Was the Arkansas Department of Human Services custodian's decision to release a redacted personnel file consistent with the Arkansas FOIA?

Plain-English summary

An FOIA requester asked to inspect Arkansas Department of Human Services attorney Gray Turner's personnel file. Turner, as the subject of the records, asked the Attorney General to review the custodian's decision to release a redacted copy. The custodian's attorney supplied the records to the AG.

Turner identified information he wanted withheld, including personal contact details, financial and medical information, Social Security and personnel numbers, adoption material, child-welfare records, and information whose release would be a clearly unwarranted invasion of privacy. The AG examined the records and concluded that the custodian's redactions were proper. The items Turner identified were either already redacted or absent from the records slated for release. The AG said no additional redactions were needed.

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.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed a custodian, requester, or record subject to seek an AG opinion on a decision to release personnel or employee-evaluation records. The AG described three questions for disclosure: whether the request went to an entity subject to FOIA, whether the documents were public records, and whether an exception allowed withholding.

The AG found that the DHS documents were public records. For personnel records, the opinion applied a privacy balance: disclosure is favored unless it would cause a clearly unwarranted invasion of personal privacy. For employee-evaluation or job-performance records, the opinion identified separate conditions involving discipline, finality, the records' role in the decision, and compelling public interest.

Common questions

Q: Who asked the AG to review the DHS personnel-file release? Gray Turner did. He was the employee whose file had been requested. The custodian's attorney supplied a redacted copy for the AG's review.

Q: Did the AG require DHS to redact more information? No. After examining the supplied records, the AG found the existing redactions proper and said no further redactions were required.

Q: Did the AG say adoption or child-welfare records were in the file? No. The opinion says Turner's identified items were either properly redacted or not included in the records to be released; it does not assign each category to one of those outcomes.

Q: Did the AG approve release of the entire unredacted file? No. The opinion approved the custodian's decision to release the records as redacted.

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTO RN EY G EN ERAL
LESLI E RUT LEDGE

Opinion No. 2017-089

August 4, 2017

Gray A. Turner, Attorney
DHS Office of Chief Counsel
c/o Cristy Park, Privacy Office
Donaghey Plaza South
P.O. Box 1437, Slot S260
Little Rock, AR 72203-1437

Dear Mr. Turner:

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 asked to review your personnel file under the FOIA. The attorney for the custodian of records has provided a redacted copy of your personnel fil e, which the custodian has determined is subject to release under the FOIA. Your request for my opinion asks that only those records required to be released by state law be made public, and you specifically request that the following records and information be excluded:
a. Personal contact information; b. Any financial or state tax records ; c. Any medical records; d. Any social security numbers; e. Any records with an employee personnel number; f. Any adoption records or emails related to an adoption ;

323 CE NTER STREET. SU ITE 200 · LITTLE ROCK. ARKAN SAS 7220 1 TELEP H ONE (501) 682-2007 · FAX (50 1) 682-8084 ARKAN SASAG.GOV
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Opinion No. 2017-089
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g. Any records concerning a child welfare investigation or the delivery of child welfare services as per Ark. Code Ann.§ 12-18-104. h. Any records that "constitute a clearly unwarranted invasion of personal privacy," as per Ark. Code Ann.§ 25-19-105(b)(12).

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 to release the records as redacted is consistent with the FOIA. I will set out all the definitions and standards and then apply them to the records 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, there must be no exceptions allowing 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 Arkansas Department of Human Services Office of Chief Counsel, 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

1
Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2015).
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All the attached documents clearly qualify as public records under this definition. 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 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 that "personnel records" are all records other than employee evaluation and job 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)(I): "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." Gray A. Turner, Att'y Opinion No. 2017-089 Page 4

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 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. I I 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, Peltz-Steele & Steinbuch at 202.
6
Ark. Code Ann.§ 25-19-105(b)(l2) (Supp. 2015).
7
308 Ark. 593, 826 S.W.2d 252 (1992).
8
Watkins, Peltz-Steele & Steinbuch, note 2 supra, 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).
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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)(13));

• Employee personnel number (Ops. Att'y Gen. 2014-094; 2007-070);
• 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).

12
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, Peltz-Steele & Steinbuch, note 2 supra, at 207. 13 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.
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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 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

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; 2003-073; 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.
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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 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.

Applying the foregoing principles and standards to the attached records, I conclude that the records are subject to disclosure, as redacted. The redactions made by the custodian are proper, in my opinion. 20 And it is my opinion that no further redactions to these records are required. With regard to your request that certain specific records and information be withheld from disclosure, my review indicates that the items you identify either have been properly redacted by the custodian or are not included in the records to be released.

17
Watkins, Peltz-Steele & Steinbuch, 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, Peltz-Steele & Steinbuch at 223.
20
See above list of items that must be redacted and authority for the redactions.
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In sum, the decision of the custodian to release the records as redacted is consistent with the FOIA, in my opinion.

Sincerely,

cF=:>~
LESLIE R~;~~
Attorney General