What did the Arkansas AG require before AREC released Joyce Foreman’s personnel records under FOIA?

Plain-English summary

The Arkansas Real Estate Commission planned to release redacted copies of Joyce Foreman's personnel records in response to a Freedom of Information Act request. Foreman asked the Attorney General to review the release decision. The Attorney General agreed that the records were personnel records and that the public interest warranted disclosure, but identified further information to remove first.

The opinion called for redaction of personnel numbers, listed Social Security numbers, personal contact details in a job application, taxes withheld and taxable earnings in a payroll document, pre- and post-tax deductions, and net pay distribution. It distinguished gross salary, which remained disclosable, from the detailed tax and deduction information.

One item required a factual decision by the custodian. Entries headed “Matching” and “Contributions” appeared to refer to payroll deductions or retirement contributions. The Attorney General said they must be redacted if the custodian concludes either description accurately represents the entries. The opinion's footnote cites earlier AG opinions on payroll deductions and the privacy balance for retirement information; the application still leaves identification of these particular entries to the custodian.

Currency note

This opinion applied Arkansas FOIA to records reviewed in 2018. Check current statutes and later decisions before using its redaction guidance for another request.

Common questions

Could AREC release the personnel records?
Yes, after the additional redactions. The Attorney General found the records properly classified as personnel records and the public interest strong enough to warrant their disclosure.

Are “Matching” and “Contributions” entries automatically withheld? No. The Attorney General said their meaning was uncertain from the face of the records. If the custodian finds they represent the employee's payroll deductions or contributions toward retirement benefits, those entries must be redacted.

What other details did the Attorney General identify for redaction? She listed personnel numbers, Social Security numbers on specified forms, personal contact information on the employee's resume, and taxes withheld, taxable earnings, deductions, and net pay distribution on a specified payroll document. The opinion identified the forms and payroll period rather than ordering every number in the file withheld.

Was gross salary withheld with the payroll details?
No. The opinion expressly said gross salary information was subject to disclosure. Its requested payroll redactions concerned taxes, taxable earnings, deductions, and net pay distribution.

Does an employee's objection alone prevent disclosure? No. The opinion says the personnel-record privacy test is objective. It applies the public-interest and privacy balance described in Young v. Rice and places the burden on the person resisting disclosure.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed the subject of personnel records to request an AG review of a custodian's release decision. The opinion explains that personnel records may be disclosed unless release would be a clearly unwarranted invasion of personal privacy. It also identifies separately protected information, including public employees' personal contact details and identification numbers used for computer security. Whether the “Matching” and “Contributions” entries fit a protected financial category remained a factual question for the custodian.

Citations

• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (Supp. 2017)
• Ark. Code Ann. § 25-19-105(b)(12)
• Ark. Code Ann. § 25-19-105(b)(13)
• 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. 98-126 (cited in footnote 16 on payroll deductions)

Source

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

Original opinion text

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2018-064

May 15, 2018

Joyce Foreman
Arkansas Real Estate Commission
612 South Summit Street
Little Rock, AR 72201

Dear Ms. Foreman:

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 further redactions are necessary in order for the release of the records

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 further redactions, or the withholding of any records in their entirety, are necessary.

323 CENTER STREET. SU ITE 200 · LITTL E RO C K. ARKANSAS 7220 1 TELEP HONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG.GOV

Joyce Foreman
Opinion No. 2018-064
Page 2

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 ....

Joyce Foreman
Opinion No. 2018-064
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).

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Opinion No. 2018-064
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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. § 25-19-1 OS(b )(13));
• 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 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.

Joyce Foreman
Opinion No. 2018-064
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• 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.

However, it is my opinion that the following additional information must be redacted in order for the release of the records to be consistent with the FOIA:

• Passim: A "Personnel No.", and a "Personnel Number" appear throughout the records. Additionally, in a document entitled "Hiring Freeze - Position Vacated by Retirement," the personnel number is referenced as "Per #." 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

• Passim: There are several documents throughout that have information under the headings of (or relating to) "Matching" and "Contributions." It appears from the face of the records that this information may refer to payroll deductions of the employee or contributions made towards the 15
Ark. Code Ann.§ 25-19-lOS(b)(l 1).

Joyce Foreman
Opinion No. 2018-064
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employee's retirement benefits. If, in the custodian's opm1on, either of those descriptions is an accurate representation of that information, then that information must be redacted. 16

• On a "Delinquent Service Form" document for fiscal year 2007: The employee's social security number must be redacted. 17

• The document entitled "AASIS Agency Delinquent Services Detail/Payment Reconciliation": The employee's social security number must be redacted. 18 Also, please refer to the second bullet point above.

• On page 6 of 9 of the employee's 2013 online job application (date printed:
11/5/2013), namely the employee's resume, the employee's personal contact information (home address, home telephone number, personal cellphone number, and personal email address) must be redacted. A public employee's personal contact information, including home address, is specifically exempt under the FOIA. 19

• The payroll document for pay period 8/18/2013 to 8/31/2013, all amounts relating to taxes withheld and taxable earnings must be redacted. While gross 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. 20 Additionally, all pre- and post-tax deductions, as well as the employee's net pay distribution must be redacted. 21
16
See Op. Att'y Gen. 98-126 (opining that "payroll deductions (as well as similar records that would divulge intimate financial details) should be excised from otherwise releasable documents"). See also Ops. Att'y Gen. 2005-041 and 2002-043 (and opinions cited therein) (stating that when applying the Young v. Rice balancing test to personal financial information such as retirement contributions and benefits, "the balance most often tips in favor of the individual's privacy interest in this information, and it should therefore be kept private."). 17 See Ops. Att'y Gen. 2006-035, 2003-153.

18 Id.

19
Ark. Code Ann.§ 25-19-105(b)(l3).
20
See Ops. Att'y Gen. 2012-063, 2005-194, 2003-385.
21
See Ops. Att'y Gen. 2018-015, 2005-194, 2001-112, and 98-126.

Joyce Foreman
Opinion No. 2018-064
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• The document from the Department of Finance and Administration entitled "Employee Disclosure Requirements/Restrictions Notice" (dated 4/23/2007): The employee's social security number must be redacted.

• The document from the Department of Finance and Administration entitled "Change in Employment Status" (dated 1114/2007): The employee's social security number must be redacted.

In conclusion, the custodian's decision to disclose the records at issue is generally correct. But further redactions must be made in order for the release of the records to be consistent with the FOIA.

Sincerely,

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LESLIE RUTLEDGE
Attorney General