Can DF&A release an Arkansas Department of Emergency Management employee's name with the amount of her performance-review pay raise under the FOIA?

Plain-English summary

Theresa Molina, an employee of the Arkansas Department of Emergency Management at Camp Joseph T. Robinson in North Little Rock, asked the Attorney General whether DF&A could release her name with the amount of her pay raise tied to the new performance-review system. The procedural vehicle was Ark. Code Ann. § 25-19-105(c)(3)(B)(i), which lets the subject of personnel or employee-evaluation records ask the AG whether a custodian's planned release is consistent with the FOIA.

Attorney General Leslie Rutledge concluded that DF&A's release was consistent with the FOIA. She enclosed a copy of Opinion 2018-093 (issued the same day to Angel Eddleman) for the substantive analysis and did not restate it.

The reasoning, in short: state employee salary information, including merit raise amounts, falls within the "personnel records" category under Ark. Code Ann. § 25-19-105(b)(12) and must be released unless disclosure would be "a clearly unwarranted invasion of personal privacy." Under the Arkansas Supreme Court's two-step balancing test in Young v. Rice, 308 Ark. 593 (1992), with the scale tipped in favor of disclosure, public employee salary rarely rises to that level. The raise amount itself is a personnel record, not an "employee evaluation or job performance record" under section 25-19-105(c)(1) and Thomas v. Hall, 2012 Ark. 66, because it is the result of an evaluation rather than the evaluation itself.

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 exception (§ 25-19-105(b)(12)): personnel records are released unless disclosure would be "a clearly unwarranted invasion of personal privacy." The Young v. Rice balancing test controls. Salary information has consistently been treated as a personnel record carrying minimal privacy interest.

• Employee-evaluation records exception (§ 25-19-105(c)(1)): records created by or at the employer's behest to evaluate the employee are confidential unless four conditions are met (suspension or termination, finality, the records formed the basis for that decision, and a compelling public interest in disclosure).

A pay raise reflects an evaluation result, but the AG treated it as a personnel record (the consequence of the evaluation), not an evaluation record itself. Op. Att'y Gen. 2013-066 had previously reached the same conclusion for merit raises.

Why this opinion is brief

The AG issued six near-identical opinions on August 3, 2018: Opinions 2018-093 through 2018-098: to six different state employees who all objected to the same DF&A release. Rather than reproduce the analysis in each, the AG wrote it out fully in 2018-093 and referred the other five subjects to that opinion by enclosing a copy. The conclusion in each was the same.

For the substantive analysis, including the redaction list of items that must be removed before release (personal contact information, SSNs, medical info, etc.), see Opinion 2018-093.

Common questions

Did Molina's emergency-management role create any special privacy claim?

The opinion did not draw any line based on agency or duty. The AG noted only one carve-out from the redaction list that ties to law enforcement: "any information identifying certain law enforcement officers currently working undercover" must be redacted under section 25-19-105(b)(10). Emergency-management staff are not within that exception.

What about the address listed in the opinion?

The agency address (Camp Joseph T. Robinson, Building 9501) is the work address, not the employee's home address. Personal contact information (home phone, personal email, home address) must be redacted under section 25-19-105(b)(13) before any personnel record is released, but a work address does not implicate that protection.

Could Molina ask the requester to keep the information confidential?

The Arkansas FOIA does not impose any duty of confidentiality on a requester after release. Once DF&A discloses, the requester can republish, share, or post the data. That is a feature of the FOIA, not a flaw, and it is one reason the privacy interest in personnel records is analyzed objectively.

What was the practical outcome for Molina?

After this opinion, DF&A was clear to release her name and raise amount. The opinion concluded the AG's involvement; any further challenge would have required litigation in circuit court.

Citations

Ark. Code Ann. §§ 25-19-105(c)(3)(B)(i); 25-19-105(b)(12); 25-19-105(c)(1); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992); Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387; Op. Att'y Gen. 2018-093 (companion opinion containing the full analysis); Op. Att'y Gen. 2013-066.

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. 2018-098
August 3, 2018
Theresa Molina
Arkansas Department of Emergency Management
Camp Joseph T. Robinson
Building 9501
North Little Rock, AR 72199
Dear Ms. Molina:
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. Please see the enclosed Attorney General Opinion 2018-093, which explains the basis for this conclusion. I will not restate that explanation herein, but instead refer you to the enclosed opinion for the substantive analysis.

Sincerely,

LESLIE RUTLEDGE
Attorney General