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 received a FOIA request for several documents from the personnel file of employee Suzette Anderson. The custodian determined the documents were personnel records and were releasable. Anderson objected, citing three concerns:

1. Releasing the records could affect an ongoing internal employment-related matter.
2. The records would be for someone's "personal use."
3. A Pine Bluff School District policy regarding access to personnel records ought to constrain disclosure.

She asked AG Leslie Rutledge to review whether the custodian's decision was consistent with the FOIA.

The AG agreed with the custodian. The records were properly classified as personnel records, and the public interest in disclosure under the Young v. Rice balancing test was sufficient to support release. None of Anderson's three objections changed the answer:

• The requester's subjective motive ("personal use") is irrelevant. The Young v. Rice test is objective. The custodian cannot consider why the requester wants the records, or that the request might be motivated by personal grievance rather than oversight of government. Op. Att'y Gen. 2014-094 collects prior opinions to that effect.
• A pending internal employment matter does not block disclosure. Personnel records do not become exempt because the agency is itself reviewing the employee. (Note that "employee evaluation or job performance records" have a different rule under § 25-19-105(c)(1), tied to final administrative resolution of suspension or termination, but those are a different category from personnel records and the AG's earlier classification analysis was unchallenged here.)
• A school district policy is not a recognized FOIA exemption. The agency cannot adopt internal rules that override the FOIA's default of disclosure.

The opinion is a sturdy reaffirmation that custodians apply objective tests on the records as they exist, not on the agency's internal politics or the requester's motivations.

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.

Common questions

Q: Why is the requester's motive irrelevant?
A: The Arkansas FOIA does not let custodians screen requesters. Whether someone wants public records to file a lawsuit, write a news story, or run a vendetta, they have the same right of access. Young v. Rice and the AG opinions cited here treat the test as objective: do the records, in themselves, shed light on the workings of government?

Q: What about a pending internal review of the employee?
A: A pending HR matter does not by itself convert a personnel record into a confidential one. If the records were "employee evaluation or job performance records," § 25-19-105(c)(1) would allow withholding until final administrative resolution of suspension/termination, but the records here were classified as personnel records, which are governed by the privacy-balancing test.

Q: Can a school district adopt a policy limiting access to its personnel records?
A: Not in a way that overrides the FOIA. The FOIA is state law. A school district policy that purports to lock up otherwise disclosable public records is not a recognized basis for denial. The district can have internal procedures for handling requests, but it cannot create new substantive exemptions.

Q: How does this differ from the sex-harassment-complaint opinion (Op. 2018-083)?
A: That opinion required redaction of the complainant's name because a sexual-harassment context creates a "very high" privacy interest that outweighs the public interest in identity. Here, the AG saw no comparable specific privacy issue, and the employee's three asserted reasons did not make a legal case for withholding.

Q: Did the AG identify any items that should be redacted from the Pine Bluff records?
A: The AG noted that the records were already partially redacted by the custodian, that the employee did not challenge the existing redactions, and that the AG was therefore focused on whether further redactions were needed. The opinion's bottom line is that the public-interest analysis supports disclosure of the records as redacted.

Q: What's the difference between a personnel record and an employee evaluation record?
A: Thomas v. Hall, 2012 Ark. 66, defines an employee evaluation record as one (1) created by or at the behest of the employer, (2) used to evaluate the employee, and (3) detailing the employee's performance or lack thereof. Personnel records are everything else in the employee's file. The two categories trigger different disclosure tests.

Q: Could the employee challenge the redactions themselves?
A: Yes, but she didn't here. The AG's review was bounded by the question Anderson actually asked, which was whether the disclosure was consistent with the FOIA on the basis of her three stated grounds. The AG addressed those grounds, not the upstream question of whether the redactions were correctly drawn.

Background and statutory framework

Same FOIA framework as the related personnel-records opinions on the same date. Ark. Code Ann. § 25-19-105(b)(12) (personnel records, with privacy balancing); § 25-19-105(c)(1) (employee evaluation records, with stricter disclosure rules); § 25-19-105(c)(3)(B)(i) (AG opinion procedure).

The objective-test rule for the requester's motive is well-established in Arkansas FOIA practice, and is reflected in a long line of AG opinions cited here (2016-055, 2001-112, 2001-022, 94-198, and 2014-094). The rule that internal agency policies cannot override the FOIA is implicit in the structure of the statute: only statutory exemptions count.

Citations and references

Statutes:

• Ark. Code Ann. § 25-19-103(7)(A) (definition of public records)
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifying information)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel records exemption)
• Ark. Code Ann. § 25-19-105(b)(13) (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 opinion review procedure)

Cases:

• 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 (definition of employee evaluation records)

Prior AG opinions referenced:

• Op. Att'y Gen. 2014-094 (subjective motive of requester)
• Op. Att'y Gen. 2015-072, 99-147 (definition of personnel records)
• Op. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198 (objective test)
• Op. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001 (factual nature of the inquiry)
• Op. Att'y Gen. 2007-070 (employee personnel number)
• Op. Att'y Gen. 2007-064 (date of birth)
• Op. Att'y Gen. 2006-035, 2003-153 (Social Security numbers and medical information)
• Op. Att'y Gen. 2007-025 (driver's license)
• Op. Att'y Gen. 2004-167 (insurance coverage)
• Op. Att'y Gen. 2005-194, 2003-385 (tax information)
• Op. Att'y Gen. 98-126 (payroll deductions)
• Op. Att'y Gen. 2001-080 (marital status and dependents)

Source

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

Original opinion text

Opinion No. 2018-066
May 16, 2018

Suzette Anderson
c/o Pine Bluff School District
512 South Pine Street
P.O. 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 records is correct. I will set out the relevant definitions and standards and then apply them to the records you attached.

[Standard FOIA framework discussion follows, including the general standards for disclosure, the personnel-records exception under § 25-19-105(b)(12), the Young v. Rice two-step balancing test, the burden of proof on the person resisting disclosure under Stilley v. McBride, and the standard list of categories that must be redacted in any case.]

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. This also means that, as this office has consistently noted, the custodian generally is not permitted to take into account the subjective motives or identity of the person seeking the records. Neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester.

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,

Leslie Rutledge
Attorney General