Can a public employee's net pay be released under the Arkansas FOIA, or does it have to be redacted along with tax withholding and deductions?

Plain-English summary

Linda K. Alkire is an Arkansas Real Estate Commission employee. AREC received a FOIA request for her personnel file and proposed to release a redacted version. Alkire used the procedure under Ark. Code Ann. § 25-19-105(c)(3)(B)(i) to ask AG Leslie Rutledge whether the release would comply with the FOIA.

The AG concluded the release was generally proper but flagged two redactions that AREC still needed to make:

1. The "Personnel Number" appearing in several records (a personal identification number used for computer access, exempt under Ark. Code Ann. § 25-19-105(b)(11)).
2. Tax withholding information, deductions information, and net pay shown on a payroll record for the 02/08/2009 pay period. The AG held that all three categories had to be excised, even though gross salary is itself releasable.

This opinion is one of a cluster of five (2018-059 through 2018-063) issued the same day. The substantive contribution of this particular opinion to the cluster is the explicit treatment of net pay as exempt: the AG cited prior opinions (Op. 2018-015, 2005-194, 2001-112, 98-126) confirming that net pay should be excised along with tax and deduction information.

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, 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 is "net pay" redacted? Isn't it just a math result from gross salary?

In theory yes, but the public interest test in Young v. Rice operates document by document. Gross salary is on the disclosable side because it shows public spending. Net pay reveals withholding, deductions, and personal financial choices, which sit on the privacy side. The AG has long taken the view that disclosing net pay would let a requester back into the deductions, which are themselves exempt. So the practical rule is: gross salary may stay, net pay comes out.

What does "Personnel Number" mean here?

Internal employee identifiers used by Arkansas state HR/payroll systems for login and record access. They are treated as personal identification numbers under Ark. Code Ann. § 25-19-105(b)(11). The exemption is narrow but it covers exactly this kind of internal computer-access identifier.

Does this mean the requester just sees a blacked-out paystub?

A pay record typically gets the privacy-side fields redacted (withholding, deductions, net pay, sometimes the Personnel Number) while leaving the gross-pay column visible. So the requester can see what the employee was paid, just not what was taken out.

Could AREC have refused the request entirely?

No. The records were public records under Ark. Code Ann. § 25-19-103(7)(A) and were properly classified as personnel records. The two-step Young v. Rice balancing test favored disclosure. AREC's job was to release with the correct redactions, not to refuse.

What if the agency released more than it should have?

The employee's remedy under § 25-19-105(c)(3)(B)(i) is to ask the AG for an opinion on whether the release was consistent with the FOIA. That is exactly what happened here. Beyond the AG's advisory role, courts can also be asked to enforce FOIA correctly.

Background and statutory framework

The Arkansas FOIA personnel-records framework applies the same way to every state agency, AREC included. Ark. Code Ann. § 25-19-105(b)(12) is the personnel-records exemption, with the Young v. Rice balancing test. Ark. Code Ann. § 25-19-105(b)(11) is the personal-identification-number exemption. The AG has read tax withholding, payroll deductions, and net pay into the personnel-records balancing test as items where the privacy interest beats the public interest.

The procedural hook is Ark. Code Ann. § 25-19-105(c)(3)(B)(i): the records custodian, the requester, or the subject can each ask the AG to review the planned release.

Citations

• Ark. Code Ann. § 25-19-105(b)(11) (personal identification numbers used for computer security)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (employee personal contact information)
• 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)
• Op. Att'y Gen. 2018-015; 2005-194; 2001-112; 98-126 (net pay redaction)
• Op. Att'y Gen. 2012-063; 2005-194; 2003-385 (tax withholding redaction)

Source

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

Original opinion text

Opinion No. 2018-061
May 15, 2018
Ms. Linda Alkire
STATE OF ARKANSAS
ATTORNEY GENERAL
LES LI E RUTLEDGE
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201-4740
Dear Ms. Alkire:
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 file. 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 correct, but some further redactions are necessary in order for the release of the 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 fu11her redactions, or the withholding of any records in their entirety, are necessary. 323 CENTER STREET. SU ITE 200 · LITTLE ROCK. ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV Ms. Linda Alkire Opinion No. 2018-061 Page 2 records to be consistent with the FOIA. I will set out the relevant 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, in my opinion, 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 be divided into two mutually exclusive groups: "personnel records"4 or "employee 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). 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 ... Ms. Linda Alkire Opinion No. 2018-061 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 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." I will therefore limit my discussion to that exception. 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 a balancing test that weighs the public's interest in accessing the records against
[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)(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." 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). 8 308 Ark. 593, 826 S.W.2d 252 (1992). Ms. Linda Alkire Opinion No. 2018-061 Page 4 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. Ms. Linda Alkire Opinion No. 2018-061 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, 2003-3 85);
• 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 in several of 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
• A payroll record for pay period 02/08/2009 references specific tax withholding information, deduction information, and net pay. While salary information is clearly subject to disclosure, this office has consistently opined that tax information should be excised from otherwise releasable 15 Ark. Code Ann.§ 25-19-lOS(b)(l l). Ms. Linda Alkire Opinion No. 2018-061 Page 6 documents because the nominal public interest in it is easily outweighed by the employee's privacy interest.16 And consistent with previous opinions of this office, I believe "net pay" should also be excised prior to the release of these documents.17 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,
  ~~- L //~"fa
  LESLIE RUTLEDGE
  Attorney General
  16 See Ops. Att'y Gen. 2012-063, 2005-194, 2003-385.
  17 See Ops. Att'y Gen. 2018-015, 2005-194, 2001-112, and 98-126.