When an Arkansas state employee's personnel file is released under FOIA, do tax withholding details and performance evaluation columns have to be removed?

Plain-English summary

The Arkansas Real Estate Commission planned to release Claudia D. Howard's personnel file in response to a FOIA request. Howard, the subject of the records, asked AG Leslie Rutledge to review the planned release.

The AG concluded the release was generally proper but flagged four items in the AREC's draft that still had to be redacted before going out:

1. The "Personnel Number" appearing throughout the file (Ark. Code Ann. § 25-19-105(b)(11), exemption for personal identification numbers used in computer security).
2. The federal tax withholding information on a 1992 "Arkansas Human Resources Management System Maintenance Document" (the AG has consistently treated tax withholding as exempt because the public interest in it is "easily outweighed" by the employee's privacy interest).
3. A column titled "PERF EVAL" on a 2004 "Clip Bonus payments" document (this column is an employee evaluation/job performance record under Ark. Code Ann. § 25-19-105(c)(1) and is closed unless the very limited disclosure prerequisites are met).
4. The Social Security number on a "Job Vacancy - Requisition Report (JV-RR)."

This is one of five companion AREC personnel file opinions issued the same day (2018-059 through 2018-063). They are useful read together as a practical checklist for what an Arkansas agency HR office has to scrub before answering a personnel-file FOIA.

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.

The Arkansas FOIA has been amended since 2018. Section numbering and the precise list of exemptions in Ark. Code Ann. § 25-19-105 should be confirmed against the current statute before relying on any specific subsection cited here.

Common questions

Why does the AG single out a stray "PERF EVAL" column on a bonus document?

Because employee evaluation and job performance records get a different (much stricter) FOIA treatment than ordinary personnel records. Under Ark. Code Ann. § 25-19-105(c)(1), they are closed unless the agency has reached a final administrative resolution of a suspension or termination proceeding that turned on the records, AND there is a compelling public interest in their disclosure. A column showing the employee's performance evaluation, even if it lives on a bonus tracking spreadsheet, is still an evaluation record. So that single column has to come out, even though the rest of the bonus document is releasable.

Why is federal tax withholding exempt? It is not on the FOIA exemption list by name.

The AG reads it into the personnel-records balancing test under § 25-19-105(b)(12). The privacy interest in one's tax situation is meaningful; the public's interest in seeing how much was withheld for federal tax (as opposed to gross salary, which is itself disclosable) is minimal. The AG has been consistent on this for many years. Same logic applies to payroll deductions and net pay.

Why is salary disclosable but withholding is not?

Salary is the public's check on whether their tax dollars are being spent appropriately. That answers the public-interest side of the balance heavily in favor of disclosure. Withholding is the employee's individual financial choice (single vs. married filing status, dependents claimed, whether they over-withhold, etc.) and reflects nothing about the agency's spending. The privacy side wins.

What about the Social Security number?

SSNs are categorically redacted. Even when a redaction is missed in a draft release, the AG flags it. SSNs enable identity theft, the privacy interest is overwhelming, and the public interest in seeing them is essentially nil.

How does this opinion help a typical FOIA requester?

It gives the requester a checklist of what they should expect to come back redacted. If a state agency releases more than this list (e.g., leaks home addresses or SSNs), the requester knows the agency made a mistake. If the agency redacts more than this list (e.g., redacts salary), the requester has a basis to push back.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., treats personnel records as presumptively open under § 25-19-105(b)(12), with disclosure only blocked if it would constitute a "clearly unwarranted invasion of personal privacy." The two-step Young v. Rice balancing test runs first whether the privacy interest is more than de minimis, and if so, whether it outweighs the public interest. The burden is on the person resisting disclosure (Stilley v. McBride).

Employee evaluation/job performance records under § 25-19-105(c)(1) get a different and much narrower test: they are released only after a final administrative resolution of a suspension or termination proceeding that the records formed the basis for, and only if there is a compelling public interest. The AG enforced that distinction here by requiring redaction of the PERF EVAL column even though it appeared inside an otherwise releasable document.

Citations

• Ark. Code Ann. § 25-19-105(b)(11) (personal identification numbers)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records)
• Ark. Code Ann. § 25-19-105(b)(13) (employee personal contact information)
• Ark. Code Ann. § 25-19-105(c)(1) (employee evaluation records)
• 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)
• Op. Att'y Gen. 2012-063; 2005-194; 2003-385 (tax withholding redaction)
• Op. Att'y Gen. 2003-153; 2006-035 (SSN redaction)
• Op. Att'y Gen. 2014-094; 2007-070 (Personnel Number redaction)

Source

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

Original opinion text

Opinion No. 2018-060
May 15, 2018
Claudia D. Howard
STATE OF ARKANSAS
ATTORN EY GENERAL
LESLI E RUTLEDGE
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201-4740
Dear Ms. Howard:
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. 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 Arkansas Real Estate Commission (AREC) has received a request under the FOIA for your personnel files. You have attached a copy of redacted records that AREC intends to release in response to the FOIA request, and you ask whether the decision to release the records is consistent with the FOIA.1 RESPONSE My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the decision to disclose the records at issue is generally 1 Although you have not voiced any pa1ticular objection, I gather you object to the records' release. And I take it that your objection is not based on the propriety or impropriety of the redactions that have been made. I have therefore focused my review on determining whether any further redactions, or the withholding of any records in their entirety, are necessary. 323 CENTER STREET, SUITE 200 · LITTLE ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Claudia D. Howard Opinion No. 2018-060 Page 2 correct, but some further redactions are necessary in order for the release of the records to be consistent with the FOIA. I will set out the definitions and standards, and I will then identify the additional redactions that are necessary. 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 are clearly met. The request was made to the AREC, which is a public entity, subject to the FOIA. And the requested documents plainly meet the FOIA's definition of "public records," i.e., "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 .... 2 Therefore, the documents at issue 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 2 Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017). 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). Claudia D. Howard Opinion No. 2018-060 Page 3 be divided into two mutually exclusive groups: "personnel records"4 or "employee 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 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. Personnel-records exception. In my opinion, the relevant potential exception in this case is the one for "personnel records." The FOIA does not define the term "personnel records," but this office has consistently opined that it includes 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 4 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." 5 Ark. Code Ann. § 25-19-105(c)(l): "Notwithstanding subdivision (b)(l2) 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." 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)(l2). 8 308 Ark. 593, 826 S.W.2d 252 (1992). Claudia D. Howard Opinion No. 2018-060 Page 4 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 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); 9 Watkins, et al., at 208. 10 Young, 308 Ark. at 598, 826 S.W.2d at 255. 11 Id., 826 S.W.2d at 255. 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. Claudia D. Howard Opinion No. 2018-060 Page 5
• 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 ).
  III. Application.
  Having reviewed the records, it is my opinion that they are all properly classified as personnel records. Additionally, the public interest in disclosure is sufficiently strong to warrant the records' disclosure under the above standard applicable to personnel records. Therefore, in my opinion, the records must be released. In my opinion, however, the following additional information must be redacted in order for the release of the records to be consistent with the FOIA:
• Passim: A "Personnel Number" appears throughout the records. This number presumably provides access to computerized data. It must therefore be redacted because records containing "personal identification numbers" used for computer security functions are specifically exempt from disclosure under the FOIA.15
• The document entitled "Arkansas Human Resources Management System Maintenance Document," dated 03/15/92, references the employee's federal tax withholding information. While salary information is clearly subject to disclosure, this office has consistently opined that tax information should 15 Ark. Code Ann.§ 25-19-lOS(b)(l 1). Claudia D. Howard Opinion No. 2018-060 Page 6 be excised from otherwise releasable documents because the nominal public interest in it is easily outweighed by the employee's privacy
• 16 mterest.
• A document dated 06/03/04 regarding "Clip Bonus payments" contains a column titled "PERF EVAL." This entire field must be redacted.17
• In the document entitled "Job Vacancy - Requisition Report (JV-RR)," the employee's social security number must be redacted.18 In conclusion, the custodian's decision to disclose the records at issue is generally correct. But some further redactions must be made in order for the release of the records to be consistent with the FOIA. Sincerely,
  ~:-;::-::>- ~' / #11'
  LESLIE RUTLEDGE
  Attorney General
  16 See Ops. Att'y Gen. 2012-063, 2005-194, 2003-385. 17 Ark. Code Ann.§ 25-19-105(c)(l) (employment evaluation exception). 18 See Ops. Att'y Gen. 2006-03 5, 2003-153