When the Arkansas Department of Environmental Quality releases an employee's personnel file under FOIA, must a photocopy of the employee's driver's license be entirely withheld?

Plain-English summary

In September 2018, the Arkansas Department of Environmental Quality (ADEQ) received a FOIA request for the personnel file of employee Timothy Clevenger. ADEQ provided Clevenger with both redacted and un-redacted copies for his review. He raised no specific objection to release; he instead asked Attorney General Leslie Rutledge to look at the file and identify any further items that should be redacted or removed.

The AG reviewed the actual records and concluded the custodian's redaction work was mostly correct. The records met the definition of public records and qualified as personnel records under Ark. Code Ann. § 25-19-105(b)(12). Personnel records must be released subject to redaction of the standard list of items: personal contact information, employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical information, undercover law-enforcement identifiers, driver's license numbers and photocopies, insurance coverage, tax and withholding information, payroll deductions, and banking information. The custodian had redacted those items.

But the AG flagged one mistake. The file contained a photocopy of Clevenger's driver's license. The AG's prior opinions (e.g., Op. Att'y Gen. 2017-125, 2013-090) treat a photocopy of a driver's license differently from a redacted reference to the license number. The license number can be redacted from a release, but a photocopy of the license itself must be withheld in full because the photo, signature, address, and other details on the license card all sit alongside the number, and you cannot meaningfully redact a license card to release a useful version. So the AG's recommendation was: pull the photocopy of the driver's license entirely from the release. With that correction, the custodian's release was consistent with the FOIA.

The AG also gave Clevenger a practical instruction: review the records yourself to make sure the custodian has caught every discrete item from the standard redaction list. The AG looked at the file but flagged that the employee himself is the best-positioned person to spot anything personally identifying that might still be in the file. The opinion did not change the underlying decision to release; it just sharpened it.

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's two-step balancing test governs the release decision, with a thumb on the scale favoring disclosure.

Even when a personnel record as a whole is releasable, certain discrete items must be redacted: personal contact information (§ 25-19-105(b)(13)); employee personnel numbers; marital status and dependents; dates of birth; Social Security numbers; medical information; undercover law-enforcement identifiers (§ 25-19-105(b)(10)); driver's license numbers and photocopies of driver's licenses; insurance coverage; tax and withholding information; payroll deductions; and banking information.

Section 25-19-105(c)(3)(B)(i) lets the custodian, requester, or subject seek AG review.

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 withhold a photocopy of the driver's license entirely instead of just redacting the number?
A driver's license card carries the license number, the licensee's photograph, signature, address, date of birth, license class, height, weight, eye color, and similar details. Redacting just the number leaves all the other personally identifying information visible. The AG's view is that the photocopy as a whole is the protected item, not just the number printed on it.

Does this apply to other ID photocopies?
The AG's reasoning would extend to any photocopy of an identification document containing similar bundled personal information (passports, military IDs, state-issued IDs). The opinion specifically addressed driver's license photocopies, but the underlying logic (you cannot meaningfully redact an ID card to release a useful copy) applies broadly.

What about a digital scan of the license stored in a personnel system?
Same analysis. The format does not matter; the protected information is the bundled identifying content of the ID card.

Why did the AG tell me to review the records myself?
Because the AG looks at the records once, on a focused basis. The employee is in a better position to spot personal information that the AG might miss because the employee knows what is in the file and what items count as personally identifying. The AG-review channel under § 25-19-105(c)(3)(B)(i) is meant to be a safety check, not the final word.

Citations

• Ark. Code Ann. § 25-19-103(7)(A) (definition of "public records")
• Ark. Code Ann. § 25-19-105(b)(10) (undercover law-enforcement identifier exemption)
• Ark. Code Ann. § 25-19-105(b)(12) (personnel-records exception)
• Ark. Code Ann. § 25-19-105(b)(13) (personal contact information redaction)
• 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. 2017-125, 2014-094, 2013-090, 2007-070, 2007-064, 2006-176, 2006-035, 2005-194, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-001, 97-368, 94-198 (cited as authority on specific redaction categories)
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 202-08 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2018-117
September 24, 2018
Mr. Timothy Clevenger
Arkansas Department of Environmental Quality
5301 Northshore Drive
North Little Rock, AR 72118

Dear Mr. Clevenger:

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 Environmental Quality (ADEQ) has received a request for your personnel file under the FOIA. It is my understanding that ADEQ has determined that your file is disclosable pursuant to the FOIA and has provided you with redacted and un-redacted copies of the records for your review. You have cited no specific objections to the release of the records. You instead seek an opinion from this office "on whether there are further items that can be redacted and/or removed" prior to the records' release.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Having reviewed the records, it is my opinion that the custodian's decision to release them as redacted is mostly consistent with the FOIA. In my opinion, your driver's license must be entirely withheld. With this exception, it appears that the custodian has made all required redactions. However, I encourage you to review the records carefully yourself, to ensure that the custodian has redacted all of the discrete pieces of information that commonly appear in these kinds of records.

I will set out all the definitions and standards and then apply them to the records you attached.

DISCUSSION

III. Application.

Having reviewed the records at issue, it is my opinion that the custodian's decision to release them as redacted is mostly consistent with the FOIA. The records plainly meet the definition of "public records." Furthermore, the records all meet the definition of "personnel records." Thus, the custodian has correctly determined that they are subject to disclosure unless doing so would constitute a clearly unwarranted invasion of personal privacy. It is my opinion that with one exception, the custodian has properly redacted the records under this test. In my opinion, the photocopy of your driver's license must be entirely withheld.

Sincerely,
Leslie Rutledge
Attorney General