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

In September 2018, Brooke Smith, a former Arkansas Department of Human Services employee, learned that ADHS had received a FOIA request for her personnel file. The custodian had decided to disclose redacted copies. Smith objected, telling the AG the requester "has no viable reason for [her] personal record except for personal gain." She asked Attorney General Leslie Rutledge to review under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG's response was procedurally limited but substantively clear. Without the actual records in front of the AG, the office could not opine on any specific document-by-document release decision or any specific redaction. But the AG could and did say one thing flatly: "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." The personnel-records test in Ark. Code Ann. § 25-19-105(b)(12) is objective. Whatever the requester's purpose, the analysis runs through Young v. Rice's two-step balancing test (does the information rise above a de minimis privacy interest? if so, does the public interest in disclosure outweigh that privacy interest?), without considering who is asking or why.

The AG laid out the same legal framework that appears in the parallel 2018 personnel-records opinions: the personnel-records exception, the Young v. Rice balancing test, the standard list of items that must be redacted (personal contact info, employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical info, undercover law-enforcement identifiers, driver's license info, insurance coverage, tax and withholding info, payroll deductions, and banking info), and the employee-evaluation alternative under § 25-19-105(c)(1) with its four-prong test for release. The custodian had to classify each record properly and apply the right test. The fact that Smith was a former employee did not change the analysis; her status as the records' subject still entitled her to the AG-review channel under § 25-19-105(c)(3)(B)(i).

The opinion's bottom line: the custodian's choice to release was not undermined by Smith's objection. If she wanted to challenge specific document classifications or specific redactions, she would need to point to specific records and articulate a privacy interest that the Young v. Rice test would protect.

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

Arkansas's FOIA presumes public records are open. The personnel-records exception in Ark. Code Ann. § 25-19-105(b)(12) protects records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992), sets out the two-step balancing test, with the burden on the person resisting disclosure (Stilley v. McBride). The test is objective; the subject employee's preferences and the requester's motives do not control. Section 25-19-105(c)(3)(B)(i) lets the custodian, the requester, or the subject of personnel or employee-evaluation records seek an AG opinion. Section 25-19-105(c)(2) gives every public employee an unconditional right to access their own personnel and evaluation records. Former employees are still subjects of their personnel records and retain access and review rights.

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.

Common questions

Why doesn't requester motive count?
Because the FOIA's personnel-records test focuses on whether the records shed light on the workings of government, not on which member of the public is asking. The Arkansas legislature and courts have not authorized custodians to consider the subjective motives of requesters. See Op. Att'y Gen. 2014-094.

Does it matter that I'm a former employee, not a current one?
Not for the personnel-records test. Records about former employees go through the same classification (personnel record vs. employee-evaluation record) and the same disclosure tests as records about current employees.

Can I sue if I'm worried the requester will misuse the file?
The AG noted that judicial remedy may be available in extraordinary circumstances, but only a court can hear that kind of evidence and craft a remedy. The administrative pathway, including AG review under § 25-19-105(c)(3)(B)(i), applies the objective test.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(c)(1) (employee-evaluation records exception, four-prong test)
• Ark. Code Ann. § 25-19-105(c)(2) (subject's right of access to own records)
• Ark. Code Ann. § 25-19-105(c)(3)(B)(i) (right to seek AG opinion)
• Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992) (two-step balancing test)
• Stilley v. McBride, 332 Ark. 306, 965 S.W.2d 125 (1998) (burden on person resisting disclosure)
• Ops. Att'y Gen. 2018-121, 2018-125, 2014-094, 2010-044, 99-147

Source

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

Original opinion text

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.

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

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 the FOIA does not police the requester's identity or subjective motive in this manner. The personnel-records test is objective. The custodian's analysis cannot be based on a requester's subjective motive.

Sincerely,
Leslie Rutledge
Attorney General