Are redactions of a school district employee's job application consistent with Arkansas FOIA?

Plain-English summary

Sonya Kindall asked the Arkansas Attorney General to review the Little Rock School District custodian's decision to release her personnel records with redactions. The requested records included an application, resume, job description, background checks, complaints, and disciplinary records. Attorney General Leslie Rutledge reviewed the supplied records and found the personnel-record classification and most redactions consistent with the FOIA.

The AG approved redacting Kindall's personal contact information, Social Security number, and specific education scores. She could not assess the removal of “Reason for Leaving” on page 3 of the job application or a phone number on page 4 because she did not have the unredacted version and the reasons were not apparent from the record's face. She also could not tell why two phone numbers on page 3 had been left visible. If they belonged to current or former public employees, their personal contact information was exempt.

The opinion gives no example of a “Reason for Leaving” response that would or would not qualify for redaction. It leaves that specific judgment unresolved.

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.

What this means for you

School district records custodians

Review each proposed redaction against the actual unredacted content. This opinion approved most of the supplied redactions but could not verify the “Reason for Leaving” entry or one phone number. For the two visible numbers, the AG said the contact information would be exempt if the people were public employees.

Employees and requesters

The AG did not order all application fields released or approve every redaction. She resolved the classification and most redactions, then identified four items whose treatment depended on information missing from her review.

Common questions

Q: Were Kindall's personnel records generally releasable with redactions?
A: The AG said the custodian's decision was mostly consistent with the FOIA and that the records were properly classified as personnel records.

Q: Could “Reason for Leaving” be redacted?
A: The AG did not decide. She lacked the unredacted answer and could not determine the basis for the redaction from the visible record.

Q: What about the three phone numbers the AG questioned?
A: One was redacted without an apparent basis, and two were left visible. The AG said the visible numbers would be exempt if they were personal contact information for public employees.

Background and statutory framework

The opinion describes personnel records as employee-related records other than employee evaluation and job performance records. A personnel record is open unless disclosure would be a clearly unwarranted invasion of personal privacy. Under Young v. Rice, the custodian balances the individual's privacy interest against the public interest, with a thumb on the scale favoring disclosure. A document that can be released may still contain discrete information that must be redacted.

Citations and references

Statutes: Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015), for AG review; Ark. Code Ann. § 25-19-105(b)(13), on public employees’ personal contact information.

Case: Young v. Rice, for the personnel-records privacy balance.

Source

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

Original opinion text

Opinion No. 2016-115
November 8, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Sonya Kindall
c/o Rhonda L. Benton, SPHR, SHRM-SCP, CLRP
Director of Human Resources
Little Rock School District
810 West Markham Street
Little Rock, AR 72201

Dear Ms. Kindall:

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 requested copies of all your non-exempt personnel records, including your application, resume, job description, background checks, complaints from any and all parties, and all records that resulted in disciplinary actions. In response to the FOIA request, the records custodian has decided that the responsive records are personnel records that should be disclosed after redacting certain information, including your personal contact information. You ask whether the custodian's decision to release the records, as redacted, is consistent with 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 is for the most part consistent with the FOIA. Having reviewed the records, it is my opinion that the records have been properly classified as personnel records and that the redactions made by the custodian are for the most part consistent with the FOIA. I cannot, however, definitively assess the custodian's decision to redact two items from your job application. Nor can I determine why two phone numbers were not redacted from this record.

I will set out all the definitions and standards and then apply them to the records you attached.

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 Little Rock School District, which is a public entity. As for the second element, the FOIA defines "public record" as writings and electronic information that constitute a record of the performance or lack of performance of official functions by a public employee or agency, with records maintained in public offices presumed to be public records. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exemption 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.

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 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 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:

• 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. Att'y Gen. 2001-080);
• Dates of birth of public employees (Op. Att'y Gen. 2007-064);
• Social Security numbers (Ops. Att'y Gen. 2006-035, 2003-153);
• Medical information (Op. Att'y Gen. 2003-153);
• Any information identifying certain law enforcement officers currently working undercover (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers (Op. Att'y Gen. 2007-025);
• Insurance coverage (Op. Att'y Gen. 2004-167);
• Tax information or withholding (Ops. Att'y Gen. 2005-194, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and
• Banking information (Op. Att'y Gen. 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 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).

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.

In my opinion, the custodian has properly classified the records at issue as your personnel records. The custodian has also properly redacted your personal contact information and your other confidential information, including your social security number and specific education scores.

I cannot, however, definitively assess the custodian's decision to redact the "Reason for Leaving" on page 3 of your job application. The basis for this redaction cannot be determined from the face of the record, and I do not have the un-redacted record. I must similarly question the redaction of a phone number on page 4 of this same job application, as the basis for this redaction cannot be determined from the face of the records. Finally, I am also unable to determine from the face of the record why two phone numbers have not been redacted on page 3 of the same job application. If these people were or are public employees, then their personal contact information is exempted from disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General