Could a Little Rock employee learn what the city would release from his FOIA'd personnel file?

Plain-English summary

Frederick Gentry, a City of Little Rock employee, found out that someone had filed a FOIA request for his personnel file. The custodian (the city's HR specialist) had decided the file was "releasable." Gentry was concerned that the file might contain personal medical information that should be redacted, and he asked the AG to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG declined to give a record-specific answer. The custodian had said the file was releasable, but had not submitted the actual records to the AG. Without seeing the documents, the AG could not say whether any particular record had to be released, withheld, or redacted. The AG's response explains the FOIA framework that the custodian had to apply, but it cannot stand in for an actual document review.

That framework is well-settled at this point. The custodian had to:

1. Confirm the request went to a public entity (yes, the City of Little Rock).
2. Confirm the records were public records under § 25-19-103(7)(A). Records held by a public entity are presumptively public, although that presumption is rebuttable.
3. Apply any applicable exemption.

The two key exemptions are personnel records under § 25-19-105(b)(12) and evaluation records under § 25-19-105(c)(1). Personnel records are open unless disclosure would constitute a "clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test. Evaluation records are closed unless all four conditions are met (suspension or termination, finality, basis for the discipline, compelling public interest).

For Gentry's specific concern about medical information, the AG pointed to the long-standing list of mandatory redactions: medical information must be redacted whether or not the underlying document is otherwise releasable. So even if the custodian properly decided the personnel file was releasable, medical information within it would have to come out before release.

The opinion's broader value is as a refresher on the analytical structure custodians have to follow when they receive a personnel-file request. Get the classifications right, then apply the right test, then pull mandatory redactions before release.

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 review process in § 25-19-105(c)(3)(B)(i) lets a custodian, requester, or subject of personnel/evaluation records seek an AG opinion on whether the custodian's release decision is consistent with FOIA. The AG's role is advisory; the resulting opinion does not bind the parties, but it carries practical weight.

For meaningful review, the AG generally needs the records themselves. Without them, the office can describe the framework but not apply it.

Standard categories of mandatory redactions from personnel records (drawn from prior AG opinions and statutes):

• Personal contact information of public employees: home address, personal phone, personal email (§ 25-19-105(b)(13)).
• Employee personnel number (Ops. Att'y Gen. 2014-094, 2007-070).
• Marital status and dependents (Op. 2001-080).
• Date of birth (Op. 2007-064).
• Social Security number (Ops. 2006-035, 2003-153).
• Medical information (Op. 2003-153).
• Undercover law enforcement officer identifying information (§ 25-19-105(b)(10)).
• Driver's license numbers (Op. 2007-025).
• Insurance coverage (Op. 2004-167).
• Tax information and withholding (Ops. 2005-194, 2003-385).
• Payroll deductions (Op. 98-126).
• Banking information (Op. 2005-194).

These redactions apply even when the underlying document is otherwise releasable. They're discrete data points, not entire documents.

Common questions

Why didn't the AG say which specific items in Gentry's file would be released?
Because the custodian didn't send the actual records. The AG can apply the FOIA framework, but document-specific calls require document review.

What about Gentry's medical information?
Medical information has to be redacted from any released document. So even if the personnel file was properly classified as releasable, medical info would come out.

What test would the custodian apply to the file as a whole?
The personnel-records test under Young v. Rice: is the privacy interest more than de minimis, and if so, is it outweighed by the public's interest in disclosure? The burden of resisting disclosure is on the person asserting privacy. The presumption tilts toward disclosure.

Could parts of the file be evaluation records subject to a different test?
Yes. Performance reviews and disciplinary records are typically evaluation records and follow the four-condition test. Other personnel-file items (employment application, transfer records, training certificates) are personnel records.

What's the AG-review process for?
It's a non-binding pre-release check. Custodians use it to get a read on close calls. Subjects of records use it to flag concerns before release. Requesters use it to challenge denials.

Source

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

Original opinion text

Opinion No. 2017-111
October 12, 2017
Frederick Gentry
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
c/o Sandy R. Edgar, Human Resources Specialist
City of Little Rock Human Resources Department
500 W. Markham, Suite 130W
Little Rock, AR 72201-1428
Dear Mr. Gentry:

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 FOIA request has been made to the City of Little Rock for a copy of your personnel file. The custodian of records has determined that the requested file is a personnel record that is releasable under the FOIA. Your request states that you "would like to know what information will be released," and that "part of [your] file may contain personal medical information" that you believe should be redacted prior to release. You ask whether the custodian's release decision is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. While your letter includes the custodian's recitation of its determination that your personnel file is "releasable," nothing in your letter indicates the particular records, if any, the custodian has decided release. Not having seen any of the records the custodian intends to release, I cannot definitively opine as to the custodian's decision with regard to any specific records or redactions that might have to be made. I can only set out the legal standards the custodian must apply to determine whether certain documents typically contained in an employee's personnel file must be disclosed.

[Standard FOIA framework discussion preserved in original opinion: general standards governing disclosure, the personnel-records and employee-evaluation exceptions, the Young v. Rice balancing test, the Thomas v. Hall definition of evaluation records, the four-condition test for releasing evaluation records, and the standard list of items that must be redacted including medical information.]

Sincerely,

LESLIE RUTLEDGE
Attorney General