Can a state employee block release of records from her file that don't relate to her suspension under the Arkansas FOIA?

Plain-English summary

A local news station made a FOIA request to the Arkansas Department of Finance and Administration for "documentation related to any termination or suspension of an employee of the Jacksonville Revenue Office between September 20, 2017[,] to present." The custodian decided to release a packet of redacted records. Carla Turley, the subject, objected to release of "any document(s) which do not specifically relate to either a suspension or termination action," believing only the October 10, 2017 memorandum should be released.

The AG made three key points:

1. Identifying responsive records is the custodian's job, not the AG's. The AG cannot tell the custodian what is or is not responsive to a FOIA request. The AG can only review whether responsive records the custodian has identified are exempt.

2. Workforce Services records may implicate a separate exemption. Several records appeared to relate to an Arkansas Department of Workforce Services unemployment claim. Ark. Code Ann. § 11-10-314(a) creates a separate confidentiality exemption that is outside the AG's review authority under § 25-19-105(c)(3)(B)(i). The AG declined to opine on those records.

3. Net pay must be redacted. Salary information is generally disclosable. But the "net pay" entry on the Remuneration Statement included in the release packet should be excised, consistent with prior AG opinions treating insurance coverage, tax withholding, payroll deductions, and similar intimate financial details as not subject to release.

Currency note

This opinion was issued in 2018. 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.

What the AG said about the responsive-records scope

The opinion's most procedurally important holding is the boundary it drew around the AG's role: under § 25-19-105(c)(3)(B)(i), the AG reviews custodian decisions about whether records are exempt, not custodian decisions about what records are responsive. Turley wanted the AG to say that only the October 10, 2017 memorandum should be released. That was a responsiveness question, and the AG declined to address it. The custodian alone determines what records are responsive to a FOIA request (citing Op. Att'y Gen. 2005-175).

The "net pay" redaction line

The AG line-drew between "salary information" (disclosable, citing Ops. Att'y Gen. 2012-014, 2011-045, 2002-107, 96-205) and "intimate financial details" (must be redacted, citing Ops. Att'y Gen. 2016-093, 2001-112, 2000-320, 98-126). Net pay falls on the intimate-financial side because it reflects the cumulative effect of tax withholdings, insurance deductions, and payroll choices that are treated as private. Gross salary stays on the disclosable side as a matter of public-interest accountability for taxpayer dollars.

The Workforce Services side-step

A FOIA request for an employee's records can pull in records from other agencies maintained alongside personnel records. Here, several documents related to a Workforce Services unemployment claim. Ark. Code Ann. § 11-10-314(a) makes Workforce Services records confidential. That is an exemption from FOIA, but it is created outside § 25-19-105 (which is the AG's review jurisdiction under (c)(3)(B)(i)). The AG declined to opine because the question fell outside her statutory mandate. Cited prior opinions: 2017-085, 2012-072.

Common questions

As the subject, can I tell the AG that some records aren't responsive to the request?
You can raise the issue, but the AG cannot resolve it. Responsiveness is the custodian's call. If you disagree, you would have to challenge the custodian's responsiveness determination in court.

Why is "net pay" redactable but "salary" disclosable?
Salary is what the public pays you, which is squarely a public-accountability question. Net pay is what you actually take home after voluntary and statutory deductions, which can reveal personal choices about insurance, taxes, retirement, and other intimate financial matters that the AG treats as private.

What about gross pay?
Gross pay is generally disclosable as the public-cost equivalent of salary. The AG's redaction list specifically targets net pay, insurance refunds, deductions, banking info, and similar items.

My personnel file has records from Workforce Services. Are they protected?
Possibly, under § 11-10-314 (employment security confidentiality). The AG cannot review that exemption under her § 25-19-105(c)(3)(B)(i) advisory authority, so you may need to consult counsel or pursue a court determination separately.

The request was for records about my suspension. Why is the custodian releasing other things?
The custodian decides what is responsive to the request. If the request was reasonably broad, the custodian may interpret it broadly. Your remedy is to challenge the responsiveness determination, not the exemption analysis.

Background and statutory framework

The opinion sits at the intersection of three FOIA features: the personnel/evaluation framework, the responsiveness vs exemption distinction, and the redaction list. Personnel records are open under Young v. Rice balancing unless a clearly unwarranted privacy invasion would result. Even open personnel records have specific items that must be redacted.

The AG's most consistent line on financial information: gross salary disclosable; net pay, insurance, tax withholding, payroll deductions, banking info redactable. The cited prior opinions form a stable set of guidance for records custodians dealing with payroll-related personnel records.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact mandatory redaction)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion)
• Ark. Code Ann. § 11-10-314(a) (Workforce Services records confidentiality)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387
• Ops. Att'y Gen. 2005-175 (custodian decides responsiveness)
• Ops. Att'y Gen. 2017-085, 2012-072 (Workforce Services exemption outside AG review)
• Ops. Att'y Gen. 2005-194, 2001-112, 98-126 (net pay and intimate financial info)

Source

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

Original opinion text

Opinion No. 2018-015
February 15, 2018
Carla Turley
c/o Lauren Ballard, Revenue Legal Counsel
Department of Finance and Administration
P.O. Box 1272, Room 2380
Little Rock, AR 72203

Dear Ms. Turley:

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) (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 the Department of Finance and Administration (DF&A) has received a FOIA request from a local news station seeking "documentation related to any termination or suspension of an employee of the Jacksonville Revenue Office between September 20, 2017[,] to present." The attorney for the custodian of records has attached a redacted copy of the records DF&A intends to release in response to the request. You object to the release of "any document(s) which do not specifically relate to either a suspension or termination action," and you express your belief that the only document that should be released is a memorandum dated October 10, 2017. You ask whether the custodian's decision to release the records as redacted is consistent with the FOIA.

RESPONSE

Under section 25-19-105(c)(3)(B), my duty is to state whether the decision of the custodian is consistent with the FOIA. As a preliminary matter, I must note that my duty in this regard arises after records have been located and is limited to reviewing the custodian's decision as to "whether the records are exempt from disclosure." My review does not include identifying what records are responsive to FOIA requests. That task is uniquely within the custodian's purview.

Additionally, I note that a number of the records that have been submitted for my review appear to relate to the Arkansas Department of Workforce Services. These records may implicate a separate statutory exemption that is outside the scope of my review under section 25-19-105(c)(3)(B). I cannot assess in this opinion the extent to which that exemption might apply to the records at issue.

With regard to the remainder of the records, however, it is my opinion that with one exception, the custodian's decision to release the records as redacted is consistent with the FOIA. In my opinion, the "net pay" entry should also be excised prior to release of the "Remuneration Statement."

DISCUSSION

III. Application.

Having reviewed the records, I must first note that a number of them appear to be related to a claim for unemployment benefits with the Arkansas Department of Workforce Services. These kinds of records may be exempt from disclosure pursuant to a separate statute, Ark. Code Ann. § 11-10-314(a) (Supp. 2017). However, I cannot assess in this opinion the extent to which this exemption applies to the records at hand. Such an inquiry is outside the scope of my review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

With regard to the other records, it is my conclusion based on the above guidelines and previous opinions of this office that with one exception, the custodian's decision to release them as redacted is consistent with the FOIA. Among the records selected to be released is a "Remuneration Statement." Salary information is clearly subject to disclosure, as such information does not constitute a "clearly unwarranted invasion of personal privacy." This office, however, has also opined that documents related to insurance coverage, tax withholding, and payroll deductions (as well as similar records that would divulge intimate financial details) should be excised from otherwise releasable documents. Consistent with previous opinions of this office, I believe "net pay" should also be excised prior to release of this "Remuneration Statement."

Sincerely,

LESLIE RUTLEDGE
Attorney General