When a city releases a former employee's personnel file under FOIA, what gets redacted and what about disciplinary letters?

Plain-English summary

Jimmy G. Foreman, a former City of Little Rock employee whose records had been requested under FOIA, asked the AG under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) whether the records custodian's redacted-release decision was consistent with the FOIA. The custodian had classified everything as personnel records and proposed to release each document with certain redactions.

AG Leslie Rutledge concluded the release as proposed was consistent with the FOIA, but with one classification correction. A March 25, 2015 letter that detailed the conduct leading to the employee's discipline was actually an "employee-evaluation or job performance record" under the Thomas v. Hall test, not a plain personnel record. AG opinions have consistently treated such disciplinary-explanation letters that way.

Employee-evaluation records have a stricter disclosure test (Ark. Code Ann. § 25-19-105(c)(1)): the employee must have been suspended or terminated, there must be a final administrative resolution, the records must have formed a basis for that decision, and there must be a "compelling public interest" in disclosure. The first three elements were met. For the fourth, the AG noted the public's strong interest in law-enforcement officers' on-duty conduct, especially conduct involving interactions with the public. Because the March 2015 letter reflected discipline for that kind of conduct, the compelling-public-interest standard was satisfied.

The remaining documents were properly personnel records, and the Young v. Rice balancing test (with its thumb on the disclosure side) tipped toward release when the records were considered with the custodian's redactions. The opinion lists the typical mandatory redactions in personnel records (personal contact info, marital status and dependents, dates of birth, social security numbers, medical information, undercover-officer identifiers under § 25-19-105(b)(10), driver's-license numbers, insurance, tax/withholding info, payroll deductions, banking info).

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.

Common questions

What is the difference between a "personnel record" and an "employee-evaluation record" under Arkansas FOIA?
Personnel records are everything in an employee's file other than evaluation/performance records. Employee-evaluation records were defined by the Arkansas Supreme Court in Thomas v. Hall, 2012 Ark. 66, as records (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance on the job. Personnel records are released under the Young v. Rice "clearly unwarranted invasion of personal privacy" balancing test. Evaluation records have a stricter four-element test under § 25-19-105(c)(1).

Why was the March 2015 disciplinary letter classified as evaluation rather than personnel?
Because it detailed the incidents or conduct that led to the disciplinary action. AG opinions over many years (2014-129, 2012-041, 2011-068, 2009-210, 2006-026, 95-171) have consistently classified such letters as evaluation records.

What is the "compelling public interest" element?
The toughest element of the evaluation-record test. AG opinions and the Watkins & Peltz treatise identify three factors: nature of the infraction (especially violations of public trust or gross incompetence), existence of public controversy, and the employee's position. For police officers, the public has an especially strong interest in on-duty conduct, particularly conduct involving the public.

What gets redacted from a personnel record before release?
Personal phone numbers and email addresses, home addresses (§ 25-19-105(b)(13)), marital status and dependent information, dates of birth, social security numbers, medical information, undercover-officer-identifying information (§ 25-19-105(b)(10)), driver's-license numbers, insurance coverage, tax/withholding info, payroll deductions, and banking information. Each redaction has been the subject of prior AG opinions.

Does the subject of the records have a veto?
No. The test is objective. The subject's view that release is invasive is irrelevant. The custodian decides based on the law.

Background and statutory framework

The general FOIA framework. Ark. Code Ann. § 25-19-103(5)(A) (Supp. 2015) defines "public record" broadly. § 25-19-105(b)(12) sets up the personnel-record exemption; § 25-19-105(c)(1) sets up the evaluation-record exemption. They are mutually exclusive categories. The custodian classifies, then applies the applicable test.

Personnel-record test (Young v. Rice, 308 Ark. 593 (1992)). Two steps. First, is the privacy interest greater than de minimus? Second, does the public interest outweigh the privacy interest? The thumb is on the disclosure side. The person resisting bears the burden (Stilley v. McBride, 332 Ark. 306 (1998)). The test is objective.

Evaluation-record test (§ 25-19-105(c)(1) and Thomas v. Hall, 2012 Ark. 66). Disclosure requires (1) suspension or termination, (2) final administrative resolution, (3) the records formed a basis for the discipline, (4) compelling public interest. For police-officer records, the Watkins & Peltz treatise and AG opinions (2014-122, 2007-206) recognize a strong public interest in on-duty conduct, especially conduct involving the public.

Categorical redactions. The list of items that must come out of even otherwise-disclosable personnel records is built up across AG opinions over years: § 25-19-105(b)(13) for personal contact info, § 25-19-105(b)(10) for undercover-officer info, Op. 2001-080 (marital status/dependents), Op. 2007-064 (DOB), Ops. 2006-035 and 2003-153 (SSNs), Op. 2003-153 (medical), Op. 2007-025 (driver's license), Op. 2004-167 (insurance), Ops. 2005-194 and 2003-385 (tax info), Op. 98-126 (payroll deductions), Op. 2005-194 (banking).

Citations

Statutes: Ark. Code Ann. §§ 25-19-103(5)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(c)(3)(B)(i) (Supp. 2015 and Supp. 2013).

Cases: Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387.

Prior AG opinions cited: 1999-147; 97-368; 2001-112; 2001-022; 94-198; 2006-176; 2004-260; 2003-336; 98-001; 2014-129; 2012-041; 2011-068; 2009-210; 2006-026; 95-171; 2009-067; 2008-004; 2007-225; 2006-038; 2005-030; 2003-073; 98-006; 97-222; 95-351; 94-306; 93-055; 2008-065; 2014-122; 2007-206; 96-168; 2003-072; 2001-343; 98-210; 98-075; 97-400; 92-319; 2001-080; 2007-064; 2006-035; 2003-153; 2007-025; 2004-167; 2005-194; 2003-385; 98-126; 2016-044.

Source

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

Original opinion text

Opinion No. 2016-057
May 13, 2016
Jimmy G. Foreman
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Stacey Witherell, SPHR CLRP
Director of Human Resources
City of Little Rock Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201
Dear Mr. Foreman:
You have requested my opinion regarding the Arkansas Freedom of Information
Act ("FOIA"). Your request is based on 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 someone has submitted a FOIA request to the
City of Little Rock for your personnel file. You have forwarded several documents
that the custodian of records has determined are subject to release, with redactions;
and you have asked for my opinion on 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. The custodian has determined that all the records constitute personnel
records and that all are subject to release, with certain redactions, under the test for
disclosure of personnel records. Having reviewed the records, it is iny opinion
that ( 1) with one exception, the records are properly classified as personnel
records; (2) one record is an employee evaluation record, rather than a personnel
323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 · FAX (501) 682-8084
ARKANSASAG.GOV Jimmy G. Foreman
Opinion No. 2016-057
Page 2
record; and (3) each of the records is subject to release, as redacted by the
custodian.
It is therefore my opm1on that although one of the records was classified
incorrectly, the custodian's decision to release all the records, as redacted, is
consistent with the FOIA.
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.1
Therefore, in my opinion, the documents submitted are public records and 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.2 For purposes of the FOIA, these items can usually
be divided into two mutually exclusive groups: "personnel records"3 or "employee
1 Ark. Code Ann.§ 25-19-103(5)(A) (Supp. 2015). Jimmy G. Foreman
Opinion No. 2016-057
Page 3
evaluation or job performance records."4 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.5 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. "6
2 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;
requests for leave-without-pay; certificates of advanced training 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).
3 Ark. Code Ann.§ 25-19-105(b)(l2): "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."
4 Ark. Code Ann. § 25-19-105( c )( 1 ): "Notwithstanding subdivision (b )(12) 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."
5 See, e.g., Op. Att'y Gen. No. 1999-147; Watkins & Peltz, supra, at 187.
6 Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2013). Jimmy G. Foreman
Opinion No. 2016-057
Page 4
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,7 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. 8
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.9 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.10 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. 11 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. 12
Whether any particular personnel record's release would constitute a clearly
unwarranted invasion of personal privacy is always a question of fact. 13
7 Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).
8 Watkins & Peltz, supra note 4, at 191.
9 Id. at 598, 826 S.W.2d at 255.
10 Id., 826 S.W.2d at255.
11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
12 E.g., Op. Att'y Gen. Nos. 2001-112, 2001-022, 94-198.
13 Op. Att'y Gen. Nos. 2006-176, 2004-260, 2003-336, 98-001. Jimmy G. Foreman
Opinion No. 2016-057
Page 5
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:
• Personal contact information of public employees, including personal
telephone numbers, personal e-mail addresses, and home addresses (Ark.
Code Ann.§ 25-19-105(b)(13));
• Marital status of employees and information about dependents (Op. 2001-
080;
• 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 (Ark. Code Ann. § 25-l 9-105(b )(1 O));
• Driver's license numbers (Op. 2007-025);
• Insurance coverage (Op. 2004-167);
• Tax information or withholding (Ops. 2005-194, 2003-385); and
• Payroll deductions (Op. 98-126); banking information (Op. 2005-194).
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. 14 This exception includes records generated while investigating allegations
14 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; see, e.g., Op. Att'y Gen. Nos. 2009-067, 2008-
004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. Jimmy G. Foreman
Opinion No. 2016-057
Page 6
of employee misconduct that detail incidents that gave rise to an allegation of
misconduct. 15
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).16
   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:
   is Id.
   [I]t seems that the following factors should be considered in
   determining whether a compelling public interest is present: (I) 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"
   • 17 reqmrement.
   16 Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2013); Op. Att'y Gen. 2008-065.
   17 Watkins & Peltz, supra, at 217-18 (footnotes omitted). Jimmy G. Foreman
   Opinion No. 2016-057
   Page 7
   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, 18 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. 19
   Ill Application.
   We can now apply the foregoing to the attached documents. An email from the
   custodian of records, dated May 10, 2016, states that no employee performance
   records are included in the records to be released. In my opinion, however, one
   record, dated March 25, 2015, is an employee-evaluation record. This office has
   consistently opined that a letter detailing the reasons that served as a basis for
   disciplinary action is an employee-evaluation record for purposes of the FOIA.20
   The March 25, 2015 letter clearly falls into this category. As an employee-
   evaluation record, the letter cannot be released unless all four of the conditions
   outlined above are met. It appears that the first three conditions are met in this
   case.21 This leaves open only the question whether the circumstances prompting
   the disciplinary action are of compelling public interest.
   This office has repeatedly opined that, in certain situations, a compelling public
   interest exists in the disclosure of documents containing certain categories of
   information.22 The absence of a public controversy may be of minimal
   18 Id. at 216 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   19 Cf Op. Att'y Gen. 96-168; Watkins & Peltz, supra, at 204.
   20 Op. Att'y Gen. Nos. 2014-129, 2012-041, 2011-068, 2009-210, 2006-026, 95-171.
   21 With regard to the "formed a basis" element, a letter detailing disciplinary action, although
   written contemporaneously with the disciplinary action, has been classified by this office as
   forming a basis for the action where it reflects or details the incident(s) or conduct that Jed to the
   discipline. See Op. Att'y Gen. 2005-030, n. 3. Accord Op. Att'y Gen. 2006-026 (regarding a letter
   of termination).
   22 E.g. Op. Att'y Gen. Nos. 2003-072, 2001-343, 98-2 l 0, 98-075, 97-400 and 92-319 (violation of
   safety rules). Jimmy G. Foreman
   Opinion No. 2016-057
   Page 8
   significance in these cases.23 Additionally, with regard specifically to employee-
   evaluation records of law enforcement personnel, this office has previously
   observed that the public has a strong interest in a law enforcement officer's
   official conduct.24 There is "a strong case for the finding of a compelling public
   interest" where disciplinary records reflect "a violation of departmental rules by a
   'cop on the beat' in his interactions with the public."25
   The March 25, 2015 letter reflects that the discipline occurred as a result of
   violation of rules aimed at this type of conduct or behavior. Accordingly, it is my
   conclusion that the "compelling public interest" standard is met with respect to
   this record. Because the other conditions under Ark. Code Ann. § 25-19-105(c)(l)
   for release of the record have also been met, it is my opinion that the custodian's
   decision to release the record is consistent with the FOIA.
   The remaining documents are properly classified as personnel records, in my
   opinion. Whether the release of any particular personnel record would constitute a
   clearly unwarranted invasion of personal privacy is a question of fact.26 Having
   reviewed the records at issue, it is my opinion that disclosure of the records, as
   redacted, would not rise to the level of a clearly unwarranted invasion of personal
   pnvacy.
   In conclusion, therefore, it is my opinion that although one of the records was
   classified incorrectly, the custodian's decision to release all the records, as
   redacted, is consistent with the FOIA.
   Sincerely,
   Attorney General
   23 Op. Att'y Gen. 2014-122.
   24 Id. (quoting Watkins & Peltz, supra, at 217: "[T]he public has a great interest in the [job]
   performance of police officers .... ").
   25 Op. Att'y Gen. 2007-206.
   26 Op. Att'y Gen. Nos. 2016-044, 2006-176, 2004-260, 2003-336 and 98-001.