Can a Jefferson County agency withhold a former employee's salary, termination letters, and personnel file from a FOIA request?

Plain-English summary

Jefferson County Judge Hank Wilkins, acting as the records custodian for the Jefferson County Metropolitan Emergency Communications Association (MECA), received a FOIA request for records about a former MECA employee: two termination letters, a letter from the employee to the MECA Board, salary confirmation, the personnel file, and "all records relating to the former employee's termination." The custodian decided to withhold the records and asked the AG whether that decision was consistent with FOIA.

Attorney General Leslie Rutledge could not give a definitive yes-or-no without reviewing the actual records, which had not been provided. She instead laid out the framework the custodian had to apply.

On salary: the AG's office has consistently held that a public employee's annual salary is a personnel record but its release does not constitute a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. Salary must be released.

On termination letters: the classification depends on content. A letter that gives the reasons for the termination is an "employee evaluation or job performance record," subject to four cumulative requirements before release: (1) suspension or termination occurred, (2) the proceeding is finally resolved, (3) the records were the basis for the decision, and (4) there is a compelling public interest in disclosure. A letter that merely states the fact of termination without explanation is a personnel record, subject to the Young v. Rice balancing test that tilts toward disclosure.

On the rest of the personnel file and the employee's letter to the Board: the AG could only describe the legal standards. She said the custodian must apply the definitions and tests to each specific record, including rules for redacting protected information within otherwise disclosable documents.

The AG gave a firm conclusion about salary disclosure. Without the requested documents or the custodian's factual determinations, she could not definitively assess the rest of his decision.

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 did the AG decide about the former employee's salary? A: She said public-employee salary is evaluated under the personnel-records test and releasing it would not be a clearly unwarranted invasion of personal privacy. No facts supplied to her changed that conclusion, so the salary information had to be released.

Q: What is the difference between a "personnel record" and an "employee evaluation record"? A: A personnel record is anything in the personnel file that is not an evaluation. An employee evaluation or job performance record is, per Thomas v. Hall (2012), one (1) created by or at the behest of the employer (2) to evaluate the employee (3) detailing performance or lack of performance on the job. The categories are mutually exclusive and the release tests differ significantly.

Q: How does a termination letter fit?
A: A letter giving the reasons for termination is an employee evaluation record. A letter merely reporting the fact of termination, without elaboration, is a personnel record. The AG had not seen these letters, so she could not classify them or decide whether to release them.

Q: What is "compelling public interest" for evaluation records? A: The opinion quotes commentators who suggest considering the infraction, a related public controversy, and the employee's position. They say a general interest in employee performance is insufficient and give a serious breach of public trust linked to a controversy as an example that could satisfy the test. The custodian must decide from the relevant facts.

Q: What information always has to be redacted, even from records that are otherwise released? A: The opinion lists ten categories: personal contact information of public employees (personal phones, personal email, home addresses), marital status and dependent information, dates of birth, social security numbers, medical information, undercover law enforcement identifying information, driver's license numbers, insurance coverage, tax/withholding information, payroll deductions, and banking information. These come from a mix of statutes and AG opinion lines.

Q: Who can ask for an AG opinion under § 25-19-105(c)(3)(B)(i)? A: The custodian, the requester, or the subject of the records. All three have standing to ask whether the custodian's release decision is consistent with FOIA.

Q: Why couldn't the AG just answer yes or no here? A: Because the AG's office had not been sent copies of the records and could not see the surrounding facts. The classification (personnel vs. evaluation) and the application of the balancing tests both depend on record content. Without the records, the AG could only describe the law; the custodian had to apply it.

Background and statutory framework

Arkansas FOIA presumes records are public unless an exemption applies (Ark. Code Ann. § 25-19-103(7)(A)). The two personnel-related exemptions, §§ 25-19-105(b)(12) and 25-19-105(c)(1), are narrow on their face and have been narrowed further by the Arkansas Supreme Court's Young v. Rice decision, which adopted a balancing test that tilts toward disclosure. Stilley v. McBride (1998) added that the public-interest measure is whether disclosure shows "what their government is up to." Thomas v. Hall (2012) defined the scope of "employee evaluation or job performance records."

All four conditions for releasing employee evaluation records must be met. The quoted commentators suggest that an employee's rank may matter to the compelling-public-interest question, which the custodian must decide from the facts. The AG made no determination about the records requested here.

Under § 25-19-105(c)(3)(B)(i), the custodian, requester, or records subject may seek an AG opinion on a release decision. Here, missing records and factual determinations prevented a definitive opinion apart from the salary issue.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public record)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law enforcement exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (right to seek AG opinion)

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (Ark. Supreme Court, two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (Ark. Supreme Court, public-interest measure)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (Ark. Supreme Court, definition of evaluation records)

Treatise:

• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act (Ark. Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2017-038
March 23, 2017
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
The Honorable Henry "Hank" Wilkins, IV
Jefferson County Judge
101 West Barraque Street
Pine Bluff, AR 71601
Dear Judge Wilkins:
You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, made as the custodian of the records, 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 the Jefferson County Metropolitan Emergency Communications Association (MECA) has received a FOIA request for access to two termination letters addressed to a former MECA employee, a letter to the MECA Board members from the former MECA employee, confirmation of the former employee's salary, a copy of the former employee's personnel file, as well as copies of all records relating to the former employee's termination. You have determined that the requested records are exempt from disclosure. You ask whether your decision is consistent with the FOIA. RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not been provided with copies of the records at issue or any factual determinations that went into your analysis of the records, I cannot definitively opine regarding whether any specific document should or should not be released. With respect to the decision to withhold disclosure of the former employee's annual salary, this office has consistently opined that such information 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV The Honorable Henry Wilkins, IV Jefferson County Judge Opinion No. 2017-038 Page 2 does not rise to the level of a "clearly unwarranted invasion of personal privacy" under the test for disclosure of personnel records and must be released. Additionally, this office has stated that letters of termination that give the reasons for termination are employee evaluation records and must be judged· under the applicable test. But if the letters reflect the mere fact of termination, they must be evaluated under the test for disclosure as personnel records. As to the other records that have been requested, however, I am limited to discussing the legal standards you must apply to the specific types of documents at issue. 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 to be met in this case. As to the first element, the documents are held by the Jefferson County MECA, 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 The custodian has presumably determined that all of the requested records meet this definition. Not having reviewed the records, I am unable to fully assess that determination. I can comfortably opine that most records contained in personnel files are "public records," as are other job-related records of the sort requested in this instance. If, in fact, those records are determined to be "public records" as 1 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015). The Honorable Henry Wilkins, IV Jefferson County Judge Opinion No. 2017-038 Page 3 defined above, then they-along with the other records-must be disclosed unless a specific exemption provides otherwise.2 II. Exceptions to disclosure. Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files.3 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records"4 or "employee evaluation or job performance records."5 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 Op. Att'y Gen. 2016-018. 3 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). 4 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." 5 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." The Honorable Henry Wilkins, N Jefferson County Judge Opinion No. 2017-038 Page 4 that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees.6 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."7 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,8 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. 9 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. Io 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. I I 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. I2 The fact that the subject of any such records may consider release of the records an unwarranted 6 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. 7 Ark. Code Ann.§ 25-19-105(b)(12) (Supp. 2015). 8 308 Ark. 593, 826 S.W.2d 252 (1992). 9 Watkins, et al., note 3 supra, at 208. 10 Young, 308 Ark. at 598, 826 S.W.2d at 255. 11 Id., 826 S.W.2d at 255. 12 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). The Honorable Henry Wilkins, N Jefferson County Judge Opinion No. 2017-038 Page 5 invasion of personal pnvacy is irrelevant to the analysis because the test is objective.13 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.14 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-l 9-105(b )(1 O));
• 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, 2003-3 85);
• 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 13 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. 14 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. The Honorable Henry Wilkins, IV Jefferson County Judge Opinion No. 2017-038 Page 6 records (I) 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.15 This exemption includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.16 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).17
   As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the 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 15 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; 2003-073; 98-006; 97-222; 95-351; 94-306; and 93-055. 16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93. 17 Ark. Code Ann.§ 25-19-105(c)(l) (Supp. 2015); Op. Att'y Gen. 2008-065. The Honorable Henry Wilkins, N Jefferson County Judge Opinion No. 2017-038 Page 7 employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement. 18 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.19 This 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.20 III. Application. With respect to the request for the former employee's salary information, this office has consistently opined that the release of a public employee's salary is to be evaluated under the test applicable to personnel records, and that such disclosure would not constitute a "clearly unwarranted invasion of personal privacy" based on this test.21 I have not been made aware of any facts in this matter that would alter that conclusion. With regard to letters of termination, this office has opined that such a letter constitutes an employee evaluation record if it contains the reasons for the termination.22 But if the letter merely reflects, without elaboration, the fact of an employee's termination, this office has maintained that such a letter is properly 18 Watkins, et al., note 3 supra, at 238-39 (footnotes omitted). 19 Id. at 23 7 (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."). 2° Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223. 21 Cf Ops. Att'y Gen. 2015-016, 2012-014. 22 Cf Op. Att'y Gen. 2013-055 (and opinions cited therein). The Honorable Henry Wilkins, N Jefferson County Judge Opinion No. 2017-038 Page 8 classified as a personnel record.23 Not having seen the letters at issue in this case, I cannot opine further in this regard. In conclusion, because I have not reviewed the actual records in question or been sufficiently apprised of the surrounding facts, I cannot render a definitive opinion regarding your release decision. I am instead limited to explaining the law governing release of the general types of records that have been requested in this instance. As the custodian of the records, you must apply these definitions and the applicable tests to each specific record to determine whether the FOIA requires its public disclosure. Sincerely,
   ~- ,._. /~"fa
   LESLIE RUTLEDGE
   Attorney General
   23 Id