Did the City of Rogers properly classify and redact a former police employee's personnel file under the Arkansas FOIA?

Plain-English summary

A City of Rogers attorney asked the Arkansas Attorney General to review the city's plan for records concerning a former police-department employee. The AG found the city's decisions mostly consistent with the FOIA, but identified classification and redaction errors in the exhibits she reviewed.

Exhibits B through D appeared to be police incident reports. The AG said they were public records disclosable in their entirety; classifying them as personnel records and redacting parts was inconsistent with the FOIA. Exhibit S was a resignation letter, which the AG classified as a personnel record rather than an employee-evaluation record. She found nothing in it that would make release a clearly unwarranted invasion of privacy, so it should be disclosed.

The AG also required an additional redaction in the “Additional Information” box on Exhibit G. She noted that the former employee's personnel number remained visible throughout the materials and left the custodian to weigh whether it should be redacted given how long the employee had been separated from the city. The opinion did not name any redactions to the incident reports.

Currency note

This January 2018 opinion concerns the exhibits submitted for this request. Check current Arkansas FOIA provisions and the particular records before applying its conclusions elsewhere.

Background and statutory framework

The FOIA generally permits access to public records, subject to applicable exemptions. Personnel records are evaluated for a clearly unwarranted invasion of personal privacy. Employee-evaluation and job-performance records have a different release test tied to final suspension or termination proceedings and compelling public interest. The category of each document therefore matters.

For Exhibit A, the AG agreed with treating personnel-management screen captures as personnel records and releasing them. She did not review every extensive redaction in those records because the employee's objection concerned release of the records as a whole. Exhibit K was not submitted, so she did not assess it.

For Exhibits B–D, the AG relied on the treatment of incident reports in Hengel v. City of Pine Bluff. She expressly called for disclosure in full. For Exhibit S, she applied the personnel-record privacy test and found the resignation letter disclosable. For Exhibit G, the additional information in a specified box on the first page needed redaction.

Common questions

Can Rogers redact the incident reports in Exhibits B–D as personnel records?

The AG said no. They appeared to be incident reports and, on the records before her, were public records subject to disclosure in their entirety.

Should the resignation letter be withheld as an employee evaluation?

No. The AG treated Exhibit S as a personnel record. She found no clearly unwarranted invasion of privacy from its release and said it should be disclosed.

Did the AG decide whether the former employee's personnel number had to be removed?

She left that decision to the custodian, noting both earlier advice favoring redaction of personnel numbers and the employee's long separation from the city.

Did the AG review every exhibit and every redaction?

No. She focused on exhibits needing additional redaction or corrected classification, did not assess unsubmitted Exhibit K, and did not focus on the extensive redactions in Exhibit A.

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTO RNEY GEN ERAL
LE SLI E RUTLED GE

Opinion No. 2018-008

January 30, 2018

Jennifer A. Waymack, Senior Staff Attorney
Rogers Legal Department
301 West Chestnut Street
Rogers, AR 72756

Dear Ms. Waymack:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request, which is made as the custodian's attorney, is based on Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017). 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 requested "the employment file and other employment related documents concerning a former employee." You state that the subject of the records has expressed the view that he has a substantial privacy interest in the records and that there is no compelling pubic interest in their disclosure. You have attached both redacted and unredacted copies of the records you believe are responsive to the request, and have included a list indicating the custodian's characterization of each record deemed responsive. You ask whether the custodian's decisions with respect to the documents are consistent with the FOIA.

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 most of the records have been properly classified as either personnel records or employee evaluation records, although some records appear from their face to have been misclassified.

323 CENTER STREET. SU ITE 200 · LI TTLE RO C K. A RKAN SAS 7220 I TELE PH ONE (501) 682-2007 ·FAX (50 1) 682-8084 ARKANSASAG.GOV

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 2

Furthermore, it is my opinion that decisions to disclose or withhold the records are mostly, but not entirely, correct. Finally, the custodian has made numerous redactions to records that are to be disclosed. It is my understanding that the subject of the records objects to their release entirely, and not based on the propriety or impropriety of the redactions that have been made. Therefore, my focus in this regard will be on determining whether additional redactions are necessary or whether records have been incorrectly classified. I will set out all the definitions and standards and then 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 appear met in this case. As for the first element, the documents are held by the City of Rogers ("the City"), 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

From the face of the records, they appear to have been created or collected during the former employee's employment with the City. Accordingly, in my opinion, the documents reflect the performance or lack of performance of an official function of the former employee. Therefore, in my opinion, these documents are

1
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 3

public records and must be disclosed unless a 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 With respect to resignation letters, this office has consistently opined that such records generally constitute "personnel records" within the meaning of the FOIA. 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.

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)(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." 5 Op. Att'y Gen. 2017-079 (citing Ops. Att'y Gen. 2013-016, 2006-082, 2002-006, 2001-276, 99- 147, 99-119, 98-122, 95-162, and 88-147).

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 4

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. 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. 10 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. 11 Because the exceptions must be narrowly construed, the

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. 2017).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
9
Watkins, et al., at 208.
10
Young, 308 Ark. at 598, 826 S.W.2d at 255.
11
Id., 826 S.W.2d at255.

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 5

person resisting disclosure bears the burden of showing that, under the circumstances, his privacy interests outweigh the public's interests. 12 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. 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)(l3));

• 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 )(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, 2003-385);
• Payroll deductions (Op. Att'y Gen. 98-126); and • Banking information (Op. Att'y Gen. 2005-194).

12
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
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.

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 6

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. 15 This exception 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 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

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); Op. Att'y Gen. 2008-065.

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 7

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. 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 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. 20

III. Application.
21
You have sent the records for my review labeled as Exhibits A through T, with some of these exhibits containing multiple pages. As stated above, I will only address the exhibits where additional redactions must be made or where the records were improperly classified.

• Exhibit A: These records appear to be screen captures from the Rogers Police Department's personnel management software of information windows regarding the former employee. In my opinion, the custodian's decision to classify and release these records as personnel records is consistent with the FOIA.

18
Watkins, et al., at 238-39 (footnotes omitted).
19
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."). 2
°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
21
Exhibit K was not submitted for my review, so I am unable to assess the custodian's decisions with respect to that record.

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 8

I note, however, that numerous and extensive redactions were made to the records in Exhibit A. You stated that the subject of the records objected to the records' release in their entirety based on privacy grounds, and not on grounds that any redactions made were improper or insufficient.
Accordingly, I have not focused my review of these documents on that basis. I urge the custodian to consult the oEinions of this office when considering redactions from personnel records. 2

Additionally, I note that throughout the records you have provided the personnel number of the former employee is left unredacted. While this office has said that the personnel numbers of former employees should be 23 redacted, the custodian must weigh the decision of whether to redact the personnel number of a former employee so long separated from the City. 24

• Exhibits B through D: From the face of the records, these appear to be incident reports, and thus are public records subject to disclosure in their entirety. 25 The decisions to classify them as personnel records and to redact portions of them are inconsistent with the FOIA.

• Exhibit G: The custodian's decisions with respect to this record are largely consistent with the FOIA. However, additional information (in the box at the bottom of the first page entitled "Additional Information") must also be redacted. 26

• Exhibit S: The custodian's decisions to classify this record as an employee evaluation record and to withhold it from disclosure are inconsistent with

22
For instance, please see Ops. Att'y Gen. 2007-226 regarding leave records and documents related to any compensation a former employee receives in addition to their regular paycheck, and 2002-107 regarding an employee's or former employee's salary and salary history. This would also apply to the records you labeled as Exhibits E and F. 23 See Ark. Code Ann. § 25-19-105(b)(l l) (Supp. 2017). See also Op. Att'y Gen. 2015-057.
24
See Op. Att'y Gen. 2017-134 (stating that "to the extent the job-class number meets the definition of "data used to cause a computer or a computer system ... to perform security functions, including, but not limited to ... personal identification numbers .... "). 25 See Hengel v. City of Pine Bluff, 307 Ark. 457, 821 S.W .2d 761 ( 1991 ).
26
See Op. Att'y Gen. 2001-080.

Jennifer A. Waymack, Senior Staff Att'y
City of Rogers
Opinion No. 2018-008
Page 9

the FOIA. With respect to resignation letters, this office has consistently opined that such records generally constitute "personnel records" within the meaning of the FOIA. 27 As such, their disclosure must be evaluated under test for personnel records. From the face of the record, I can see nothing that would rise to the level of a clearly unwarranted invasion of the former employee's personal privacy. As such, the record should be released.

In summary, it is my opinion that the custodian's decisions with respect to these records are mostly, but not entirely, consistent with the FOIA. Additional redactions, however, must be made as noted. Furthermore, other records must be reclassified and disclosed under the appropriate standard.

Sincerely,

~~-
1:· /,#17
LESLIE RUTLEDGE
Attorney General

27
Op. Att'y Gen. 2017-079 (and opinions cited therein).