Are public employees' names, job positions, and pay rates releasable under the Arkansas FOIA, even over the employees' objections?

Plain-English summary

Rogers Water Utilities (RWU), a public utility in Rogers, Arkansas, received a FOIA request for information used in developing the utility's "Compensation Administration Policy," including supporting data identifying employees by name, position, and pay. RWU's outside counsel Robert A. Frazier classified the responsive documents as personnel records and decided they should be released. Several RWU employees objected to release. Frazier asked AG Leslie Rutledge to confirm the release was consistent with the Arkansas FOIA.

The AG agreed with Frazier. Public employees' names, job positions, and salary information have been consistently treated by the AG and the Arkansas Supreme Court as personnel records under Ark. Code Ann. § 25-19-105(b)(12), and the Young v. Rice balancing test always tips toward disclosure for that category. The privacy interest of a public employee in keeping the public from knowing their name, title, or how much they earn at a public utility is, in the AG's words, not enough to outweigh the public's interest. The employees' objections were noted but not controlling, because the Young v. Rice test is objective.

This is a routine FOIA opinion that establishes the most basic baseline of Arkansas public-records law: if a person's salary is paid by a public agency, that salary is public.

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.

Common questions

Are all public employees' salaries public in Arkansas?

Yes, generally. The AG and Arkansas Supreme Court have consistently held that public employees' names, job positions, and salary are personnel records, and that disclosure of those items does not constitute a "clearly unwarranted invasion of personal privacy" under Ark. Code Ann. § 25-19-105(b)(12). This applies to state agencies, cities, counties, school districts, public universities, and public utilities like RWU.

What about employee objections?

The Arkansas Supreme Court's Young v. Rice balancing test is objective. The fact that an individual employee objects to disclosure is irrelevant: the test asks whether disclosure would be a clearly unwarranted invasion of personal privacy, measured against the public interest, not whether the employee feels invaded. Public employees do not have a veto over FOIA requests for their basic compensation data.

What was special about Rogers Water Utilities?

Nothing legally. RWU is a public entity subject to the Arkansas FOIA, just like any other municipal utility. The opinion is a useful citation for any Arkansas city utility or other municipal-level employer asked to release name/position/salary data: the answer is yes.

Are paystubs releasable too?

Gross salary is releasable. Net pay, tax withholding, payroll deductions, and similar items are not (see, for example, the AG's reasoning in Ops. 2018-060 and 2018-061). A typical public-records release shows job title and gross compensation, but redacts the privacy-side items that appear on the same record.

What about non-salary compensation like benefits?

The AG opinions cited in this one (Ops. 2012-014, 2011-132, 2011-045) cover the standard list. Health and retirement benefit elections are typically treated as private; gross salary, position, and broad benefit categories (e.g., that the employer offers a health plan) are public. The dividing line is whether disclosure reveals individual financial choices versus how the public dollar was spent.

How does this differ from the AREC personnel-files cluster on May 15?

The AREC cluster (Ops. 2018-059 through 2018-063) involved entire personnel files for individual employees, with many privacy-side fields requiring redaction. The RWU request was narrower: just the names, positions, and pay-related data used to develop the compensation policy. With nothing beyond that in the records, there were no separate redaction items to flag.

Background and statutory framework

The Arkansas FOIA's personnel-records framework:

• Personnel records under Ark. Code Ann. § 25-19-105(b)(12): subject to the Young v. Rice balancing test. Burden is on the person resisting disclosure (Stilley v. McBride).
• Employee evaluation/job performance records under Ark. Code Ann. § 25-19-105(c)(1): the much narrower exemption with the four-element test for release. Names, positions, and pay are not evaluation records (Thomas v. Hall defines evaluation records narrowly), so this opinion does not engage that exemption.

Citations

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records exemption)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (AG advisory opinion procedure)
• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• 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
• Op. Att'y Gen. 2012-014; 2011-132; 2011-045; 2011-114; 2002-107; 96-205 (consistent prior treatment of names, positions, salary as personnel records)

Source

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

Original opinion text

Opinion No. 2018-054
May 3, 2018
Robert A. Frazier
Attorney at Law
219 West Chestnut Street
Rogers, AR 72756
Dear Mr. Frazier:
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLIE RUTLEDGE
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 Rogers Water Utilities (R WU) has received a FOIA request seeking information that was used in developing RWU's "Compensation Administration Policy," including supporting data. You have determined that documents containing the requested information- which includes employees' names and positions and information about their pay- are properly classified as personnel records under the FOIA. And you have determined that the records are subject to disclosure. You state that you have been notified that several employees have objected to release of the material and you therefore are seeking an opinion from my office. 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 your decision is consistent with the FOIA. 323 CENTER STREET. SU ITE 200 · LITTLE ROCK. ARKANSAS 7220 I TELEPHONE (50 1) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Robert A. Frazier Opinion No. 2018-054 Page 2 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 to be met in this case. First, the request was made to the City of Rogers Water Utility, which is a public entity subject to the FOIA. As for the second element, the FOIA defines public records as "writings, 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 ... carried out by a public official or employee . . . . 1 It appears clear from the face of the documents in question that they meet this definition. 2 Therefore, in my opinion, the 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.3 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records"4 or "employee 1 Ark. Code Ann.§ 25-19-103(7)(A) (Supp. 2017). 2 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. See Op. Att'y Gen. 2010-044. 3 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). 4 Ark. Code Ann. § 25-19-105(b )( 12) (Supp. 2017): "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 Robert A. Frazier Opinion No. 2018-054 Page 3 evaluation or job performance records."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 properly classify the record; that is, 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 the record be disclosed. In this instance, I believe it is clear from the face of the records at issue that the relevant exception is the one for personnel records. I will therefore limit my discussion to the test for disclosure relating to those types of records.6 Personnel-records exception. The FOIA does not define the term "personnel records." 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.7 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 chapter .... [p]ersonnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." 5 Ark. Code Ann. § 25-19-105( c )(1 ): "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 ifthere is a compelling public interest in their disclosure." 6 Regarding "employee evaluation or job performance records," 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. Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. The record in question plainly does not constitute an employee-evaluation record. Consequently, I will not undertake any further discussion of that exception. 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202. Robert A. Frazier Opinion No. 2018-054 Page4 except "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy. "8 While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice,9 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. 10 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.11 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.12 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.13 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. 14 Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.15 8 Ark. Code Ann.§ 25-19-105(b)(12). 9 308 Ark. 593, 826 S.W.2d 252 (1992). 10 Watkins, et al., at 208. 11 Young, 308 Ark. at 598, 826 S.W.2d at 255. 12 Id., 826 S.W.2d at 255. 13 Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998). 14 E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207. 15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001. Robert A. Frazier Opinion No. 2018-054 Page 5 III. Application. This office has consistently opined that the release of public employees' names, job positions, and salary must be evaluated under the provision of the FOIA applicable to "personnel records."16 Your decision to classify the records in question as personnel records is therefore consistent with the FOIA, in my opm1on. Accordingly, the FOIA requires that these records be released unless doing so constitutes a "clearly unwarranted invasion of personal privacy." 17 This office has repeatedly opined that the release of a public employee's name, job position, and salary does not rise to such a level, which means the information must be released in response to an FOIA request.18 It is therefore my opinion that your decision to release the records in question is consistent with the FOIA. LESLIE RUTLEDGE Attorney General 16 E.g., Ops. Att'y Gen. 2012-014, 2011-132, 2011-045, 2011-114, 2002-107, 96-205. 17 A.C.A. § 25-19-105(b)(12). 18 E.g., Ops. Att'y Gen. 2012-014 and 2011-045.