Can Arkansas DHS withhold employee records because the FOIA requester might harass employees?

Plain-English summary

Three Arkansas Department of Human Services employees asked the Attorney General to review a custodian's plan to release their personnel records with redactions. They raised concerns about the requester's identity, possible harassment, and the public interest in some of the information. After reviewing the redacted records, Attorney General Leslie Rutledge agreed with their classification as personnel records and found the planned release mostly consistent with the FOIA.

The AG said custodians generally cannot consider a requester's identity or motives when handling a FOIA request. The legislature had not created a general harassment exemption for otherwise disclosable personnel records. The opinion also says job applications of public employees rarely contain information whose release would be a clearly unwarranted invasion of personal privacy, apart from exempt items.

Two exposed numbers still needed correction: a Social Security number on Michael Munnerlyn's “Proof of Prior Service” form and another employee's personnel number on a “Hiring Freeze Exception Request.” The AG could not definitively assess why contact information for some, but not all, references had been redacted because she lacked the unredacted originals. She said personal contact information for current or former public employees would clearly be exempt. She did not decide the status of private references' contact information or discuss signatures.

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

DHS employees and requesters

An objection based on the requester's identity or feared harassment did not justify withholding these personnel records. The AG's conclusion still required correction of two exposed identifying numbers before release.

Records custodians

Check the redacted copy for exposed Social Security and personnel numbers. For reference contact information, determine whether the people are current or former public employees and review the unredacted material before deciding what to withhold. The AG declined to approve or reject the questioned reference redactions without that material.

Common questions

Q: Can a public employee block release because they fear harassment by the requester?
A: The AG said the legislature had not created a general harassment exemption and custodians generally do not consider requester identity or motives.

Q: What corrections did the AG require before release?
A: Redaction of one Social Security number and another state employee's personnel number that remained visible.

Q: Did the AG say all private-sector reference contacts must be released?
A: No. She did not decide the questioned reference redactions without the unredacted documents. She said only that current or former public employees' personal contact information was clearly exempt.

Q: Did this opinion address signatures on personnel records?
A: No. The opinion contains no signature-redaction ruling.

Background and statutory framework

The opinion treats public-employee applications and accompanying records as personnel records. Under Young v. Rice, disclosure is weighed against privacy with a thumb on the scale favoring disclosure. The AG says an otherwise releasable document may still contain discrete information that must be redacted. Here she reviewed the redacted copies, found most choices proper, and identified both missed numbers and reference redactions she could not verify.

Citations and references

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

Case: Young v. Rice, on personnel-records privacy balancing.

Source

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

Original opinion text

Opinion No. 2016-118
November 21, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Claudette Holt, Deputy Director
Michael Munnerlyn, Audit Coordinator
David Tures, Internal Auditor
DHS Office of Payment Integrity & Audit
P. O. Box 1437, Slot S270
Little Rock, AR 72203-1437

Dear Ms. Holt and Messrs. Munnerlyn and Tures:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made pursuant to Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2015). This subsection authorizes the custodian, requestor, 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 the Arkansas Department of Human Services ("DHS") has received an FOIA request regarding your personnel records. In response to the FOIA request, the records custodian has identified certain records and has determined that the records are personnel records that should be disclosed after redacting certain information, including your personal contact information. You object to the disclosure of these records and have proffered numerous reasons for your objection. These reasons can be divided into two basic categories: 1) the identity of the requestor and concerns about possible harassment; and 2) doubts as to whether there is a sufficient public interest in some of the information contained in the records.

RESPONSE

An opinion of this office issued pursuant to the FOIA is limited to reviewing the custodian's decision with respect to the release of personnel or employee-evaluation records or both. I am not authorized under the FOIA to address specific questions posed by the custodian, subject, or requestor of the records. I can only address the decisions made by the custodian regarding the records at issue; and I will discuss the pertinent provisions of the FOIA bearing on these records.

Having reviewed the redacted records, it is my opinion that the records have been properly classified as personnel records. It is my further opinion, based on the face of the records, that the custodian's decision to release the records as redacted is for the most part consistent with the FOIA. But I cannot definitively assess the custodian's decision to redact certain contact information from your resumes. Nor can I determine why one Social Security number was not redacted from the records, other than perhaps by oversight. I also note the need to redact another employee's personnel number prior to the records' release.

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, there must be no exemptions that allow the document to be withheld.

The first two elements are clearly met in this case. As for the first element, the documents are held by DHS, an agency of the State of Arkansas, which clearly is a public entity and thus subject to the FOIA. As for the second element, an employment application kept by DHS clearly qualifies as a "public record."

II. Exceptions to disclosure

In my opinion, the most relevant exemption here is the one for "personnel records." While the FOIA does not define the term "personnel records," this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. This office and the two leading commentators on the FOIA have repeatedly observed that job applications of public employees, and accompanying records, such as resumes and standard employee-intake documents, generally fall within this definition. Accordingly, such records must be released unless doing so constitutes 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. But the mere fact that the subject of a record may consider the record's release an unwarranted invasion of his 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); and
• Payroll deductions (Op. Att'y Gen. 98-126);
• Banking information (Op. Att'y Gen. 2005-194).

III. Application

In my opinion, the custodian has properly classified the records at issue as your personnel records and has, for the most part, correctly redacted exempt information under the above test for the release of personnel records. It is my opinion that disclosure of these records, as redacted, does not constitute a clearly unwarranted invasion of personal privacy.

Your objections to the records' release can be separated into two basic objections: 1) the identity of the requestor with concerns about possible harassment; and 2) doubts as to the existence of a sufficient public interest in some of the information contained in the records. With respect to the first objection, this office has long noted that custodians are generally not permitted to take the requestor's identity or motives into account when responding to an FOIA request. The General Assembly has not seen fit to establish a generalized "harassment exemption" to the release of otherwise disclosable personnel records. Accordingly, in my opinion, that basis for your objection is insufficient to overcome the law's requirement that the records be released.

As to the second objection, job applications of public employees rarely contain information the disclosure of which constitutes a clearly unwarranted invasion of personal privacy, save for the types of information I have listed above. As such, in my opinion, your doubts as to the public interest in certain information contained in the records would not form the basis for DHS to either withhold your employment applications or make additional redactions under the personnel records exemption.

In my opinion, the custodian has properly redacted your personal contact information and your other confidential information, except in one instance where a Social Security number has not been redacted (see "Proof of Prior Service" form for Michael Munnerlyn). I also note, on another document (OPM form entitled "Hiring Freeze Exception Request"), the personnel number of another state employee, whether current or former, was not redacted. This would need to be corrected prior to disclosure.

The custodian made some redactions, however, that are questionable from the face of the records before me, specifically, the decision to redact contact information of some (but not all) of your business and personal references. Not having seen the original, unredacted documents, though, I cannot definitively opine on the propriety of the custodian's decision or determine the basis for these redactions. I will simply note that if these individuals are current or former public employees, then their personal contact information is clearly exempt from disclosure.

Sincerely,

LESLIE RUTLEDGE
Attorney General