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

Plain-English summary

DHS attorney Gray Turner submitted a FOIA review request asking the AG to confirm whether his office's planned release of an employee's redacted personnel file was consistent with FOIA. The employee had asked DHS to withhold or redact eight specific categories:

1. Personal contact information
2. Financial or state tax records
3. Medical records
4. Social Security numbers
5. Records with an employee personnel number
6. Adoption records or emails related to an adoption
7. Records concerning child welfare investigations or services (per Ark. Code Ann. § 12-18-104)
8. Records that "constitute a clearly unwarranted invasion of personal privacy" (per § 25-19-105(b)(12))

The AG reviewed the actual records (something the AG could not do in Opinion 2017-099 about LRPD incentive pay because that custodian had not provided the records). The AG concluded the custodian's redactions were proper and no further changes were required. The specific items the employee identified had either been redacted already or were not in the file.

Critically, the AG noted: "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."

This is a clean approval. Compared to Opinion 2017-085 (Brown / ACC), where the AG found additional redactions were needed and several entire records were exempt, Turner's submission was complete on the first pass.

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

The FOIA framework is the same as in the parallel opinions of this period (2017-085, 2017-099). Three threshold elements: public entity, public record, no exception forecloses release. Two key exceptions: personnel records (open with redactions, balancing under Young v. Rice) and employee evaluation records (closed unless suspension/termination, finality, basis, and compelling public interest).

The standard list of mandatory redactions (personal contact, employee personnel number, marital status, dates of birth, SSNs, medical info, undercover-officer identifiers, driver's license numbers, insurance, tax info, payroll deductions, banking) appears in this opinion as in the parallel ones.

The child-welfare confidentiality statute. Ark. Code Ann. § 12-18-104 makes child-welfare investigation records confidential. The employee here referenced that statute in asking that any such records be withheld. The AG's review confirmed either redaction or absence of those records.

Adoption records. While not specifically codified in § 25-19-105, adoption records are generally subject to specialized confidentiality rules under separate Arkansas adoption law. The employee referenced these in the redaction list.

The AG's reasoning

The opinion is unusually clean in form because the substantive analysis was straightforward. The AG laid out the standard framework, then applied it. The key finding came in two short paragraphs in the application section:

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. 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.

In sum, the decision of the custodian to release the records as redacted is consistent with the FOIA, in my opinion.

The substantive efficiency reflects two things:

1. The DHS Office of Chief Counsel knew the FOIA framework and applied it correctly before submitting. The AG had nothing to add.
2. Some categories the employee asked about (notably child-welfare and adoption records) were either already redacted or simply absent from the file. The AG's review confirmed both.

Compared to Opinion 2017-085 (where ACC's custodian missed multiple redactions and overlooked entirely-exempt records), this opinion shows what a fully prepared custodian-side submission looks like.

Common questions

Why did the AG review the actual records here but not in Opinion 2017-099?
Because the DHS custodian provided the records to the AG's office. In 2017-099 (LRPD incentive pay), the custodian had not. The AG cannot do an itemized review without seeing the underlying documents. Custodians submitting FOIA review requests are well-advised to send the records.

What is the difference between a "redaction" and a "withholding"?
A redaction blacks out specific information within an otherwise-disclosable document. A withholding removes the entire document from the production. Both are legitimate FOIA tools, but they apply in different situations: redactions for documents that pass the disclosure test as a whole but contain protected snippets, withholdings for documents that are entirely exempt.

Why did the employee specifically reference § 12-18-104?
Section 12-18-104 makes records held by the Department of Human Services about child welfare investigations and services confidential. If the employee had been involved in a child-welfare matter (as a parent, foster parent, professional, or otherwise), records reflecting that contact would be specially protected. The employee was reminding DHS to scrub any such references before release.

Could the requester challenge the custodian's redactions in court?
Yes. Section 25-19-107 gives a requester the right to file a circuit court action to compel disclosure. The AG's opinion is persuasive but not binding. A court would do its own Young v. Rice balancing.

Does this opinion mean DHS got it right and ACC got it wrong?
The opinions do not directly compare. DHS's redactions were proper for the file at issue; ACC's needed corrections for theirs. Each agency's situation differs. The takeaway is process: a careful pre-submission review reduces the risk of an opinion sending the custodian back to the drawing board.

Source

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

Original opinion text

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 file, 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;
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.

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. 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." 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 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. 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));
• 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).

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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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 employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" requirement.

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, 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.

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. 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.

In sum, the decision of the custodian to release the records as redacted is consistent with the FOIA, in my opinion.

Sincerely,

LESLIE RUTLEDGE
Attorney General