Can a Pine Bluff School District employee block disclosure of her personnel records by pointing to a pending internal review or a school district policy?

Plain-English summary

The Pine Bluff School District planned to release several documents from Suzette Anderson's personnel file in response to an Arkansas Freedom of Information Act request. Anderson objected because disclosure could affect an ongoing internal employment matter, the records would be used for someone's “personal use,” and a district policy addressed access to personnel records. The Attorney General reviewed the documents and agreed with the custodian's decision to release them.

The Attorney General classified the documents as personnel records. She found the public interest in disclosure strong enough under the personnel-record privacy test and said none of Anderson's stated objections justified withholding the otherwise nonexempt records. The requester's subjective motive was not a proper basis for the custodian's decision; neither the pending internal review nor the cited district policy supplied a basis for denial.

Footnote 1 narrows what the review covered. The copies Anderson submitted already had some custodian redactions. Because she had not objected to those redactions, the Attorney General did not review whether they were proper. She considered Anderson's grounds for withholding and whether further redactions or complete withholding were needed. The opinion did not identify a new redaction to make in these documents.

Currency note

This opinion reviewed a particular 2018 disclosure decision. Check current Arkansas FOIA law before applying its standards to a different set of records.

Common questions

Can an employee block release because a requester may use the records for a personal purpose? No. The Attorney General said the custodian generally may not consider the requester's subjective motive or identity when applying the personnel-record privacy test.

Did the pending employment matter prevent release?
No. The Attorney General said the pending internal review Anderson identified was not a recognized reason to deny access to these otherwise nonexempt personnel records.

Did the district policy prevent release?
No. The opinion said the school district policy Anderson cited was not a recognized basis for denying access to the records.

Did the Attorney General approve the existing redactions? She did not decide whether those redactions were proper. Footnote 1 says Anderson did not object to them, so the review addressed her grounds against release and whether further redactions or complete withholding were necessary.

Why did the opinion treat these as personnel records? The Attorney General had no information suggesting the documents were created by or at the behest of the employer to evaluate Anderson. Based on the documents' face, she classified them as personnel records and applied the corresponding privacy test.

Background and statutory framework

Ark. Code Ann. § 25-19-105(c)(3)(B)(i) allowed Anderson, as the records' subject, to request an AG opinion on the custodian's decision. Under § 25-19-105(b)(12), personnel records are available unless release would be a clearly unwarranted invasion of personal privacy. The opinion describes the Young v. Rice balance and explains that the test is objective. Employee evaluation or job performance records have a different disclosure standard under § 25-19-105(c)(1), but the Attorney General did not classify the attached documents that way.

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(c)(1)
• 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

Source

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

Original opinion text

STAT E OF ARKAN SAS
ATTO RN EY G ENERAL
LE SLIE RUTLE DGE

Opinion No. 2018-066

May 16,2018

Suzette Anderson
c/o Pine Bluff School District
512 South Pine Street
P. 0. Box 7678
Pine Bluff, AR 71601

Dear Ms. Anderson:

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 Pine Bluff School District has received a request under the FOIA for release of several documents from your personnel file. You have attached the documents, which the custodian has determined are personnel records and are releasable. You object to the release of the documents because you say their release could affect an ongoing internal employment-related matter. You also say that the records would be for someone's "personal use," and you cite a school district policy regarding access to personnel records as a further basis for denying access to the records.

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 (1) they are properly classified as personnel records, and (2) the custodian ' s decision to release the

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records is correct. I will set out the relevant definitions and standards and then apply them to the records you attached. 1

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 Pine Bluff School District, which is a public entity, subject to the FOIA. And the requested documents are plainly "public records," which the FOIA defines 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 .... 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

1
The documents you attached contain a number of redactions that have been made by the records' custodian. Your objection to the release of the documents is not based on the propriety or impropriety of the redactions, and I thus take it you are not asking for my review of the redactions. Accordingly, I have focused my review on your stated grounds for objecting to the release, as well as on determining whether any further redactions, or the withholding of any records in their entirety, are necessary.

2
Ark. Code Ann. § 25-19-103(7)(A).

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-

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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.

The relevant potential exception in this case is the one for "personnel records." I will therefore confine my analysis 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 or 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

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 ...
[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. The FOIA likewise does not define "employee evaluation or job performance records." However, 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. I have no information to suggest that the documents in this case were created by or at the behest of the employer. Based on the face of the documents, therefore, I conclude that they are properly classified as personnel records.

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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 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

When custodians conduct the balancing test for personnel records, the test is entirely objective. The fact that the subject of any such records may consider release of the records an unwarranted invasion of personal privacy is therefore not definitive because the test is objective. 13 This also means that, as this office has consistently noted, the custodian generally is not permitted to take into account the

7
Ark. Code Ann.§ 25-19-105(b)(12).
8
308 Ark. 593, 826 S.W.2d 252 (1992).
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.

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subjective motives or identity of the person seeking the records. 14 Neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester.

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15

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);
• 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)(1 O));
• 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 ).

14
See Op. Att'y Gen. No. 2014-094 (and opinions cited therein). In other words, the test for release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. It may be that the requester has an ulterior motive. But the requester's motive is not the basis for the custodian's analysis. Id. 15 Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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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.

In sum, the custodian's decision to release the records is consistent with the FOIA, in my opinion. And I must conclude that your stated objections to the release are not a sufficient basis for reversing the custodian's decision. As explained above, the custodian cannot consider the subjective motive of the person requesting the records. Nor is the pending internal review or school district policy you have identified a recognized basis for denying access to otherwise non-exempt public records.

Sincerely,

~~- ~· //iJ..;#17
LESLIE RUTLEDGE
Attorney General