Can a city employee block the release of his personnel file and city ID photograph to a FOIA requester who he believes is harassing him?

Plain-English summary

Caleb Garcia, the Deputy City Attorney for the City of Little Rock, asked Attorney General Leslie Rutledge for an opinion about a FOIA request for his personnel file (including his city identification photograph). Garcia identified the requester and claimed the request was made for the purpose of harassing him and invading his personal privacy, not to advance open-government interests. He asked the AG whether the records could be withheld on those grounds.

The AG declined to issue a specific opinion on Garcia's records because the custodian (the City) had not yet made a release decision and the AG had not seen the records. Without those, no specific opinion was possible.

But the AG used the request to underline two points that mattered for Garcia's situation:

Photographs of public employees are ordinarily disclosable. The AG had previously opined, consistently, that records depicting public employees fall within the personnel-records framework and are subject to release. The Young v. Rice balancing test for personnel records would generally tip toward disclosure for ID photos, because the public has an interest in identifying public employees and the privacy interest in a workplace ID photograph is typically minimal.

The custodian's analysis is purely objective. The Young v. Rice balancing test asks about the public's interest in disclosure and the subject employee's privacy interest, both measured objectively. It does not include the requester's motives. As Op. Att'y Gen. 2014-094 had previously stated, "the FOIA simply does not authorize custodians to deny access to public records due to the custodian's assessment of the requester's intent to harass."

So Garcia's framing of the issue (the requester's motive) did not give the custodian a legal basis to refuse release. If Garcia's personnel file fell within the personnel-records definition and the Young v. Rice balancing test tipped toward disclosure, the records had to be released regardless of who asked or why.

The AG noted that her statutory role is to opine on whether the custodian's decision is consistent with the FOIA, not to act as a fact-finder, and certainly not to declare a private requester's motives improper. If Garcia believed the FOIA was being weaponized against him, his recourse was civil action against the requester, not a blanket FOIA exemption.

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.

Background and statutory framework

The Arkansas FOIA, Ark. Code Ann. § 25-19-101 et seq., presumes public records are open. Two exceptions can come up in personnel-file disputes:

• Personnel records (§ 25-19-105(b)(12)): records about an individual employee that are not employee-evaluation records. Open unless disclosure would be "a clearly unwarranted invasion of personal privacy" under the Young v. Rice balancing test, which has the scale tipped toward disclosure.

• Employee-evaluation records (§ 25-19-105(c)(1)): 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," per Thomas v. Hall, 2012 Ark. 66. Closed unless four release conditions are met (suspension or termination, finality, basis, compelling public interest).

The Young v. Rice balancing test is objective. The custodian asks whether the record contains information of a personal or intimate nature giving rise to a greater than de minimis privacy interest, then weighs that interest against the public's interest in disclosure. Both interests are evaluated as a matter of objective public policy, not subjective motivations of either party.

Op. Att'y Gen. 2014-094 directly addressed the harassment-motive question: a custodian may not refuse release because she believes the requester is acting to harass. The same rule applies even when the subject employee makes the assertion.

How photographs fit into the personnel-records framework

The AG's prior opinions have treated workplace identification photographs as personnel records. The privacy interest in such a photo is generally low: it is taken in a workplace setting for official purposes, often appears on a badge worn in public, and depicts how the employee looks at work. The public's interest in identifying employees who serve them with public dollars is concrete.

Some marginal cases (e.g., undercover law enforcement officers under section 25-19-105(b)(10)) have specific exemptions or higher privacy interests. But for a city deputy attorney, those exemptions do not apply.

Common questions

Could Garcia have done anything to keep the photo private?

The AG's answer suggests no, at least not under the FOIA. He could have asked the custodian to apply the Young v. Rice balancing test carefully to his specific records, but the standard application would not produce a privacy bar.

What about home address, personal phone, etc.?

Personal contact information of public employees (home phone, personal email, home address) must be redacted under section 25-19-105(b)(13) before any personnel record is released. So Garcia's home information was protected even if his ID photo was not.

What about the workplace bullying/harassment angle?

The AG took the position that the custodian's job is not to evaluate requester motives. But Garcia could pursue civil remedies (harassment, stalking, etc.) against the requester directly if the conduct extended beyond filing a FOIA request. The FOIA does not provide a remedy for that, and the custodian cannot become an arbiter of motive.

Was the AG saying personnel records are fully public?

No. The custodian still applies the Young v. Rice balancing test record-by-record, and personal contact information, SSN, medical info, and other discrete items are always redacted. The point was that the requester's motive is not part of the analysis.

Why did the AG only set out the standards instead of giving a yes-or-no?

Because the custodian had not yet decided and the AG had not seen the records, the AG could not opine on the consistency of a non-existent decision. Her statutory role under section 25-19-105(c)(3)(B)(i) is to opine on a custodian's decision, not to make hypothetical rulings.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A); 25-19-105(b)(12), (b)(13); 25-19-105(c)(1), (c)(3)(B)(i); 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; Ops. Att'y Gen. 2014-094 (objective test, no harassment-motive exception), 2010-044, 2007-070.

Source

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

Original opinion text

Opinion No. 2018-087
July 18, 2018
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
Caleb Garcia, Deputy City Attorney
Little Rock City Hall
500 West Markham
Little Rock, AR 72201
Dear Mr. Garcia:
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 City of Little Rock has received a request under the FOIA for your personnel file, including your city identification photograph. You seek my opinion regarding the release of your file, although you have not indicated whether the custodian of records has made a determination with respect to its release. You have outlined several reasons why you believe your personnel file should not be released to the requester, who you say has made the FOIA request for the purpose of harassment and invasion of your personal privacy, and not for the purpose of open government.

RESPONSE
My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In this instance, I do not know what decision the custodian has made. And I have not seen any of the records that are responsive to the request for your personnel file. I therefore cannot opine on the custodian's decision. Nor can I address the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. In this regard, I will note that the balancing test for the release of personnel records is entirely objective. This means that, as this office has consistently noted, the custodian does not consider the subjective motives or identity of the requester.

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 seem to be met. I gather the request in this case was made to the City of Little Rock, which is a public entity subject to the FOIA. And the request presumably pertains to public records. The FOIA defines public records 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 . . . ." There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records.

If we presume, as we must, that the requested records are public records as defined in the FOIA, the analysis then proceeds to the third element, that is, whether any exceptions preclude disclosure.

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" or "employee evaluation or job performance records." 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.

a. Personnel-records exception.

The first of the two most relevant potential exceptions is the one for "personnel records," which the FOIA does not define. But this office has consistently opined that "personnel records" are all records other than employee evaluation and job performance records that pertain to individual employees. 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."

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 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.

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. 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. 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. 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.

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 (Ark. Code Ann. § 25-19-105(b)(13)); employee personnel number; marital status of employees and information about dependents; dates of birth of public employees; social security numbers; medical information; any information identifying certain law enforcement officers currently working undercover; driver's license numbers; insurance coverage; tax information or withholding; payroll deductions; and banking information.

With regard to a photograph, this office has consistently opined that records depicting public employees ordinarily are subject to disclosure under the test for personnel records.

b. Employee-evaluation exception.

The second potentially relevant exception is for "employee evaluation or job performance records," which the FOIA likewise does not define. But 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. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

If a document meets the above definition, the document cannot be released unless all the following elements have been met: (1) the employee was suspended or terminated; (2) there has been a final administrative resolution of the suspension or termination proceeding; (3) the records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee; and (4) the public has a compelling interest in the disclosure of the records in question.

III. Application.

Without knowing what decision the custodian has made and without seeing the records responsive to the request, I cannot opine on the consistency of any specific release decision with the FOIA. I have, however, set out the standards above. With respect to your concern that the FOIA request was made for purposes of harassment, the FOIA simply does not authorize custodians to deny access to public records due to the custodian's assessment of the requester's intent to harass. The Young v. Rice balancing test is entirely objective.

Sincerely,

LESLIE RUTLEDGE
Attorney General