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

The Arkansas Department of Environmental Quality planned to release Timothy Clevenger's personnel file with redactions. It gave him both redacted and unredacted copies to review. He identified no specific objection but asked whether anything more should be removed. After reviewing the records, the Attorney General said the custodian's release decision was "mostly consistent with the FOIA" and the required redactions appeared to have been made, with one exception: "the photocopy of your driver's license must be entirely withheld."

The AG classified the reviewed records as public records and personnel records. Such records are subject to disclosure unless release would be a clearly unwarranted invasion of personal privacy. She found the custodian's redactions proper under that test except for the license photocopy. She encouraged Clevenger to review the records himself to ensure all discrete information commonly requiring redaction had been caught.

The opinion addresses this employee's file and the photocopy of his driver's license. It does not decide the FOIA status of passport copies, military IDs, other state IDs, or digital scans. It also does not give a separate explanation based on the license's photograph, signature, or usefulness after redaction. Those possible distinctions require their own source and analysis.

Currency note

Issued September 24, 2018. The opinion reviews particular records under the FOIA as applied then. Check current law and the specific document before relying on it.

How the privacy test applies

The AG explains that a requested document is releasable when the request reaches a covered entity, the document is a public record, and no exception permits withholding. The reviewed ADEQ file met the public-record and personnel-record definitions. For personnel records, the custodian uses the Young v. Rice balance between public access and personal privacy, with the scale tipped toward disclosure.

Even when a document as a whole meets the release test, the opinion says some discrete information must be redacted. It lists public employees' personal contact details, personnel numbers, dates of birth, Social Security numbers, medical information, driver's license numbers, insurance and tax information, payroll deductions, and banking information, among other examples. The AG found the custodian had generally done this work and identified the license photocopy as the remaining item requiring complete withholding.

The AG's conclusion was based on records supplied for her review. She did not state a blanket rule for all identification documents. A custodian dealing with another record still has to classify that record and apply the applicable FOIA provisions.

Common questions

Could ADEQ release the license photocopy after redacting its number?

The AG said the photocopy itself "must be entirely withheld" in this file. The opinion does not explain whether a differently redacted version would ever be releasable in another case.

Does the ruling cover passports or military identification?

No. The reviewed item was Clevenger's driver's license photocopy. The opinion makes no finding about other kinds of identification documents.

Were all other records in the file exempt?

No. The AG said the records were personnel records subject to disclosure under the privacy test and that ADEQ's decision to release them as redacted was mostly consistent with FOIA. She identified the driver's license photocopy as the exception.

Why did the AG ask Clevenger to review the file himself?

She said it was to ensure the custodian had redacted all discrete pieces of information that commonly appear in personnel records. She did not identify another missed item beyond the license photocopy.

Citations

Ark. Code Ann. §§ 25-19-103(7)(A), 25-19-105(b)(12), (b)(13), (c)(3)(B)(i); Young v. Rice, 308 Ark. 593, 826 S.W.2d 252 (1992).

Source

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

Original opinion text

STAT E O F ARKAN SAS
ATTO RNEY G ENERAL
LE SLI E RUTLED GE

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 (AEDQ) 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

323 CE NTE I~ ST REET. Su 1n 200 . LI TTLE ROC K, ARKAN SAS 72201 TE LEP H ONE (5 01) 682-200 7 ·FAX (50 1) 682-8084 ARKAN SASAG.GOV

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 2

that the custodian has made all required redactions. 1 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

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 are clearly met. The request was made to ADEQ, which is a public entity subject to the FOIA. And the request pertains 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 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 .... 2 There is a rebuttable presumption that documents kept by an entity subject to the FOIA are public records. 3

In my opinion, the records at issue are clearly public records under this definition and must be disclosed unless some specific exception provides otherwise.

1
I must also note that the custodian has made several redactions that are questionable from the face of the records. There is no clear basis, in my opinion, for redacting the personal contact information of job references unless those individuals are current or former public employees. See Ops. Att'y Gen. 2016-129 and 2008-053 (citing Ark. Code Ann. 25-19-105(b)(l3), which exempts from public disclosure the [p]ersonal contact information ... of nonelected ... employees contained in employer records .... ").

2
Ark. Code Ann. § 25-19-103(7)(A) (Supp. 2017).
3
See Op. Att'y Gen. 2010-044.

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 3

II. Exceptions to disclosure.

Under certain conditions, the FOIA exempts two groups of items normally found in employees' personnel files. 4 For purposes of the FOIA, these items can usually be divided into two mutually exclusive groups: "personnel records" 5 or "employee evaluation or job performance records." 6 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. 7 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 4 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 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 & Robert Steinbuch, THE ARKANSAS FREEDOM OF INFORMATION Acr 205-06 (Arkansas Law Press, 6th ed., 2017).

5
Ark. Code Ann.§ 25-19-105(b)(l2): "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." 6 Ark. Code Ann. § 25-19-105( c )(I): "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." 7 See, e.g., Ops. Att'y Gen. 2015-072, 99-147; Watkins, et al., at 202.

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 4

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." 8

While the FOIA does not define the phrase "clearly unwarranted invasion of personal privacy," the Arkansas Supreme Court, in Young v. Rice, 9 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. 10

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. 11 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. 12 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. 13 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. 14

8
Ark. Code Ann.§ 25-19-105(b)(12).
9
308 Ark. 593, 826 S.W.2d 252 (1992).
10
Watkins, et al., at 208.
11
Young, 308 Ark. at 598, 826 S.W.2d at 255.
12
Id., 826 S.W.2d at 255.
13
Stilley v. McBride, 332 Ark. 306, 313, 965 S.W.2d 125, 128 (1998).
14
E.g., Ops. Att'y Gen. 2016-055, 2001-112, 2001-022, 94-198; Watkins, et al., at 207.

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 5

Whether any particular personnel record's release would constitute a clearly unwarranted invasion of personal privacy is always a question of fact. 15

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 (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 )(1 O));
• Driver's license number and photocopy of driver's license (Op. Att'y Gen.
  2017-125, 2013-090);
• 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

15
Ops. Att'y Gen. 2006-176, 2004-260, 2003-336, 98-00 I.

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 6

the job. 16 This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct. 17

If a document meets the above definition, the document cannot be released unless all the following elements have been met:

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). 18

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

16
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. 17 Thomas, 2012 Ark. 66, at 9-10, 399 S.W.3d at 392-93.
18
Ark. Code Ann.§ 25-19-105(c)(l); Op. Att'y Gen. 2008-065.

Mr. Timothy Clevenger
Opinion No. 2018-117
Page 7

trust should be sufficient to satisfy the "compelling public interest" • 19 reqmrement.

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, 20 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.

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. 21

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. 22 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,

~~;;;::>_ /.. //~'fa
LESLIE RUTLEDGE
Attorney General

19
Watkins, et al., at 238-39 (footnotes omitted).
20
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.").

21
Cf Op. Att'y Gen. 96-168; Watkins, et al., at 223.
22
See supra n. l.