Can a city release a public employee's personnel file and city ID photo over the employee's objection under Arkansas FOIA?

Plain-English summary

In October 2018, the City of Little Rock received a FOIA request for the personnel file and city ID photograph of administrative technician Kyra McTyer. The records custodian decided the file was a personnel record subject to release with redactions, and that no personal information like address, date of birth, telephone number, or Social Security information would be released. McTyer, the subject of the records, objected. She questioned the requester's need for the information and expressed concern about it going to that specific person. She asked Attorney General Leslie Rutledge to review the custodian's decision under Ark. Code Ann. § 25-19-105(c)(3)(B)(i).

The AG sided with the custodian on the photograph and on the framework. The AG had not seen the actual records, so it could not opine on individual document-level decisions. But two principles were clear. First, records depicting public employees, including ID photographs, are generally subject to disclosure under the personnel-records test. The Arkansas Supreme Court's two-step balancing test from Young v. Rice asks whether the information rises above a de minimis privacy interest, and if so, whether that privacy interest outweighs the public interest in disclosure. The thumb on the scale favors disclosure, and the burden is on the person resisting release. A photograph of a public employee in their public-facing role rarely tips that balance.

Second, and more importantly for the AG's analysis, the requester's identity and motive do not enter the calculation. The personnel-records test under Arkansas FOIA is entirely objective. The AG explicitly told McTyer that her concern about the specific requester was not a "legally sufficient reason to withhold the records." Some judicial remedy might be available if a court found extraordinary facts, but a custodian responding to a FOIA request cannot decide based on who is asking or why.

The AG noted that the custodian had already committed to redacting address, date of birth, telephone number, and Social Security information, which is the standard list. The AG did not specifically opine on the rest of the file because it had not seen the records.

This opinion served as the lead opinion for a related cluster of FOIA objections from other city employees subject to the same request (Opinions 2018-126, 2018-127, and 2018-128, all of which incorporated this analysis by reference).

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. A document held by a public entity is presumptively a public record under Ark. Code Ann. § 25-19-103(7)(A). Two FOIA exceptions matter most for employee files: the personnel-records exception in § 25-19-105(b)(12) and the employee-evaluation exception in § 25-19-105(c)(1). The two are mutually exclusive.

The personnel-records exception protects records "to the extent that disclosure would constitute a clearly unwarranted invasion of personal privacy." The standard list of items the AG has said must always be redacted includes 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 information, insurance coverage, tax and withholding information, payroll deductions, and banking information.

The employee-evaluation exception is narrower in different ways: those records are open only after final administrative resolution of a suspension or termination at which the records form the basis for the decision, and only if there is a compelling public interest in disclosure. See Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of "employee evaluation or job performance records").

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 on the custodian's planned release decision.

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

Can I sue if I think a requester will misuse my personnel information?
The opinion notes that "some judicial remedy may be available," but only a court can hear evidence about extraordinary facts and fashion a remedy. The FOIA's administrative pathway, including AG review, applies an objective standard.

Are there exceptions for employees in sensitive roles?
Yes. Section 25-19-105(b)(10) protects information identifying certain undercover law-enforcement officers. Other categories of sensitive employees (judges, abuse-shelter staff) may have separate statutory protections. The general rule that public-employee photos and personnel files are disclosable does not apply where another statute affirmatively shields the employee.

What standard list of items must be redacted from a personnel file?
Personal contact information (personal phone numbers, personal email addresses, home addresses), employee personnel numbers, marital status and dependents, dates of birth, Social Security numbers, medical information, undercover law-enforcement identifiers, driver's license numbers, insurance coverage, tax information and withholding amounts, payroll deductions, and banking information.

How is this different from an "employee evaluation" record?
Employee evaluation or job performance records (records created by the employer to evaluate the employee's performance) are open only when (1) the employee was suspended or terminated, (2) there has been a final administrative resolution, (3) the records formed the basis for the suspension or termination, and (4) there is a compelling public interest in disclosure. A general personnel file or an ID photo is not an evaluation record.

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)(1) (employee evaluation or job performance records exception)
• 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)
• Thomas v. Hall, 2012 Ark. 66, 399 S.W.3d 387 (definition of "employee evaluation or job performance records")
• Ops. Att'y Gen. 2018-121, 2018-087, 2018-061, 2016-055, 2014-094, 2012-014, 2012-001, 2011-107, 2011-003, 2009-067, 2008-065, 2008-004, 2007-225, 2007-213, 2007-070, 2007-064, 2006-176, 2006-038, 2006-035, 2005-194, 2005-030, 2004-260, 2004-167, 2003-385, 2003-336, 2003-153, 2003-073, 2001-112, 2001-080, 2001-022, 99-147, 98-126, 98-006, 98-001, 97-368, 97-222, 96-168, 95-351, 94-306, 94-198, 93-055
• John J. Watkins, Richard J. Peltz-Steele & Robert Steinbuch, The Arkansas Freedom of Information Act 202-39 (Arkansas Law Press, 6th ed., 2017)

Source

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

Original opinion text

Opinion No. 2018-125
October 10, 2018
Kyra McTyer, Administrative Technician
Department of Housing & Neighborhood Programs
500 West Markham, Suite 120W
Little Rock, AR 72201

Dear Ms. McTyer:

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 City of Little Rock has received a request under the FOIA for your personnel file, including your city identification photograph. The custodian has determined that the requested records are personnel records that are releasable pursuant to the FOIA. The custodian has also determined that "[n]o information like address, date of birth, telephone number or social security information is releasable." You object to the release of your file and photograph to the person who has submitted the FOIA request. You question his need for the information, and you express concern about the information being released to this specific requester.

RESPONSE

My statutory duty is to state whether the custodian's decision is consistent with the FOIA. Because I have not seen any records that the custodian deemed responsive to the request for your personnel file, I cannot opine on the release of any specific document or the need to redact any specific piece of information from an otherwise releasable document. I can only set out the legal standards the custodian must apply to determine whether certain employee-related records must be disclosed. In this regard, I will note that records depicting public employees are generally subject to disclosure under the test for personnel records. Thus, in my opinion, the custodian's decision to release your photograph is likely consistent with the FOIA.

Additionally, the requester's identity or motive for making the request is generally irrelevant to whether a record must be released. That is because the test for the release of personnel records is entirely objective, meaning that the custodian does not consider the subjective motives or identity of the requester.

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. 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 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 ...."

Because the records are held by a public entity, they are presumed to be public records, although that presumption is rebuttable. The custodian appears to have determined that they are public records. Not having seen any of the records in question, I cannot definitively opine as to that determination. But if we presume, as we must, that the records are public records as defined in the FOIA, the analysis then 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. 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.

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. 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 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 records may consider release of the records an unwarranted invasion of personal privacy is irrelevant to the analysis because the test is objective. 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 (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 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 the job. This exception includes records generated while investigating allegations of employee misconduct that detail incidents that gave rise to an allegation of misconduct.

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).

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' 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, 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.

III. Application.

Because I have not seen any records that are responsive to the request for your personnel file, I cannot specifically opine on whether the custodian's decision is consistent with the FOIA. The custodian must properly classify the responsive records based on the above definitions and apply the appropriate disclosure test(s).

With regard, however, to your objection to the records' release, the basis for your objection does not appear to be a legally sufficient reason to withhold the records. I do not know precisely what personal information is contained in the records, but the custodian has stated that your address, date of birth, telephone number, and Social Security number will not be released. Additionally, regarding your photograph, this office has consistently opined that records depicting public employees ordinarily are subject to disclosure under the test for personnel records.

And finally, a FOIA requester's identity or motive for making the request is generally irrelevant to whether a record must be released. The test under the FOIA for the release of personnel records asks whether, as an objective matter, the records in question shed light on the workings of government for the general public. The custodian's analysis cannot be based on a requester's subjective motive. Some judicial remedy may be available to you, but only a court has the authority to hear such evidence and fashion an appropriate remedy.

In sum, while I cannot opine on the release of any specific record contained in your personnel file, I believe the custodian's decision to release your photograph is likely consistent with the FOIA.

Leslie Rutledge
Attorney General