Can Arkansas DF&A release the names and pay raise amounts of state employees who got raises under the new performance review system in response to a FOIA request?

Plain-English summary

The Arkansas Department of Finance and Administration (DF&A) planned to release "the first and last name of every state employee that received a raise (associated with performance review) along with the amount." Employee Angel Eddleman objected that disclosing a name together with a raise amount would reveal a confidential performance evaluation. The Attorney General concluded that the custodian's decision to release the requested raise information "is consistent with the FOIA."

The opinion classifies an employee's salary information, including raise amounts, as a personnel record. That category is open unless disclosure would be a "clearly unwarranted invasion of personal privacy." The AG said release of public employees' names and salary information "will rarely rise to the level of such an invasion," so these records generally must be released. She also said whether release of any particular personnel record meets that privacy standard "is always a question of fact." The opinion decided DF&A's proposed disclosure; it did not hold that every salary record is automatically public in full.

The fact that a raise follows a review did not turn the raise information into an employee evaluation record. The AG called the raise "the result of an evaluation" presumably recorded in distinct evaluation records. Although a raise can reflect that an employee met performance standards, the raise information "is not itself an employee evaluation." That distinction resolved Eddleman's objection to release of the names and amounts.

Currency note

Issued August 3, 2018. The opinion addresses DF&A's proposed release under the law then in force. Check current law and the records at issue before relying on it.

How the two record categories differ

The opinion explains that a FOIA request must reach a covered entity, seek a public record, and face no applicable exception. DF&A was covered and the requested records appeared to be public records. The remaining issue was how the personnel-records and evaluation-records exceptions applied.

For a personnel record, Young v. Rice requires a balance between the public interest in access and the individual's privacy interest, with the scale tipped toward disclosure. The custodian first asks whether the information is personal or intimate enough to create more than a minimal privacy interest. If so, the custodian weighs that interest against public access. The employee resisting disclosure bears the burden of showing that privacy outweighs the public interest. The AG applied this framework to the proposed names and raise amounts.

An employee evaluation record is different: it is created by or at the employer's behest to evaluate and detail performance. Its release requires suspension or termination, final administrative resolution, the record's role as a basis for that action, and a compelling public interest. The AG treated any underlying evaluation as distinct from its resulting pay raise. She did not decide the release of any underlying evaluation document.

The opinion also says a document that meets the release test may contain discrete information that must be redacted, such as personal contact information or Social Security numbers. DF&A's proposed release was limited to names and raise amounts; the AG did not make a finding about unrelated details in personnel files.

Common questions

Did the AG say every state salary record must be released without review?

No. She approved this custodian's planned release of names and raise amounts. She said disclosure of public employees' names and salary information will rarely be a clearly unwarranted invasion of privacy, while the result for a particular personnel record remains a question of fact.

Does a performance-linked raise become a confidential evaluation record?

The AG said no for the raise information at issue. It can reflect satisfaction of performance standards and still be a personnel record because the evaluation itself is presumably recorded separately. The opinion does not decide whether a separate evaluation document may be released.

Why did DF&A include employee names?

Its stated plan was to release each raise recipient's first and last name with the raise amount. Eddleman objected to that pairing. The AG concluded the plan was consistent with FOIA after classifying the information as personnel records and applying the privacy standard.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), (b)(13), (c)(1), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Ops. Att'y Gen. 2013-066, 2007-070.

Source

• Official opinion search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
ATTORN EY GEN ERAL
LESLIE RUTL EDGE

Opinion No. 2018-093

August 3, 2018

Angel Eddleman
c/o Kay Barnhill Terry, Administrator
DF&A Office of Personnel Management
1509 West 7th Street, #201
Little Rock, AR 72201

Dear Ms. Eddleman:

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 Department of Finance and Administration ("DF &A") has received a request for "the raise (amount) each state employee recently received following the implementation of the new performance review system." DF&A has determined that the requested records are subject to release under the FOIA, and it plans to release "the first and last name of every state employee that received a raise (associated with performance review) along with the amount." You object to the release of names in conjunction with the amount of raise and express concern that by sharing the raise information, DF &A is sharing confidential performance evaluations.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. In my opinion, the custodian's decision to release the requested raise information is consistent with the FOIA.

323 CENTER STREE T. SU ITE 200 · L ITTLE RO C K. ARKAN SAS 72201 TELEP HONE (50 1) 682-2007 · FAX (50 1) 682-8084 ARKANSASAG .GOV

Angel Eddleman
Opinion No. 2018-093
Page 2

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. The request was made to DF &A, which is a public entity, subject to the FOIA. The request appears to pertain 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 .... 1 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 2

Therefore, in my opinion, the requested records 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

1
Ark. Code Ann. § 25-19-103(7)A) (Supp. 2017).
2
See Op. Att'y Gen. 2010-044.

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 & Robe11 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 ....

Angel Eddleman
Opinion No. 2018-093
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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.
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. 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)(l 2) 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) (Supp. 2017).
8
308 Ark. 593, 826 S.W.2d 252 (1992).

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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.§ 25-19-105(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 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.
14
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-001.

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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)(l0));
• 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).
  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. 15 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 16

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 (i.e., level of discipline);
2. There has been a final administrative resolution of the suspension or termination proceeding (i.e., finality);

15
Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387. See also Ops. Att'y Gen. 2009-067, 2008-004, 2007-225, 2006-038, 2005-030, 2003-073, 98-006, 97-222, 95-351, 94-306, and 93-055. 16 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.

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3. The records in question formed a basis for the decision made in that proceeding to suspend or terminate the employee (i.e., basis); and 4. The public has a compelling interest in the disclosure of the records in question (i.e., compelling interest). 17

The primary purpose of this exception is to preserve the confidentiality of the formal job-evaluation process in order to promote honest exchanges in the employee/employer relationship. 18

III. Application.

Individual employees' salary information-including raises (amounts thereof)- meets the definition of a "personnel record. " 19 Accordingly, the FOIA requires that it be released unless doing so constitutes a "clearly unwarranted invasion of personal privacy." 20 As this office has consistently explained, the release of public employees' names and salary information will rarely rise to the level of such an invasion. 21 Therefore, these kinds of records generally must be released.

As for your concern that DF &A would be sharing confidential performance evaluations by releasing this salary information, it is my opinion that the raise information is properly characterized as a personnel record, not an employee- evaluation record. Like a bonus or promotion, the raise rewards the employee for a certain level of performance. It is the result of an evaluation that is presumably recorded in distinct "employee evaluation or job performance records." I recognize that the raise information reflects the fact that the employee satisfied some performance evaluation standards and received a pay increase that correlates in some way to performance. But as this office has previously noted regarding 22 similar pay raises, the raise information is not itself an employee evaluation. 17 Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
18
Cf Op. Att'y Gen. 96-168; Watkins, Peltz-Steele & Steinbuch at 223.
19
See Ops. Att'y Gen. 2015-016, 2013-066, 2011-045, 2011-098. See also Op. Att'y Gen. 2007-070 (opining that a state-maintained electronic database that included individual employees' salary and bonus information is properly classified as a personnel record). 20 Ark. Code Ann.§ 25-19-106(b)(12).
21
See Ops. Att'y Gen. 2017-038, 2011-045.
22
Op. Att'y Gen. 2013-066 (concluding that the amount of a merit raise constituted a personnel record, and not an employee-evaluation record, despite the fact that the release would indirectly reveal some overall

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Opinion No. 2018-093
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It is therefore my opinion, in conclusion, that the custodian's decision to release the requested raise information is consistent with the FOIA.

Sincerely,

.c:;.::-;~- ". / #..A'"7
LESLIE RUTLEDGE
Attorney General

evaluation result). See also Op. Att'y Gen. 2007-070 (opining that a report of bonuses that included percentages reflecting the fact that employees satisfied some competency-based criteria) and received a correlative bonus did not constitute an employee-evaluation record).