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

Plain-English summary

A Little Rock School District employee, Sonya Kindall, asked the AG to review LRSD's decision to release her personnel file (application, resume, job description, background checks, complaints, and disciplinary records) with certain redactions. The custodian had decided the records were personnel records and would be released after redacting personal contact information and a handful of other items.

AG Leslie Rutledge approved most of the call. The records were properly classified as personnel records, and the redactions were largely consistent with the FOIA. The AG could not verify two redactions and two non-redactions because she did not have the un-redacted versions:

• The "Reason for Leaving" entry on page 3 of the job application was redacted. The basis for that redaction was not apparent from the face of the records.
• A phone number on page 4 of the same application was redacted. Again, the basis was not apparent.
• Two phone numbers on page 3 of the same application were left un-redacted. If those numbers belonged to current or former public employees, they should have been redacted under § 25-19-105(b)(13).

The opinion is a clean statement of the standard redaction list for an Arkansas personnel file: personal contact info, marital status, dates of birth, social security numbers, medical info, undercover officer info, driver's license numbers, insurance coverage, tax withholdings, payroll deductions, banking, and specific education scores.

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

Q: What items must always be redacted from an Arkansas personnel record before release?
A: Per this opinion and the AG opinions it collects, the standard list is: personal contact information of public employees (§ 25-19-105(b)(13)), marital status and dependent info, dates of birth, social security numbers, medical information, undercover law enforcement identifying info (§ 25-19-105(b)(10)), driver's license numbers, insurance coverage, tax information or withholding, payroll deductions, and banking information. The AG also notes that specific education scores (not general educational background) are not necessary to satisfy the public interest and can be redacted.

Q: What is the Young v. Rice balancing test?
A: A two-step test for whether release of a personnel record would invade personal privacy. Step 1: Is the information of a personal or intimate nature, raising more than a de minimis privacy interest? Step 2: If yes, does the public's interest in disclosure outweigh the privacy interest? The burden is on the person resisting disclosure (Stilley v. McBride).

Q: Why does it matter whether un-redacted phone numbers belong to public or private employees?
A: Section 25-19-105(b)(13)'s redaction protection covers personal contact information of public employees and certain references. Private-sector references' contact information is generally not protected from disclosure.

Q: Can a job applicant's "reason for leaving" a prior position be redacted?
A: Maybe, depending on context. If the reason is intimate or sensitive in nature (medical, family, harassment), redaction can survive Young v. Rice balancing. If the reason is generic ("moved out of state," "career change"), the public-interest thumb on the scale wins. The custodian must apply the test, document the analysis, and stand by it on review.

Background and statutory framework

Section 25-19-105(b)(12) protects "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." This office has consistently defined personnel records as all records other than employee evaluation and job performance records that pertain to individual employees. Young v. Rice provides the privacy balancing analysis with a thumb on the scale favoring disclosure.

Section 25-19-105(c)(1) (the evaluation-records exemption) covers a separate category created by or at the employer's behest to evaluate the employee. The four-part release test (suspension/termination, finality, basis, compelling interest) applies only to those records. Thomas v. Hall synthesizes the definition.

Even when a record is releasable, certain items must be redacted. The AG's opinions and the leading commentary build a standard redaction list (above).

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (public record)
• Ark. Code Ann. § 25-19-105(b)(10), (12), (13) (exemptions)
• Ark. Code Ann. § 25-19-105(c)(1) (evaluation records test)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (opinion review)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden of resister)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (evaluation record definition)

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