Can a former Arkansas Department of Human Services employee block release of her personnel file by arguing the requester wants it 'for personal gain'?

Plain-English summary

Brooke Smith, a former Arkansas Department of Human Services employee, objected to the custodian's plan to release redacted copies of her personnel file. She told the Attorney General that the requester had "no viable reason for [your] personal record except for personal gain." The AG had not seen the requested documents, so she could not decide whether any specific record should be released or whether particular information needed redaction. She did say the requester's identity or motive is "generally irrelevant" to whether FOIA requires release.

The AG explained that the custodian must classify each responsive document as a personnel record, evaluation record, or other public record and then apply the appropriate disclosure test. A personnel record is open unless disclosure would be a "clearly unwarranted invasion of personal privacy" under the objective Young v. Rice balancing test. Employee evaluation records have a separate four-condition release test. Smith's claim about the requester's personal gain was "not a legally sufficient reason" to withhold records under either category. The AG did not, however, endorse release of Smith's entire file; she said she "cannot definitively opine" on the custodian's proposed release without the documents.

Currency note

Issued September 13, 2018. The opinion explains the FOIA standards the custodian had to apply then, without deciding the release of specific records. Check current law and the actual records before relying on it.

What the custodian must examine

The opinion sets out three general FOIA elements: a covered entity, a public record, and no exception allowing it to be withheld. ADHS is a public entity and records it keeps carry a rebuttable presumption of being public records. The remaining work belongs to the custodian, who must classify responsive records and consider any applicable exception.

For personnel records, Young v. Rice requires an objective balance of the public interest in access against the individual's privacy interest. The custodian first determines whether the information is personal or intimate enough to create more than a minimal privacy interest. If so, the custodian weighs it against the public interest, with the scale tipped toward disclosure. The subject employee's own view that release is unwarranted does not replace that test. The opinion also lists information that may require discrete redaction from an otherwise releasable document, including personal contact information, Social Security numbers, and medical information.

For evaluation records, the custodian must apply the separate test requiring suspension or termination, a final administrative resolution, the records forming a basis for that decision, and a compelling public interest. The AG had no documents to classify in Smith's case. Her answer addressed the motive objection, not the content of an evaluation or personnel file.

Common questions

Did the AG approve release of every document in Smith's file?

No. She had not seen any responsive documents and could not decide a particular release or redaction. She said the custodian must classify the records and apply the corresponding tests.

Can the subject employee stop release by alleging the requester wants personal gain?

The AG said that was not a legally sufficient reason for withholding. She described the disclosure tests as objective and the requester's identity and motive as generally irrelevant. A record may still be withheld if an actual FOIA exception applies after the required analysis.

Did the opinion identify a lawsuit or court remedy for feared misuse?

No. It does not discuss a judicial remedy or decide whether the requester would misuse the information. It addresses how the custodian must evaluate the FOIA request.

Does the former employee's own objection prove an invasion of privacy?

No. The opinion says the subject's belief that release invades privacy is irrelevant to the objective personnel-records test. The custodian must assess the record's content and the public interest under Young.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), (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); Op. Att'y Gen. 2014-094.

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTOR N EY GENERAL
LES LI E RUTLED GE

Opinion No. 2018-111

September 13, 2018

Ms. Brooke Smith
12614 Highway 253
Fort Smith, AR 72916

Dear Ms. Smith:

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 your former employer, the Arkansas Department of Human Services (ADHS), has received a FOIA request for your personnel file. The custodian has decided to disclose redacted copies of your records in response to the request. You object to this disclosure stating that this requester "has no viable reason for [your] personal record except for personal gain." You ask whether the custodian has properly decided to release the requested records.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any documents that would be responsive to the FOIA request for your records, I cannot opine about the releasability of any specific record or the need to redact any specific piece of information from an otherwise releasable record. But I can state that the identity or motive of the person making a FOIA request is generally irrelevant to the question whether a record must be released under the FOIA.

323 C ENTE11. STREET. SU ITE 200 · LITTL E ROC K. A l1.K/\N SAS 72201 TELE PH ONE (5 01) 682-200 7 · FAX (501) 682-8084 ARKAN SAS AG .GOV

Ms. Brooke Smith
Opinion No. 2018-111
Page 2

I will set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. As explained below, these records can include both "personnel" and "evaluation" records. It is the responsibility of the custodian, in the first instance, to properly classify the responsive records and apply the applicable test for disclosure.

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 element is clearly met. The request was made to the ADHS, which is a public entity subject to the FOIA. With regard to the second element, 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

Not having seen any of the responsive records in question, I cannot definitively opine on whether they are "public records" under this definition. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis 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. 3 For purposes of the FOIA, these items can usually 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

Ms. Brooke Smith
Opinion No. 2018-111
Page 3

be divided into two mutually exclusive groups: "personnel records" 4 or "employee 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

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, TI-IE 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. ...
[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)(! ): "Notwithstanding subdivision (b )(12) 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).

Ms. Brooke Smith
Opinion No. 2018-111
Page 4

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 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:

8
308 Ark. 593, 826 S.W.2d 252 (1992).
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.

Ms. Brooke Smith
Opinion No. 2018-111
Page 5

• 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);
• 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)(10));
• 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:

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.

Ms. Brooke Smith
Opinion No. 2018-111
Page 6

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);
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

As for the final prong, the FOIA never defines the key phrase "compelling public interest." But the leading commentators on the FOIA, referring to this office's opinions, have offered the following guidelines:

[I]t seems that the following factors should be considered in determining whether a compelling public interest is present: ( 1) the nature of the infraction that led to suspension or termination, with particular concern as to whether violations of the public trust or gross incompetence are involved; (2) the existence of a public controversy related to the agency and its employees; and (3) the employee's position within the agency. In short, a general interest in the performance of public employees should not be considered compelling, because that concern, at least theoretically, always exists. However, a link between a given public controversy, an agency associated with the controversy in a specific way, and an employee within the agency who commits a serious breach of public trust should be sufficient to satisfy the "compelling public interest" . 18 requirement.

These commentators also note that "the status of the employee" or "his rank within the bureaucratic hierarchy" may be relevant in determining whether a "compelling public interest" exists, 19 which is always a question of fact that must be determined, in the first instance, by the custodian after he considers all the relevant information.

17
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.
18
Watkins, et al., at 238-39 (footnotes omitted).
19
Id. at 237 (noting that "[a]s a practical matter, such an interest is more likely to be present when a high- level employee is involved than when the [records] of 'rank-and-file' workers are at issue.").

Ms. Brooke Smith
Opinion No. 2018-111
Page 7

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. 20

III. Application.

I have not reviewed the actual records at issue, and therefore, I cannot definitively opine on whether the custodian's decision to release redacted copies is consistent with the FOIA. The custodian must properly classify the responsive records and apply the applicable test for disclosure, as discussed above.

With regard, however, to your objection to the records' release, I will note that the basis for your objection is not a legally sufficient reason to withhold your personnel or evaluation records. You object to the release of your records to the individual who made the FOIA request because you say he seeks the records "for personal gain." But a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. 21 As stated above, the test for the release of employee-related records is an objective one, meaning that 22 the custodian's analysis cannot be based on a requester's subjective motive.

Sincerely,

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L /,#JI"?
LESLIE RUTLEDGE
Attorney General

2
°Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
21
See Ops. Att'y Gen. 2014-094, 2012-014, 2011-107.
22
Op. Att'y Gen. 2014-094 (noting that "neither the Arkansas legislature nor our appellate courts have allowed custodians to consider the subjective motive of the requester.").