Can a state agency release a public employee's driving record in response to an Arkansas FOIA request for the personnel file?

Plain-English summary

Thomas H. Hatcher, a former employee at the Office of the State Treasurer, learned that someone had submitted a FOIA request for his personnel file. The custodian decided to release the records, including Hatcher's driving record, with certain redactions. Hatcher objected to the driving-record release, citing personal privacy. Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), Hatcher asked AG Leslie Rutledge whether the custodian's decision was consistent with the FOIA.

The AG concluded the release (as redacted) was consistent with the FOIA. The driving record was a personnel record, and any privacy interest in it was de minimis because the underlying driving record already exists as a matter of public record.

Currency note

This opinion was issued in 2017. 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.

Why the privacy interest was de minimis

The Young v. Rice balancing test has two steps:

1. Is the privacy interest greater than de minimis? If not, the FOIA's pro-disclosure thumb wins.
2. If yes, does the public interest in disclosure outweigh it?

The AG's analysis stopped at step 1. The reasoning was simple: a driving record kept by the state Office of Driver Services is itself a public record. A copy of that public record sitting in an employee's personnel file does not gain new privacy protection just because of where it sits. There is no privacy interest in keeping confidential a record that the world can already see.

The custodian had also redacted certain items the AG's prior opinions require be removed before any personnel-record release: SSN, date of birth, marital status, dates of birth, dependent information, etc. The AG concluded those redactions were proper and no further redactions were required.

Common questions

Why is a driving record kept in a personnel file? For positions that involve driving (state vehicles, agency cars), employers commonly require periodic motor vehicle record checks as a condition of employment. The agency keeps the resulting record in the personnel file.

What does "de minimis" mean here?
"De minimis" means below the threshold the law cares about. Courts use it to dispose of claims where the privacy interest is too small to weigh meaningfully against the FOIA's strong pro-disclosure presumption.

Could the result be different for an active undercover officer? Yes. Ark. Code Ann. § 25-19-105(b)(10) requires redaction of any information identifying a law-enforcement officer currently working undercover, which would override the regular driving-record analysis.

Did the requester have to give a reason for asking? No. The Arkansas FOIA does not require requesters to explain why they want records, and the Young v. Rice test is an objective one. The subject's view of whether release feels like a privacy invasion is irrelevant.

What if the driving record contains accidents or violations that didn't lead to convictions? Convictions are public. Accidents and citations are typically public to varying degrees depending on what the underlying record contains. The AG did not parse those sub-questions because the privacy interest was de minimis.

Background and statutory framework

The AG's review process is set out in Ark. Code Ann. § 25-19-105(c)(3)(B)(i): the custodian, requester, or subject can ask the AG whether the custodian's release decision is consistent with the FOIA. The AG opines only on decisions actually made.

The personnel-records exemption sits at § 25-19-105(b)(12) and applies "to the extent" disclosure would constitute a "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court fleshed out that phrase in Young v. Rice, 308 Ark. 593 (1992), establishing the two-step balancing test.

Items always redacted before personnel-record release include SSN, DOB, marital status, dependent information, medical information, undercover officer identifiers, driver's license numbers, insurance, tax/withholding, payroll deductions, and banking information.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public record")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer info redaction)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact info redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation/job performance records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG review procedure)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)

Source

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

Original opinion text

Opinion No. 2017-009
January 30, 2017
Thomas H. Hatcher
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Arkansas Treasurer of State
State Capitol, Suite 220
Little Rock, AR 72201
Dear Mr. Hatcher:
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 a request has been made for your personnel file under the FOIA. The records that the custodian intends to release in response to this request include your driving record. The custodian has decided to release this record with certain redactions. You object to the release of your driving record, citing your personal privacy interest, and you ask whether the custodian's decision in this regard is consistent with the FOIA. RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the custodian's decision is consistent with the FOIA. 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKAN SAS AG .GOV Thomas H. Hatcher Opinion No. 2017-009 Page 2 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 Office of the State Treasurer, 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. 1 Therefore, in my opinion, these documents 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 1 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2015). 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). Thomas H. Hatcher Opinion No. 2017-009 Page 3 be divided into two mutually exclusive groups: "personnel records"3 or "employee evaluation or job performance records."4 Because your objection concerns only the personnel-records exemption, I will limit my discussion to that exemption. The FOIA does not define the term "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.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 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 3 Ark. Code Ann. § 25-19-1OS(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 wou Id constitute a clearly unwarranted invasion of personal privacy." 4 Ark. Code Ann. § 25-19-105(c)(l): "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. 1999-147; Watkins & Peltz at 187. 6 Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2015). 7 308 Ark. 593, 826 S.W.2d 252 (1992). 8 Watkins & Peltz, supra note 2, at 191. Thomas H. Hatcher Opinion No. 2017-009 Page 4 personal or intimate nature such that it gives rise to a greater than de minimis privacy interest.9 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. 10 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. 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 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)(l3));
• 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-l 9-105(b )(1 O)); 9 Young, 308 Ark. at 598, 826 S.W.2d at 255. 10 Id., 826 S.W.2d at 255. 11 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 12 E.g., Ops. Att'y Gen. 2001-112, 2001-022, 94-198. 13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I. Thomas H. Hatcher Opinion No. 2017-009 Page 5
• 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).
  III. Application.
  I can now apply the foregoing to the driving records at issue, which the custodian has decided must be disclosed, with certain redactions. In my opinion, the redactions that have been made are proper, and no further redactions are required. While disclosure arguably implicates some privacy interest, in my opinion, that interest is de minim is. This is because the information contained in the challenged records already exists as a matter of public record. Thus under the above analysis, disclosure is proper. Accordingly, in my opinion, the decision of the custodian to release the driving- record portion of your personnel records, as redacted, is consistent with the FOIA. Sincerely,
  ~ESL~
  Attorney General