Can an Arkansas state agency release a former employee's resignation letter under FOIA, even when the employee says the requester is harassing them?

Plain-English summary

A former employee of the Arkansas Department of Workforce Services (DWS) asked the AG to review whether DWS's custodian of records was right to release the employee's resignation notice in response to an Arkansas FOIA request. The employee told the AG that the requester was harassing him.

In July 2017, AG Leslie Rutledge concluded the custodian had acted correctly. The two documents at issue were fill-in-the-blank resignation forms, an original notice and an amended version. The AG ran the standard FOIA analysis: the documents were held by DWS (a public entity); they qualified as "public records" under Ark. Code Ann. § 25-19-103(7)(A); and they were "personnel records" under § 25-19-105(b)(12) rather than employee-evaluation records.

Personnel records are disclosable unless release would be a "clearly unwarranted invasion of personal privacy." Applying the Young v. Rice balancing test, the AG found that the privacy interest in a fill-in-the-blank resignation form was at most de minimis. There was no privacy concern in checked boxes and a date. And the AG specifically rejected the "harassment exception" the employee was effectively asking him to recognize: prior AG opinions had held there is no such exception, the test is objective, and the requester's motives are irrelevant.

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: Are resignation letters public under Arkansas FOIA?
A: Generally yes, the AG said. Prior AG opinions had consistently treated resignation letters as "personnel records" under Ark. Code Ann. § 25-19-105(b)(12). Personnel records are disclosable unless release would be a clearly unwarranted invasion of personal privacy. A standard resignation notice (effective date, reason for leaving, signature) does not normally rise to that level. The AG cited a long string of prior opinions (2013-016, 2006-082, 2002-006, 2001-276, and others) all reaching the same conclusion.

Q: How is the "clearly unwarranted invasion" standard applied?
A: Through the two-step Young v. Rice balancing test. First, is the privacy interest in the information greater than de minimis? If not, the document is released. Second, if it is greater than de minimis, the custodian weighs the privacy interest against the public interest in disclosure, with "the scale tipped in favor of disclosure" (the burden falls on whoever wants to keep it secret).

Q: Does it matter that the requester is allegedly harassing the subject?
A: No, per the opinion. The AG was emphatic: there is no generalized "harassment exception" to FOIA, citing Op. Att'y Gen. 2015-011. The Young v. Rice test is objective. The custodian must look at the document's content and the public's interest, not the requester's apparent motives or the subject's discomfort.

Q: Does it matter that the subject does not want the records released?
A: No. The AG noted that "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." Subjective objection does not change the disclosure result.

Q: Were any redactions required even though the documents were public?
A: The AG flagged the categories of information that must be redacted from otherwise-disclosable personnel records, including personal contact information of public employees (Ark. Code Ann. § 25-19-105(b)(13)), marital status and information about dependents, dates of birth, social security numbers, medical information, driver's license numbers, insurance coverage, tax/withholding information, payroll deductions, and banking information. So even when a record is "open," the custodian must scrub these fields before release.

Q: How is "personnel records" different from "employee evaluation or job performance records"?
A: Resignation letters fall into the personnel records bucket (§ 25-19-105(b)(12)) and use the Young v. Rice privacy-balancing test. Evaluation records are governed by a different statute (§ 25-19-105(c)(1)), which makes them disclosable only on final administrative resolution of a suspension or termination proceeding "at which the records form a basis for the decision," and only when there is a "compelling public interest in their disclosure." The two categories are mutually exclusive and the analysis is different. The AG limited his discussion to personnel records here because that is what the documents were.

Background and statutory framework

Arkansas's FOIA, Ark. Code Ann. § 25-19-101 et seq., is built on a presumption that records held by public agencies are open. Section 25-19-103(7)(A) defines "public record" broadly as "writings, 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" by public officials, employees, or agencies. The presumption is reinforced by the closing sentence of that subsection: "All records maintained in public offices or by public employees within the scope of their employment shall be presumed to be public records."

The personnel-records exemption in § 25-19-105(b)(12) is narrow and triggered only by a "clearly unwarranted invasion of personal privacy." The Arkansas Supreme Court refined that standard in Young v. Rice, 308 Ark. 593 (1992), and the office of the AG operationalized the test in dozens of subsequent opinions. The standard pattern: the AG identifies whether the document is a personnel or evaluation record, recites the Young v. Rice two-step test, runs the balance, and tells the custodian whether their decision is consistent with the FOIA.

Section 25-19-105(c)(3)(B)(i) is the procedural hook that lets the custodian, the requester, or the subject ask the AG for a written opinion. It is a fast lane for resolving close calls, but as this opinion shows, it does not give the subject a veto over disclosure or a way to inject the requester's motives into the analysis.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-105(b)(12), personnel-records exemption
• Ark. Code Ann. § 25-19-105(c)(1), employee evaluation/job performance records
• Ark. Code Ann. § 25-19-105(b)(13), personal contact information redaction
• Ark. Code Ann. § 25-19-103(7)(A), definition of "public record"
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i), AG opinion on custodian's decision

Cases:

• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), two-step balancing test for personnel-records disclosure
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998), party resisting disclosure bears burden of proof

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-079
July 6, 2017

Mr. Glenn Sergeant
c/o Phyllis A. Edwards, Associate General Counsel
Arkansas Department of Workforce Services
[address redacted]
Little Rock, AR

Dear Mr. Sergeant:

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 statute 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 documents relating to your termination or resignation from the Arkansas Department of Workforce Services under the FOIA. You have attached two documents that the custodian of records has identified as responsive to the request. Furthermore, the custodian has determined that the documents are not exempt from disclosure and must be released to the individual requesting these records. You state that the person who has made the FOIA request is harassing you, and you ask whether the custodian's decision to release these records is consistent with the FOIA.

Response

As stated above, my statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records at issue, it is my opinion that the custodian has properly classified the records as your personnel records and has correctly determined that they must be released in response to the FOIA request. I will set out the relevant definitions and standards and 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 are met in this case. As for the first element, the documents are held by the Arkansas Department of Workforce Services (DWS), a state agency, which is clearly 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.

As I understand it, you created the attached documents as your notice of resignation from DWS (an original notice and an amended version of even date to change your reason for leaving). Accordingly, these documents reflect your performance or lack of performance of an official function. Therefore, in my opinion, these documents are public records and must be disclosed unless some specific exemption to disclosure provides otherwise.

II. Exceptions 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." With respect to resignation letters, this office has consistently opined that such records generally constitute "personnel records" within the meaning of the FOIA. Therefore, I will limit my discussion to the exemption for personnel records.

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, 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.

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.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. This office has previously opined, however, that a statement merely detailing the employee's intent to cease employment on a certain date and listing the justifications for taking such action, without more, does not implicate the privacy concerns reflected in Ark. Code Ann. § 25-19-105(b)(12). Unless a letter of resignation contains statements that are of a particularly personal nature, the letter's release generally will not constitute a clearly unwarranted invasion of personal privacy so as to be exempt from disclosure.

Additionally, 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. This office has also previously noted that there is no generalized "harassment exception" to the release of otherwise disclosable personnel records.

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);
• 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);
• Banking information (Op. Att'y Gen. 2005-194).

III. Application.

The records presented to me appear to be little more than "fill-in-the-blank" form notices where an employee simply writes in his name, the effective date of his resignation, checks a box to indicate the reason for his resignation, and signs his name and dates the form. The form also contains space for the employee to add suggestions or to make additional comments.

Based on the face of the records, they clearly constitute personnel records under the definition formulated by this office. It is also clear from the face of the records that the information contained therein does not rise to the level of a clearly unwarranted invasion of personal privacy under the judicial test described above. Additionally, while you assert that the requester of the records has a crusade against you, there is no generalized "harassment exception" to the release of personnel records that are otherwise subject to disclosure.

In conclusion, therefore, it is my opinion that the custodian has properly classified the attached documents as personnel records. Furthermore, the records do not appear to contain information of such a personal nature that would prohibit their disclosure. The custodian's decision to release the records is thus consistent with the FOIA, in my opinion.

Sincerely,

Leslie Rutledge
Attorney General