freedom of Information Act request, consistent with provisions of the FOIA? RESPONSE: It is my opinion that, with the possible exception of one item of information, the custodian has properly determined that these attendance/leave records are subject to release under the test applicable to personnel records. Each timesheet contains an entry for "Employee No." I have no information regarding this entry. But if these numbers provide access to computerized data, this information must be redacted, pursuant to Ark. Code Ann. sec. 25-19-105(b)(11), prior to the records' release.

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2016-031

March 28, 2016

The Honorable Caleb Norris
City Attorney
550 Edgewood, Suite 590
Maumelle, AR 72113

Dear Mr. Norris:

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 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 a Maumelle City Alderman has requested release of employee timesheets from March 10, 2016 through March 13, 2016 for all Maumelle Fire Department and Maumelle Police Department employees. The custodian of records has determined that the requested timesheets constitute personnel records and their release would not constitute a clearly unwarranted invasion of personal privacy. You ask whether the custodian's 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 timesheets in question, it is my opinion that with the possible exception of one item of information, the custodian has properly determined that these attendance/leave records are subject to release under the test applicable to personnel records.

323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG .GOV

The Honorable Caleb Norris
Maumelle City Attorney
Opinion No. 2016-031
Page 2

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 Maumelle, 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. 1

The attendance/leave records of public employees clearly qualify as "public records" under this definition.2 The timesheets at issue record the employees' hours of attendance and leave taken. They thus constitute public records that 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. 3 For purposes of the FOIA, these items can usually

1
A.C.A. § 25-19-103(5)(A) (Supp. 2015).
2
See, e.g., Op. Att'y Gen. 2007-258.
3
This office and the leading commentators on the FOIA have observed that personnel files usually include: employment applications; school transcripts; payroll-related documents such as information about reclassifications, promotions, or demotions; transfer records; health and life insurance forms; performance evaluations; recommendation letters; disciplinary-action records;

The Honorable Caleb Norris
Maumelle City Attorney
Opinion No. 2016-031
Page 3

be divided into two mutually exclusive groups: "personnel records" 4 or "employee evaluation or job performance records." 5 This office has consistently opined that attendance/leave records are personnel records. 6 I will therefore limit my discussion to that particular category of record.

Personnel records are open to public inspection and copying except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 7 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 8 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. 9

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

requests for leave-without-pay; certificates of advanced trammg or education; and legal documents such as subpoenas. E.g., Op. Att'y Gen. 97-368; John J. Watkins & Richard J. Peltz, THE ARKANSAS FREEDOM OF INFORMATION ACT 187-89 (Arkansas Law Press, 5th ed., 2009). 4 AC.A. § 25-19-1 OS(b )(12): "It is the specific intent of this section that the following shall not be deemed to be made open to the public under the provisions of this chapter .... [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 5 A.C.A § 25-19-IOS(c)(l): "Notwithstanding subdivision (b)(l2) of this section, all employee evaluation or job performance records, including preliminary notes and other materials, shall be open to public inspection only upon 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." 6 See Op. Att'y Gen. 2013-022 (and opinions cited therein).
7
AC.A.§ 25-19-105(b)(l2) (Supp. 2013).
8
Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins & Peltz, supra note 4, at 191.

The Honorable Caleb Norris
Maumelle City Attorney
Opinion No. 2016-031
Page 4

privacy interest. 10 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. 11 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. 12 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. 13

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 14 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.

II. Application.

This office has consistently opined that attendance/leave records are generally disclosable under the foregoing two-part balancing test, based on the following analysis:

While there is arguably a greater than de minimus privacy interest in the fact that an employee used sick or annual leave, that interest is, in my opinion, outweighed by the balancing test's second step.
Specifically, disclosing whether an employee used annual or sick leave sheds light on an agency's performance of its duties because, among other things, it shows whether the agency is properly

10
Id. at 598, 826 S.W.2d at 255.
11
/d., 826 S.W.2d at255 .
12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
13
E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
14
Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001.

The Honorable Caleb Norris
Maumelle City Attorney
Opinion No. 2016-031
Page 5

adhering to the policies limiting the amount of leave (whether annual or sick) that employees may take. 15

It is therefore my opinion that the timesheets in question are subject to disclosure, with the possible exception of one item of information. 16 Each timesheet contains an entry for "Employee No." I have no information regarding this entry. But I will note that this office has previously opined that the custodian correctly decided to redact an "employee personnel number" from particular records where the number provided access to an employee's social security number. 17 It should also be noted that pursuant to Ark. Code Ann. § 25-19-105(b)(ll) (Supp. 2015), records containing "personal identification numbers" used for computer security functions are specifically exempt from disclosure under the FOIA. I have no information upon which to gauge whether this exemption applies to the "Employee No." listed on these timesheets. But if these numbers provide access to computerized data, I believe it is clear that this information must be redacted, pursuant to subsection 25-19-105(b)(l l), prior to the records' release. 18

Sincerely,

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LESLIE RUTLEDGE
Attorney General

15
Op. Att'y Gen. 2012-136.
16
I will note that further analysis may be required in cases where the reason for using the leave is also stated on attendance/leave records. See id. (explaining if the reason for using the sick or annual leave is stated on the leave request, the custodian would need to consult Op. Att'y Gen. 2007-258 (and opinions cited therein), which explains the standards custodian should apply to decide when and what to redact from leave requests. 17 Op. Att'y Gen. 2007-070 (regarding a request for a copy of the Arkansas Administrative Statewide Information System ("AASIS") employee database.) 18 Accord Op. Att'y Gen. 2014-094.