Can a FOIA requester get the names, salaries, and years of service for University of Arkansas for Medical Sciences employees?

Plain-English summary

Three University of Arkansas for Medical Sciences (UAMS) Respiratory Care Services employees, John R. Keller, Jr., Janice Harris-Crawford, and Robert Bopp, learned that someone had filed an Arkansas FOIA request asking UAMS for their salaries from 2013 forward and their years of service. The UAMS records custodian decided the requested information was releasable. The three employees, as subjects of the records, asked the AG to confirm.

AG Leslie Rutledge agreed with the custodian. UAMS is a public entity; the requested data clearly qualifies as a public record; and the only exemption that could apply, the personnel-records exemption in § 25-19-105(b)(12), does not protect names, salaries, or dates of hire. The opinion summarizes a long line of AG opinions holding that public employees' names, salaries, and dates of hire are personnel records subject to disclosure.

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 basic rule that public-employee salary is open under Arkansas FOIA has been consistent for decades, but custodians should always check the current statute and recent AG opinions before responding to a specific request.

Background and statutory framework

Under Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., a record must be released if (1) it is held by an entity subject to FOIA, (2) it is a public record, and (3) no exception applies.

UAMS is a public entity, so element one is satisfied. A salary roster and date-of-hire list are records of the performance of official functions paid for by public funds, so they fall squarely inside the FOIA definition of "public record" in § 25-19-103(5)(A).

The only plausible exception is the personnel-records exemption in § 25-19-105(b)(12), which protects personnel records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Under Young v. Rice, 308 Ark. 593 (1992), that test is a two-step balancing exercise with the thumb on the scale for disclosure:

1. Does the information create more than a de minimis privacy interest?
2. If so, does that interest outweigh the public's interest in disclosure?

The party resisting disclosure bears the burden (Stilley v. McBride, 332 Ark. 306 (1998)).

Why salary is releasable

Public-employee salary is paid from public funds. The public interest in knowing how government money is spent is foundational to FOIA. Arkansas AG opinions have repeatedly identified names, salaries, and dates of hire as personnel records that are open by default. Op. 2016-103 cites the line that runs through Ops. 2015-016, 2012-017, 2011-125, 2007-070, and 2004-225.

The objective test cuts off any argument the subject employees might make about embarrassment or unwanted attention. As the AG repeats: "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."

Years of service vs. date of birth

The AG treats years of service (calculated from date of hire) as releasable, but in other opinions the AG has consistently treated date of birth as withholdable. The line is between information needed to evaluate public spending and accountability (years of service, hire date) and information that creates identity-theft or personal-safety risk without serving an accountability purpose (date of birth, SSN, home address).

Common questions

Q: Can a member of the public get the salary of every state employee in Arkansas?
A: As a baseline rule under this opinion and consistent prior AG opinions, yes for names, salaries, and dates of hire. Practical limits (record-collection burden, fees, and which agency holds the records) apply, and certain narrow categories may have additional protections.

Q: Can I, as the subject employee, block release of my salary?
A: No. The test is objective, and salary information has long been treated as releasable. The subject's personal preference does not change the outcome.

Q: What about my home address and date of birth?
A: Home address (§ 25-19-105(b)(13)) and date of birth (per consistent AG opinions including 2007-064) must be redacted. So must SSN, medical information, marital status and dependents, driver's license, insurance and banking information.

Q: Does this apply to private employees of state contractors?
A: The rule applies to public entities and public employees. A private contractor's employees are not directly covered, though contracts with the state may include some open-records provisions.

Q: Where do I file a FOIA request for UAMS records?
A: With the UAMS records custodian. UAMS, as part of the University of Arkansas system, has a FOIA process documented on its institutional website. A denied request can be challenged via an AG opinion under § 25-19-105(c)(3)(B)(i) or in circuit court.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exemption
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG-opinion review process
• Ark. Code Ann. § 25-19-103(5)(A), definition of "public record"

Cases:

• 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

Prior AG opinions in this line:

• Op. Att'y Gen. 2015-016
• Op. Att'y Gen. 2012-017
• Op. Att'y Gen. 2011-125
• Op. Att'y Gen. 2007-070
• Op. Att'y Gen. 2004-225

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2016-103
October 12, 2016
John R. Keller, Jr., BS, RRT-ACCS, CPFT
Director, Respiratory Care Services
4301 West Markham Street, #593
Little Rock, AR 72205-7199
Janice Harris-Crawford
Respiratory Care Services
4301 W. Markham St., #593
Little Rock, AR 72205-7199
Robert Bopp, RRT
ICU Coordinator
Respiratory Care Services
4301 W. Markham St., #593
Little Rock, AR 72205-7199
Dear Ms. Harris-Crawford and Messrs. Keller and Bopp:

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.

It is my understanding that someone has made a request for your salaries from
2013 to present, as well as your years of service with the University of Arkansas
for Medical Sciences ("UAMS"). The custodian of records has determined that a
record of this information is subject to release under the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. In my opinion, the custodian's decision to release this information is
consistent with the FOIA. A record of this information constitutes a personnel
record. And this office has consistently opined that public employees' names,
salaries, and dates of hire are personnel records that are subject to disclosure.

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.

Based on my understanding of what has been requested, the first two elements
appear met in this instance. As for the first element, the documents are held by
UAMS, which is a public entity. As for the second element, the FOIA defines
"public record" as:

[W]ritings, 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.

A record of UAMS employees' salaries and years of service plainly meets this
definition of a public record and therefore would have to be disclosed unless some
specific exemption under the Act provides otherwise.

II. Exemptions 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" and
"employee evaluation or job performance records." The tests for whether these
two types of documents may be released differ 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 exemption. 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.

In my opinion, the personnel-records provision is the relevant exemption in this
instance. I will therefore limit my discussion to personnel records.

The FOIA does not define "personnel records." 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 likewise 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 minimis
privacy interest. If the privacy interest is merely de minimis, then the thumb on
the scale favoring disclosure outweighs the privacy interest. Second, if the
information does give rise to a greater than de minimis privacy interest, then the
custodian must determine whether that interest is outweighed by the public's
interest in disclosure. Because the exemptions 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.

III. Application.

This office has long maintained that public employees' names, salaries, and dates
of hire are personnel records that are subject to disclosure. As the record at issue
here is limited to your names, salaries since 2013, and dates of hire (and a
corresponding calculation of your years of service), it is my opinion that the
custodian's decision to release such record is consistent with the FOIA.

Sincerely,

LESLIE RUTLEDGE
Attorney General