Can a city release redacted Residency Incentive Program applications under Arkansas FOIA, and what redactions are required?

Plain-English summary

City of Little Rock FOIA coordinator Ashley Boswell asked the Attorney General whether the city's plan to release redacted copies of every Residency Incentive Program application, both approvals and denials, was consistent with the Arkansas FOIA. The applications had been treated as personnel records of the city employees who applied, with redactions of certain personal identifiers.

Attorney General Leslie Rutledge approved most of the decision. The classification was correct: applications to a city benefit program by city employees are personnel records under FOIA, distinct from "employee evaluation or job performance records." The redacted release was, in the AG's words, "mostly consistent with the FOIA."

The opinion did flag one specific gap. In some of the responsive records, employee identification numbers had not been redacted. The AG's prior opinions consistently treat employee ID numbers as items that must be redacted before release: see Op. Att'y Gen. 2014-094 and Op. Att'y Gen. 2007-070. The AG instructed the custodian to "ensure that all information on the records that is not subject to disclosure is properly redacted prior to release."

The opinion repeated the standard list of items that must come out of a personnel record before public release: personal contact information (personal phone numbers, personal email addresses, home addresses) under section 25-19-105(b)(13), employee personnel numbers, marital status and dependent information, dates of birth, Social Security numbers, medical information, undercover law enforcement identifying information under section 25-19-105(b)(10), driver's license numbers, insurance coverage, tax and withholding information, payroll deductions, and banking information.

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

Section 25-19-105(c)(3)(B)(i) gives the custodian, requester, or subject of personnel or employee-evaluation records a way to ask the AG whether a release decision is consistent with FOIA. The opinion is advisory, not binding, but it serves as a reasoned check before disclosure.

The disclosure analysis proceeds in three steps. First, is the request directed to a covered entity? Yes, the City of Little Rock is. Second, is the requested document a public record under section 25-19-103(7)(A)? Yes, applications submitted to and processed by a city department reflect the performance of official functions. Third, does any exception apply?

Two exceptions matter. Section 25-19-105(b)(12) protects "personnel records to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Section 25-19-105(c)(1) protects employee-evaluation or job-performance records, defined by Thomas v. Hall as records (1) created by or at the employer's behest, (2) used to evaluate the employee, and (3) detailing the employee's performance or lack of performance. The Residency Incentive Program applications are not evaluation records. They are forms submitted by an employee to apply for a city benefit and are processed by HR. The AG agreed with the custodian's classification as personnel records.

Personnel records pass the disclosure test unless release would be a clearly unwarranted invasion of personal privacy. The Young v. Rice balancing test asks first whether the information is of a personal or intimate nature giving rise to a greater than de minimis privacy interest, and second, whether that interest is outweighed by the public interest in disclosure, with the scale tipped in favor of disclosure. Stilley v. McBride confirms that the burden is on the person resisting disclosure.

Why redaction was the right approach

A program applicant's name, work assignment, and approval or denial status are the kinds of facts the public has a legitimate interest in knowing, especially for a city benefits program funded by public revenue. Those facts do not give rise to more than a de minimis privacy interest, so the Young scale tips toward disclosure for them.

But application forms typically collect specific personal identifiers, contact information, dates of birth, sometimes financial details, that go beyond what the public needs to know. Disclosing those discrete pieces of information would invade privacy without serving the public interest. The standard FOIA workflow is to release the form with those items redacted: privacy interest preserved, public interest served.

Employee identification numbers belong in that same redacted-discrete-fields category. The AG's earlier opinions consistently say so: ID numbers can be combined with other data sources to expose employees to identity theft, payroll-system access, or unwanted contact. Even though an ID number alone might seem innocuous, it carries enough downstream risk that it stays out.

The AG closed by emphasizing the scope of the custodian's redaction duty: it is not enough to redact most instances; the custodian must catch every appearance of every protected field. That diligence is what separates a defensible release from a problematic one.

Common questions

Were the names of approved applicants protected?

The opinion does not say the city should redact applicant names. The redaction list focuses on discrete personal identifiers (contact info, ID numbers, SSN, financial data, etc.). The names of public employees who applied for or received a city benefit are typically subject to disclosure, balanced against any unusual privacy concern in a particular case.

What about employees whose applications were denied?

The AG approved release of "all . . . application approvals and denials." Denial does not change the FOIA analysis: it is still a personnel record, and the same disclosure-with-redaction approach applies.

Could the city have refused to release the records altogether?

Probably not. The AG signaled that personnel records of a publicly funded benefit program are typically subject to disclosure with redactions. A blanket refusal would have been hard to defend under the Young test.

What does this opinion mean for other cities running residency or other employee-incentive programs?

It confirms a workflow: classify the applications as personnel records, run the Young balancing test, redact the standard list of personal identifiers and any program-specific sensitive fields, and release the rest. The AG's redaction list is a useful starting checklist for any city HR custodian.

Why did the AG repeatedly stress catching employee ID numbers?

Because the custodian had missed them in some records. The AG used this opinion partly to underscore that "great care must be exercised to ensure that all information on the records that is not subject to disclosure is properly redacted prior to release." Missing one field on one document can be enough to make the release problematic.

Citations

Ark. Code Ann. sections 25-19-103(7)(A), 25-19-105(b)(10), 25-19-105(b)(12), 25-19-105(b)(13), 25-19-105(c)(1), 25-19-105(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; Op. Att'y Gen. 2014-094; Op. Att'y Gen. 2007-070; Op. Att'y Gen. 2007-064; Op. Att'y Gen. 2006-035; Op. Att'y Gen. 2003-153; Op. Att'y Gen. 2007-025; Op. Att'y Gen. 2004-167; Op. Att'y Gen. 2005-194; Op. Att'y Gen. 2003-385; Op. Att'y Gen. 98-126; Op. Att'y Gen. 2001-080; Op. Att'y Gen. 2010-044.

Source

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

Original opinion text

Opinion No. 2018-101
August 21, 2018

STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Ashley Boswell, FOIA Coordinator
City of Little Rock
Human Resources Department
500 West Markham, Suite 130W
Little Rock, AR 72201-1428

Dear Ms. Boswell:

You have requested my opinion regarding the Arkansas Freedom of Information Act ("FOIA"). Your request is made pursuant to 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 someone has requested copies of "all [City of Little Rock employee] Residency Incentive Program application[] approvals and denials since the program was enacted." You have determined that the requested records are subject to release under the FOIA, and you have attached redacted and unredacted copies of the responsive records for my review. You ask whether your decision to release the records is consistent with the FOIA.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. I take it from your request for my opinion that you, as the records custodian, have classified the records at issue as the employee applicants' personnel records, and have determined that the records are subject to release as redacted. Having reviewed the records, it is my opinion your decision to classify the records as personnel records and to release them, as redacted, is mostly consistent with the FOIA. However, additional redactions must be made prior to the records' disclosure. I will set out all the definitions and standards and then apply them to the records you attached.

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 the City of Little Rock, which is a public entity subject to the FOIA. Furthermore, 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 [are] 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.

Therefore, in my opinion, these documents 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. 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.

As stated above, it appears from your request for my opinion that you, as the records custodian, have determined that the records at issue are city employees' personnel records. I concur with this determination. I will therefore limit my discussion to the test for disclosure relating to those types of records.

The FOIA does not define the term "personnel records." 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 also 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. And whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact.

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;
• 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 (Ark. Code Ann. § 25-19-105(b)(10));
• Driver's license numbers;
• Insurance coverage;
• Tax information or withholding;
• Payroll deductions; and
• Banking information.

III. Application.

It appears from your request, that you have classified the records presented for my review as the personnel records of City of Little Rock employees who have applied for the City's Residency Incentive Program. If this is the case, then, in my opinion, this decision is consistent with the FOIA.

Moreover, it is my opinion that the redactions you have made to the responsive records are mostly consistent with the FOIA. However, I noticed some instances where employee identification numbers had not been redacted from a record. All employee ID numbers, no matter where they may be found on the records, must be properly redacted prior to the records' release.

In conclusion, the decision to classify the documents submitted with your request as personnel records subject to disclosure, but with redactions, is mostly consistent with the FOIA, in my opinion. But I would hasten to emphasize that great care must be exercised to ensure that all information on the records that is not subject to disclosure is properly redacted prior to release.

Sincerely,

LESLIE RUTLEDGE
Attorney General