Can an Arkansas community college employee block release of his Employee Disclosure and Certification form and his employment contract under FOIA when someone asks whether he is related to a board trustee?

Plain-English summary

Someone asked East Arkansas Community College in Forrest City to identify any EACC employees, faculty, or staff who were related by blood or marriage to a member of the EACC Board of Trustees, plus their salaries and benefits, and whether trustees set those salaries. EACC employee Dave P. Hodges objected to release of two records about him: his Employee Disclosure and Certification form (a state-OPM form prospective state employees sign to disclose family relationships to constitutional officers, legislators, board members, etc.) and his employment contract.

Under Ark. Code Ann. § 25-19-105(c)(3)(B)(i), Hodges asked the AG to opine on whether the custodian's release decision was consistent with the FOIA. AG Leslie Rutledge ruled:

• The Employee Disclosure and Certification form must be disclosed, with Hodges's Social Security number redacted. As a personnel record, it was open to inspection except to the extent disclosure would constitute a "clearly unwarranted invasion of personal privacy" under Ark. Code Ann. § 25-19-105(b)(12). Applying the Young v. Rice balancing test, the form did not clear that bar.
• The employment contract is a different posture. The AG could not tell from Hodges's letter whether the custodian had actually decided to release it, so there was no decision to opine on. As a general matter, however, prior AG opinions had consistently held that employment contracts of public employees must be disclosed with exempt information redacted.

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.

What the Young v. Rice balancing test required

Young v. Rice, 308 Ark. 593 (1992), gives Arkansas custodians a two-step analysis for personnel records:

1. Privacy interest threshold. Is the information of a personal or intimate nature creating a "greater than de minimis" privacy interest? If not, the FOIA's "thumb on the scale" favoring disclosure ends the inquiry.
2. Public-interest balancing. If the privacy interest is more than de minimis, does the public interest in disclosure outweigh it? The person resisting disclosure bears the burden under Stilley v. McBride, 332 Ark. 306 (1998).

The AG observed that whether release would constitute a "clearly unwarranted invasion of personal privacy" is always a question of fact, but on the form the AG had reviewed, the privacy interest (apart from the SSN) did not outweigh public interest in confirming whether public employees were related to trustees who might affect their pay.

Items that must be redacted from any personnel record release

The opinion catalogued the recurring items that have to come out before a personnel record is released:

• Personal contact information of public employees (personal phone, personal email, home address) under Ark. Code Ann. § 25-19-105(b)(13)
• Marital status and information about dependents (Op. Att'y Gen. 2001-080)
• Dates of birth (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)
• Information identifying undercover law enforcement officers under 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 / withholding (Ops. Att'y Gen. 2005-194, 2003-385)
• Payroll deductions (Op. Att'y Gen. 98-126)
• Banking information (Op. Att'y Gen. 2005-194)

Common questions

What is the Employee Disclosure and Certification form?
It's an Arkansas Office of Personnel Management form prospective state employees sign to disclose whether they or any relative is a current/former constitutional officer, former member of the General Assembly, or member of a state board or commission. The opinion footnote ties it to Ark. Code Ann. § 21-1-401 et seq., § 25-16-1001 et seq., and Executive Order 98-04.

Does this rule apply to private-sector employers?
No. The Arkansas FOIA only reaches "public records" held by entities subject to the act. The form is a public record because EACC is a public entity. A private college's HR file would be governed by entirely different rules.

What if my SSN is on the document?
Under longstanding AG opinions, SSNs must be redacted before release. That redaction is what the EACC custodian had already done in this case.

The opinion mentions personnel vs. employee evaluation records. What's the difference?
The two categories are mutually exclusive. "Personnel records" cover everything except evaluation/job-performance records. Evaluation records are governed by Ark. Code Ann. § 25-19-105(c)(1) and have a different release standard, opening up only after final administrative resolution of any suspension or termination plus a compelling-public-interest finding.

Is there a requester-identity factor?
No. The Young v. Rice test is objective. The fact that the subject (the employee) considers release an invasion of personal privacy is irrelevant to the analysis. The custodian's job is to weigh privacy against public interest in disclosure, not the requester's identity or motives.

Background and statutory framework

The Arkansas FOIA defines "public record" broadly, capturing any "writings, recorded sounds, films, tapes, electronic or computer-based information, or data compilations" maintained by public employees within the scope of their employment. Ark. Code Ann. § 25-19-103(7)(A). Documents in a public employee's personnel file at a public college fit easily within that definition.

The personnel-records exemption at § 25-19-105(b)(12) is a calibrated privacy carve-out, not a blanket sealing. It applies only "to the extent" disclosure would constitute a "clearly unwarranted invasion of personal privacy," which the Young court read against the FOIA's broad pro-disclosure thumb.

The custodian's decision is reviewable on the AG's desk through the procedure in § 25-19-105(c)(3)(B)(i). Either the custodian, the requester, or the subject of the records can ask the AG to opine on whether the custodian's release decision is consistent with the FOIA. The AG's review is limited to the decision actually made; if no decision exists yet on a record, the AG cannot reach it (which is why the employment contract question went unresolved here).

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public record")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover officer identifying information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• 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)
• John J. Watkins & Richard J. Peltz, The Arkansas Freedom of Information Act (Arkansas Law Press, 5th ed. 2009)

Source

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

Original opinion text

Opinion No. 2017-020
February 21, 2017

Dave P. Hodges
c/o Dr. Coy Grace, President
East Arkansas Community College
1700 Newcastle Road
Forrest City, AR 72335

Dear Mr. Hodges:

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 "the names of any and all employees, faculty or staff of East Arkansas Community College that are related to, whether by blood or marriage, any member of the East Arkansas Community College Board of Trustees. For each such employee, faculty or staff, please provide their salary, benefits received. Also provide whether or not Trustee members determine the amount of salaries for any such family members." You object to disclosure of records responsive to the above referenced request, though you do not set out the basis for your objection. You ask whether the custodian's decision to disclose your "Employee Disclosure and Certification form followed by possible disclosure of [your] employee contract" is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed your Employee Disclosure and Certification form, it is my opinion that this record is properly classified as your personnel record, and that it must be disclosed as redacted. With respect to your employment contract, I cannot conclusively determine from your letter requesting my opinion whether the custodian has made a decision to release your employment contract. As such, there is no decision upon which I can opine. As a general matter, however, this office has opined that employment contracts of public employees must be disclosed with exempt information redacted.

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.

With respect to the records at issue, the first two elements appear met in this case. As to the first element, the documents are held by the East Arkansas Community College, which clearly is a public entity. As to the second element, the FOIA defines a "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.

Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2015).

As I understand it, the documents at issue are a part of your personnel file. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exception 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" or "employee evaluation or job performance records." Because the documents at issue concern 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. 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, 308 Ark. 593, 826 S.W.2d 252 (1992), 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. Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 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).

III. Application.

With respect to the Employee Disclosure and Certification form, this is clearly a personnel record that is subject to disclosure under the FOIA. In my opinion, the information contained therein, with the exception of your Social Security number that has been redacted, does not rise to the level of a clearly unwarranted invasion of personal privacy under the Young v. Rice test described above. Accordingly, it is my opinion that the custodian's decision to release the record as redacted is consistent with the FOIA.

This form is an older version of the Office of Personnel Management's Employee Disclosure/Certification and Employment of Family Members Form that prospective state employees must sign to disclose whether they or a relative are, inter alia, a current or former constitutional officer, former member of the General Assembly, or member of a state board or commission. Cf. Ark. Code Ann. § 21-1-401 et seq. (Repl. 2016), § 25-16-1001 et seq. (Repl. 2014), and Executive Order 98-04.

As to the release of your employment contract, it is unclear from your letter whether the custodian has made a decision as to whether it should or will be released. Because my statutory duty is to assess whether the custodian's decision regarding the release of records is consistent with the FOIA, I cannot conclusively opine on this matter. But this office has long held that employment contracts of public employees are personnel records generally subject to disclosure except to the extent they contain discrete information that would constitute a clearly unwarranted invasion of personal privacy, such as the items listed above that would need to be redacted. Cf. Ops. Att'y Gen. 2003-385, 93-337, 88-147.

Sincerely,

LESLIE RUTLEDGE
Attorney General