Can an Arkansas agency redact other employees' names from a personnel file the subject is entitled to see?

Plain-English summary

The Arkansas Department of Finance and Administration received a FOIA request from a former employee (through her representative) for her personnel file, all documents referencing the reason for her termination, and all emails containing her name from the previous year. DF&A produced one document with redactions and asked the AG whether the redactions were consistent with the FOIA.

Attorney General Leslie Rutledge concluded:

• The former employee had a clear FOIA right of access to her own personnel and evaluation records, under Ark. Code Ann. § 25-19-105(c)(2).
• The document at issue was a "mixed record," meaning it functioned simultaneously as the former employee's record and as a record of one or more other employees.
• The personnel-records and evaluation-records exceptions could shield other employees' information, but only if specific tests were met.
• Looking at just the face of the document, the AG could not see what made the redacted portion meet either exception.
• That said, the custodian might know facts that justified the redaction. The AG was not the factfinder.

The result was an unsatisfying middle ground: the AG could not say the redaction was clearly improper, but could not say it was clearly justified either. The custodian had to do the analysis with the actual facts. The implicit pressure was on DF&A to either release the redacted information or document a specific basis for keeping it back.

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.

Common questions

Q: What is a "mixed record" under Arkansas FOIA?
A: A record that functions in more than one of the following ways simultaneously: (1) more than one person's employee evaluation record; (2) more than one person's personnel record; or (3) at least one person's evaluation record and at least one person's personnel record. Internal investigation records often fall into this category, because they evaluate the subject of the investigation while also containing information about other employees who were involved or interviewed.

Q: What is the personnel-records test in Young v. Rice?
A: A two-step balancing test from Young v. Rice (1992):

1. Does the information rise above a "de minimis" privacy interest? If not, the record is open.
2. If yes, does the public's interest in disclosure outweigh that privacy interest?

The scales tilt toward disclosure. The party resisting disclosure bears the burden of proving the privacy interest wins. Whether the subject would consider release an invasion is irrelevant; the test is objective.

Q: What is the four-prong test for evaluation records?
A: Evaluation or job performance records cannot be released unless all four prongs are met:

1. The employee was suspended or terminated (level of discipline);
2. There has been a final administrative resolution of the suspension/termination (finality);
3. The records formed a basis for the decision (basis); and
4. There is a compelling public interest in disclosure (compelling interest).

The "compelling interest" prong is the hardest. A general interest in public-employee performance is not enough. There must be a specific public controversy linking the agency, the employee, and the records.

Q: What categories of information are required to be redacted regardless of the document's status?
A: The opinion lists the standard items: personal contact information (Ark. Code Ann. § 25-19-105(b)(13)); marital status and dependent information; dates of birth; Social Security numbers; medical information; identifying information about undercover law enforcement officers (§ 25-19-105(b)(10)); driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; and banking information. These are mandatory redactions on top of any document-level analysis.

Q: What was the practical instruction to DF&A?
A: The custodian had to (1) classify the document (personnel record, evaluation record, or mixed) and (2) apply the appropriate test. If the redacted portion was simply another employee's name appearing in passing, that probably did not rise above a de minimis privacy interest, especially when the requester (the former employee) was already a participant in the events the document recorded. If there was something specific about the redacted portion (like medical information about another employee, or details about an undercover officer), the redaction was likely proper.

Q: How is this different from Op. 2017-036 from the same week?
A: 2017-036 dealt with releasing a grievance file to the subject of the grievance. There, the AG concluded the disclosure was largely proper but flagged additional redactions the custodian had missed. Both opinions confirm that the FOIA's subject-access rule (§ 25-19-105(c)(2)) is robust: a public employee or former employee gets to see their own file even when standard exceptions might otherwise apply. Both also confirm that the custodian must independently address redactions for other employees' information that appears in the file.

Background and statutory framework

Arkansas's FOIA gives public employees a strong subject-access right: they can see their own personnel records and evaluation records, even when those records would otherwise be exempt from public disclosure. The interaction between subject access and the rights of other people whose information appears in the same document is the recurring fact pattern in mixed-records cases.

The opinion's framework, two-step Young test for personnel records, four-prong test for evaluation records, was already settled doctrine by 2017. What this opinion adds is a useful illustration of the AG's review practice: the AG looks at the document, applies the framework, and either endorses the custodian's call, identifies missed redactions, or (as here) flags that the redaction is not obviously supported on the face of the record. The AG's role is consultative; the custodian retains the duty to do the analysis with full facts.

Citations

• Ark. Code Ann. § 25-19-105(b)(12), (b)(13), (b)(10)
• Ark. Code Ann. § 25-19-105(c)(1), (c)(2), (c)(3)
• Young v. Rice, 308 Ark. 593 (1992)
• Stilley v. McBride, 332 Ark. 306 (1998)
• Thomas v. Hall, 2012 Ark. 66

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Opinion No. 2017-034
March 20, 2017
Jake Bleed, Director of Communications
Department of Finance and Administration
Office of Administrative Services
1515 West 7th Street, Suite 700
Little Rock, AR 72201
Dear Mr. Bleed:
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 former employee, through a representative,
has requested a copy of her personnel file, all documents referencing the reason
for her termination, and all emails with any part of her name in it created in the
last year. You have attached to your request for my opinion one document that you
believe is responsive to the request, as redacted. You ask whether your decision
to release this document, as redacted, is consistent with the FOIA.
RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the
FOIA. You have provided me no information as to your decision regarding the
classification of the record. Having reviewed the record, however, it appears to be
what can be described as a "mixed record," that is, it constitutes either the
employee evaluation record of a former employee who has requested access to her
own records or that former employee's personnel record, but it also qualifies as
personnel records of other employees named therein. Even though an employee or
323 CENTER STREET. SUITE 200 · LITTLE ROCK. ARKANSAS 72201
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ARKANSASAG.GOV Jake Bleed, Director of Communications
Opinion No. 2017-034
Page 2
former employee has access to his or her own employee file under the FOIA, the
custodian must consider whether information about the other employees rises to
the level of protection under the test for the release of personnel records. It is not
immediately apparent from the face of the record in question that the redacted
portion of the record rises to that level. However, there may be facts and
circumstances of which I have not been made aware that could justify the
redaction you have made. I cannot act as a fact-finder in issuing opinions under
the FOIA, and I therefore cannot definitively opine on whether your decision to
redact certain information from the record is consistent with the FOIA.
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 state Department of Finance and Administration
(DF&A), 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
In my opinion, the document in question reflects the performance or lack of
1 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015). Jake Bleed, Director of Communications
Opinion No. 2017-034
Page 3
performance of official functions by both the employee creating or providing the
document and the former employee seeking the document. Therefore, in my
opinion, the document is a public record 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
be divided into two mutually exclusive groups: "personnel records"3 or "employee
evaluation or job performance records."4 The test for whether these two types of
documents may be released differs significantly.
When custodians assess whether either of these exceptions applies to a particular
record, they must make two determinations. First, they must determine whether
the record meets the definition of either exception. Second, assuming the record
does meet one of the definitions, the custodian must apply the appropriate test to
determine whether the FOIA requires that record be disclosed.
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
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-
Steele & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION ACT 205-06 (Arkansas
Law Press, 6th ed., 2017).
3 Ark. Code Ann. § 25-19-105(b )(12): "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 would constitute a clearly unwarranted invasion
of personal privacy."
4 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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." Jake Bleed, Director of Communications
Opinion No. 2017-034
Page 4
that "personnel records" are all records other than emploree 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. "6
While the FOIA does not define the phrase "clearly unwarranted invasion of
personal privacy," the Arkansas Supreme Court, in Young v. Rice,1 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
the scale tipped in favor of 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
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 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.11 The fact that
the subject of any such records may consider release of the records an unwarranted
5 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.
6 Ark. Code Ann. § 25-19-105(b)(12) (Supp. 2015).
7 308 Ark. 593, 826 S.W.2d 252 (1992).
8 Watkins, et al., at 208.
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). Jake Bleed, Director of Communications
Opinion No. 2017-034
Page 5
invasion of personal privacy 1s irrelevant to the analysis because the test 1s
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)(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
12 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., note 2 supra, at
207.
13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Jake Bleed, Director of Communications
Opinion No. 2017-034
Page 6
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.14 This exception includes records generated while investigating
allegations of employee misconduct that detail incidents that gave rise to an
allegation of misconduct.15
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).16
   As for the final prong, the FOIA never defines the key phrase "compelling public
   interest." But two leading commentators on the FOIA, referring to this office's
   opinions, have offered the following guidelines:
   [I]t seems that the following factors should be considered in
   determining whether a compelling public interest is present: ( 1) the
   nature of the infraction that led to suspension or termination, with
   particular concern as to whether violations of the public trust or
   gross incompetence are involved; (2) the existence of a public
   controversy related to the agency and its employees; and (3) the
   employee's position within the agency. In short, a general interest in
   the performance of public employees should not be considered
   compelling, because that concern, at least theoretically, always
   exists. However, a link between a given public controversy, an
   agency associated with the controversy in a specific way, and an
   14 Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067; 2008-
   004; 2007-225; 2006-038; 2005-030; 2003-0'73; 98-006; 97-222; 95-351; 94-306; and 93-055.
   15 Thomas, 212 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
   16 Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065. Jake Bleed, Director of Communications
   Opinion No. 2017-034
   Page 7
   employee within the agency who commits a serious breach of public
   trust should be sufficient to satisfy the "compelling public interest"
   requirement. 17
   These commentators also note that "the status of the employee" or "his rank
   within the bureaucratic hierarchy" may be relevant in determining whether a
   "compelling public interest" exists, 18 which is always a question of fact that must
   be determined, in the first instance, by the custodian after he considers all the
   relevant information.
   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.19
   III. Application.
   I have no information as to your decision, as the custodian of the record, regarding
   the classification of the record. Accordingly, I cannot opine as to whether your
   decision in that respect is consistent with the FOIA. But from what I can tell from
   the face of the record at issue, it appears to be what is best described as a "mixed
   record." A record is mixed when it can be classified as (1) more than one person's
   employee evaluation record, (2) more than one person's personnel record, or (3) at
   least one person's evaluation and at least one person's personnel record.20 But I
   lack sufficient facts regarding this matter, and I cannot determine from the four
   comers of the document which of the above types of mixed records applies in this
   case.
   Irrespective, however, the FOIA is clear that an employee or former employee has
   access to his or her own personnel or employee evaluation records.21 But in the
   17 Watkins, et al., note 2 supra, at 238-39 (footnotes omitted).
   18 Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when
   a high-level employee is involved than when the [records] of 'rank-and-file' workers are at
   issue.").
   19 Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
   2° Cf Ops. Att'y Gen. 2015-129, 2015-057.
   21 Ark. Code Ann. § 25-19-105(c)(2) (Supp. 2015). Jake Bleed, Director of Communications
   Opinion No. 2017-034
   Page 8
   case of a mixed record, the question may arise whether the requester of one's own
   file is entitled to another employee's complete, unredacted personnel record
   contained within that file. If disclosure of the unredacted personnel record would
   rise to the level of a clearly unwarranted invasion of the other employee's personal
   privacy, then redactions must be made.22
   From the face of the record before me, I cannot discern the nature of a clearly
   unwarranted invasion of personal privacy that would require the redaction you
   have made. The question whether the release of information from a personnel
   record would constitute a clearly unwarranted invasion of personal privacy is
   always a question of fact to be decided in the first instance by the custodian of the
   record. As the custodian, and armed with all of the facts and circumstances
   concerning this record, you must apply the Young v. Rice balancing test discussed
   above. As an initial matter, you must determine whether the information at issue
   gives rise to more than a de minimis privacy interest. If it does not, the
   information must be released. If it does, you must next determine whether a
   public interest in disclosure outweighs this privacy interest. In this regard, the
   Arkansas Supreme Court has indicated that the strength of the public interest is
   gauged by "the extent to which disclosure of the information sought would 'shed
   light on an agency's performance of its statutory duties' or otherwise let citizens
   know 'what their government is up to. "'23
   Because I lack sufficient facts beyond the face of the record to state whether the
   information, if released, would be a clearly unwarranted invasion of personal
   privac~-and because I cannot act as a fact-finder in issuing opinions under the
   FOIA 4-I also cannot definitively opine on whether your decision to redact the
   information at issue is consistent with the FOIA.
   Sincerely,
   LEsLI~E~
   Attorney General
   22 See Op. Att'y Gen. 2014-126 (opining that a portion of a record contained within a requester's
   own personnel file was also the personnel record of another employee and that certain
   information must be redacted under the personnel records test as being a clearly unwarranted
   invasion of personal privacy).
   23 Stilley, note 11 supra, 332 Ark. at 312, 965 S.W.2d at 127.
   24 Op. Att'y Gen. 2009-131.