Does an Arkansas state agency director have the same FOIA privacy protections in his personnel file as a rank-and-file employee?

Plain-English summary

Gary Isom was the Executive Director of the Arkansas Real Estate Commission. AREC received a FOIA request for his personnel file. Isom himself, in his capacity as both the records custodian and the records subject, asked the AG to confirm that the planned redacted release would comply with the Arkansas FOIA.

AG Leslie Rutledge concluded the release was generally proper but flagged five categories of additional redactions needed before the file could go out:

1. The "Personnel Number" or "Personnel No." appearing throughout the records (also referenced as "Per #" on a "Request to Fill a Position Vacated by Retirement" form) had to be redacted under Ark. Code Ann. § 25-19-105(b)(11).
2. The Social Security number on a 1996 "Job Vacancy - Requisition Report (JV-RR)."
3. The marital status field on the "Arkansas Human Resource Management System Employee Personal Data" form. Marital status is not subject to disclosure under the personnel-records balancing test (Op. Att'y Gen. 2001-080).
4. The personal home address on two "Arkansas Human Resources Management System Maintenance Document" forms and a 01/10 letter to the AREC Executive Director containing a job application. Home addresses are explicitly exempt under Ark. Code Ann. § 25-19-105(b)(13).
5. The federal tax withholding information, deduction information, and net pay on a 1987 "Arkansas Personnel Management Information System File Dump - Employee" and a 1992 "State of Arkansas Earnings Statement."

This opinion is the most catalog-heavy of the five companion AREC personnel file opinions issued the same day (2018-059 through 2018-063), probably because Isom's file went back to 1987 and accumulated more old documents that had escaped earlier redaction passes.

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

Does the agency head have less privacy than a rank-and-file employee?

No. The Arkansas FOIA personnel-records balancing test applies the same way regardless of the employee's seniority. SSN, marital status, home address, tax and deduction details all come out for the agency's executive director just as they would for an entry-level employee. What is different is that decisions made in the director's official capacity may carry more public-interest weight on the disclosure side of unrelated records, but that does not change the personal-privacy redactions.

Why is marital status protected?

Op. Att'y Gen. 2001-080 worked through the Young v. Rice balancing for marital status and concluded the public interest in knowing whether a state employee is married is essentially zero, while the privacy interest is meaningful. Same analysis applies to information about dependents.

What about a home address that appears on a 30-year-old form?

Still has to come out. The exemption under § 25-19-105(b)(13) does not have a sunset based on document age. If the home address is in the file, it gets redacted, whether the document is from 1987 or last week.

What is the practical effect of this opinion on the requester?

The requester sees the substantive personnel record (the application, the position-vacancy report, the bonus and salary records in gross terms) without the personal identifiers, contact information, financial deduction details, or marital/dependent information. That is enough to verify how the public dollar was spent on this employee, which is the public-interest justification for personnel-record disclosure in the first place.

What does "Op. Att'y Gen. 2001-080" mean?

It is a 2001 Arkansas AG opinion that worked out the marital-status redaction analysis. AG opinions are persuasive but not binding precedent; they get cited within later AG opinions to maintain consistency. They are searchable in the same Arkansas AG opinions database where this opinion lives.

Background and statutory framework

The same Arkansas FOIA framework applies as in the rest of the May 15, 2018 AREC cluster:

• Ark. Code Ann. § 25-19-105(b)(12) (personnel records, with the Young v. Rice balancing test).
• Ark. Code Ann. § 25-19-105(b)(13) (mandatory redaction of personal contact information).
• Ark. Code Ann. § 25-19-105(b)(11) (personal identification numbers used for computer security).
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (the AG advisory-opinion procedure).

The categorical redactions of marital status and home address come from the AG's prior balancing-test analysis in Op. Att'y Gen. 2001-080.

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. 2001-080 (marital status redaction)
• Op. Att'y Gen. 2003-153; 2006-035 (SSN redaction)
• Op. Att'y Gen. 2018-015; 2005-194; 2001-112; 98-126 (net pay redaction)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORN EY GENERAL
LES LI E RUTLEDGE
Opinion No. 2018-062
May 15, 2018
Gary Isom, Executive Director
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201-4740
Dear Mr. Isom:
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 correct, but some further redactions are necessary in order for the release of the 1 Although you have not voiced any paiticular 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 futther redactions, or the withholding of any records in their entirety, are necessary. 323 CENTE R STREET. SU ITE 200 · LITTLE ROCK. ARKANSAS 72201 TE LEPHON E (501 ) 682-2007 · FAX (501) 682-8084 ARKANSASAG .GOV Gary Isom, Executive Director Ark. Real Estate Comm'n Opinion No. 2018-062 Page 2 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 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 ... Gary Isom, Executive Director Ark. Real Estate Comm'n Opinion No. 2018-062 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." 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). Gary Isom, Executive Director Ark. Real Estate Comm'n Opinion No. 2018-062 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)(13));
• 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); 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. 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. Gary Isom, Executive Director Ark. Real Estate Comm'n Opinion No. 2018-062 Page 5
• 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" or "Personnel No." appears throughout the records. The number is also referenced at "Per #" in a document entitled "Request to Fill a Position Vacated by Retirement." These numbers presumably provide access to computerized data. They 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 "Job Vacancy - Requisition Report (JV-RR), dated October 3, 1996: The employee's social security number must be redacted.16 15 Ark. Code Ann.§ 25-19-105(b)(l 1). 16 See Ops. Att'y Gen. 2006-035, 2003-153. Gary Isom, Executive Director Ark. Real Estate Comm' n Opinion No. 2018-062 Page 6
• The document entitled "Arkansas Human Resource Management System Employee Personal Data": The employee's marital status must be redacted. For reasons explained in Op. Att'y Gen. 2001-080, a public employee's marital status is not subject to disclosure under the personnel-records balancing test.
• Two documents, both entitled "Arkansas Human Resources Management System Maintenance Document," and a letter to the Executive Director of AREC dated 01/10 (containing a job application): The employee's personal address on both documents must be redacted. A public employee's personal contact information, including home address, is specifically exempt under the FOIA.17
• The document entitled "Arkansas Personnel Management Information System File Dump - Employee," dated 03/10/87, and the document entitled "State of Arkansas Earnings Statement," dated 01/08/92: Both of these documents reference the employee's 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 documents because the nominal public interest in it is easily outweighed by the employee's privacy interest.18 And consistent with previous opinions of this office, I believe "net pay" should also be excised prior to the release of these documents.19 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,
  ~-;;;>- .(. //~"fa
  LESLIE RUTLEDGE
  Attorney General
  17 Ark. Code Ann.§ 25-19-105(b)(13).
  18 See Ops. Att'y Gen. 2012-063, 2005-194, 2003-385. 19 See Ops. Att'y Gen. 2018-015, 2005-194, 2001-112, and 98-126.